Two new abortion bans to become law in Wyoming

Gov. Mark Gordon signed a bill banning medication-induced abortions Friday night and will allow another near-complete ban to go into effect without his signature. 

“As I noted, I have a strong record of protecting the lives of the unborn, as well as their mothers,” he said in a letter to the Secretary of State. “I believe all life is sacred and that every individual, including the unborn, should be treated with dignity and compassion.”

Gordon raised concerns that further litigation with these bills could delay implementation of any bans. He also noted that there are inconsistent penalties listed in the two pieces of legislation. One includes misdemeanor charges while the other threatens a felony. 

“I recognize that [the two bills] were delivered by the same Legislature, so I must presume the Legislature understood that these inconsistencies could create confusion regarding restrictions on abortions,” he stated. “That said, a majority of the Legislature spoke on this matter and consequently I have acted without bias and after extensive prayer, to allow these bills to become law.”

Last week, Gordon told reporters he was weighing potential unintended consequences and constitutional challenges as he considered the bans. 

Referencing his decision to let the near-total ban go into effect, he stated, “while it may offer some improvement to the bill I signed just last year, I believe now more than ever that if the Legislature seeks final resolution on this important issue, it ultimately may have to come through a Constitutional amendment.”

Lawmaker concerns about constitutional issues leading to more litigation have already proven to have merit.

The same group suing over the ban passed last year filed suit again Friday morning over the near-total ban, according to reporting by Jackson Hole Community Radio. 

The plaintiffs, which include health care providers and not-yet-open abortion clinic Wellspring Health Access, are also suing the same defendants. That includes the state, governor, attorney general, Teton County Sheriff and the Jackson chief of police. 

The history

Gordon signed a trigger ban on abortion into law almost exactly a year ago: March 15, 2022. It was written to go into effect if the U.S. Supreme Court overturned Roe v. Wade — which it did in June. 

A group of medical professionals, women and nonprofits filed a lawsuit over the new law, and the district court judge overseeing that case later granted a temporary restraining order and a preliminary injunction, which kept the ban from going into effect.

After some legal wrangling and the Wyoming Supreme Court declining to take up the matter, the case is now back before Ninth District Court Judge Melissa Owens and is set to be heard in Jackson this coming December. 

Some legislators argued that the state should wait to learn that law’s fate in the courts before passing other, similar bans.

Sen. Ed Cooper (R-Ten Sleep) voted for House Bill 152 – Life is a Human Right Act — the near complete ban — but admitted on the Senate floor he wasn’t sure about how it’d work alongside the current law. 

“What will the passing of this bill do to the current legislation that’s in the courts? Does it negate it?” he asked. “And if it does … probably that means this will be in the courts, and we’re back another year, two years further back. I’m pretty worried about that.”

Other senators spoke out more strongly in opposition to passing HB 152. 

“I fail to see what this bill accomplishes in supplementation to the bill that is now in the court system of Wyoming,” Sen. Cale Case (R-Lander) said. “When the courts rule, the courts will rule. And we’ll all stand there and look at each other and decide what to do then.”

Case added that he felt it violated Article 1, Section 7, of the Wyoming Constitution which states: “Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

Others argued that passing these new abortion bans reflects the Legislature’s anti-abortion intent and the “God-given” right to life they see enshrined in the state and U.S. Constitution. 

“Since Roe v. Wade has gone down, we need to just make a statement as this state that we’re going to protect life,” Sen. Bo Biteman (R-Ranchester) said, a cosponsor of the bill. “I don’t think it matters how much it costs. We have an obligation to protect life in this chamber and protect people’s constitutional rights.” 

Lawmakers have also said HB 152 shores up some possible loopholes. It defines terms like “pregnant” and “abortion,” and it states “abortion as defined in this act is not health care.” 

Plaintiffs in the ongoing legal challenge to last year’s trigger ban have argued that the ban violates the state constitution, which states: “Each competent adult shall have the right to make his or her own health care decisions.”

Senate File 109 – Prohibiting chemical abortions focuses solely on abortion induced by medications, though lawmakers in the House and Senate stated concerns about it meeting the same legal challenges as the bill currently tied up in court. 

Both abortion bans have exceptions in cases of rape or incest, though victims would have to report these crimes to law enforcement in order to qualify.

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