Wyoming Abortion Ruling Hinges on Health Care Freedom Amendment
Key Takeaways
The recent Wyoming abortion ruling was based on a constitutional amendment passed in 2012, which guarantees adults the right to make their own health care decisions.
The Wyoming Supreme Court abortion decision applied strict scrutiny to state laws restricting abortion, finding that the state failed to justify the restrictions under the health care freedom amendment.
State constitutional amendments on abortion rights, originally intended as political responses to the Affordable Care Act, are now being used to challenge abortion restrictions in several states.
Ballot measures and healthcare decisions remain closely linked, as lawmakers consider new constitutional amendments and potential changes to the Wyoming Supreme Court in response to the ruling.
The Wyoming Supreme Court surprised many last week when it struck down two state laws restricting access to abortions and abortion medication. How the Wyoming Justices arrived at this decision is notable for state policy professionals because the Court’s decision hinged on amendments to the constitution that voters approved in 2012 as a reaction to the Affordable Care Act (ACA). As I’ve noted in the past, ballot measures in general, and constitutional amendments in particular, are a blunt instrument of policymaking.
Health Care Freedom Amendments Origins and ACA Backlash
Recall that Congress passed and President Obama signed the ACA in March 2010. President Obama’s signature policy achievement quickly sparked a backlash that resulted in an electoral shellacking in the 2010 midterms. While the ACA is much more popular today, Republicans seized on the backlash and proposed ballot measures across the states to help spur turnout. These ballot measures were known as health care freedom amendments, which provided the right to adults to make their own healthcare decisions. Voters in six states ultimately approved these amendments to their state constitutions, but they were seen by policymakers as a political move without much substantive effect (federal law largely preempted states on this issue). That is, until recently.
Ohio Courts Test Health Care Freedom Amendments
Last year, an Ohio court partially overturned a gender-affirming care ban on the grounds that it violated the state’s 2011 health care freedom amendment. The state appealed that decision to the state supreme court, which reinstated the law until the Court rules on the merits of the case. And since Dobbs placed reproductive health decisions with the states, these broadly worded constitutional amendments guaranteeing access to health care have been used to challenge abortion restrictions.
In 2022, an Ohio judge issued a preliminary injunction against the state’s abortion restrictions, citing the state’s health care freedom amendment, which the judge said “bolsters the Ohio Constitution’s protection of liberty and personal autonomy and reinforces that these protections extend to Ohioans the right to make decisions about their own bodies — including the fundamental right to make a decision as private and as central to a person’s bodily integrity as the decision to have an abortion.” The case was ultimately resolved when Ohio voters approved a constitutional amendment in 2023 to protect reproductive rights in the state.
Wyoming Supreme Court Strikes Down Abortion Restrictions
Which brings us to Wyoming. In 2012, 77 percent of voters approved a legislatively referred constitutional amendment declaring that “each competent adult shall have the right to make his or her own health care decisions.”
Constitutional Amendment and Trial Court Decision
In 2024, a trial court cited this health care freedom amendment to block a pair of 2023 laws criminalizing abortions and banning medical abortions with limited exceptions. Opponents of these laws argued that abortion qualifies as health care under the state constitution — an argument the state supreme court ultimately accepted in a 4-1 decision.
Supreme Court Legal Standards and Ruling
The case then hinged on what level of scrutiny the Court would apply to the state in order to burden the right to make health care decisions. The supreme court’s decision found that a strict scrutiny standard should apply, which would require that the state show that these laws were narrowly tailored to serve a compelling government interest. The Court found that the state failed to meet that standard and ruled to overturn the state laws restricting abortion access and banning medical abortions.
Proponents of these laws pointed to a provision of the 2012 amendment that states that “the legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.” They argued that the Court should have used a lesser “reasonable and necessary” standard instead of strict scrutiny. The lone dissenting justice on the court agreed and would have found that the state met the “reasonable and necessary” standard in this case and one additional justice would also have applied the lesser standard, but found that the state did not even meet that standard in this case and signed on to the majority decision.
Legislative Response and Future Constitutional Battles
But this is almost certainly not the end of the story. Lawmakers are likely to send a new constitutional amendment to the voters to decide whether abortion should be a protected right. Additionally, lawmakers unhappy with the state supreme court’s decision reportedly have discussed a reduction in the number of justices on the state supreme court bench from five to three. The Wyoming Freedom Caucus, which now controls a majority of the Wyoming House, released a statement declaring the Court’s ruling “a stain on the Wyoming judicial branch” and citing “decades of liberal leadership in the governor’s office.”
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