Ruling doesn’t finish debate; Abortion opponents look to target rape, incest exemptions
Ruling doesn’t finish debate; Abortion opponents look to target rape, incest exemptions
By Victoria Eavis
Casper Star-Tribune
Via Wyoming News Exchange
CASPER — With the U.S. Supreme Court’s overturning of Roe v. Wade on Friday, Wyoming’s trigger law abortion ban is set to go into effect. Under the law, nearly all abortions will be outlawed in the state, save for those involving pregnancies that were the product of rape or incest.
But Marti Halverson, a former state lawmaker and president of Right to Life Wyoming, said the next step is to remove some of those exceptions.
Fresh off the heels of a historic triumph, abortion opponents in Wyoming are already gearing up to add even more restrictions to the practice.
This spring, lawmakers passed the trigger bill with the knowledge that an increasingly right-leaning Supreme Court was poised to overturn the landmark decision.
Sponsored by Rep. Rachel Rodriguez Williams, R-Cody, the law is expected to end most abortions in the state within the next 35 days.
“In Wyoming we are thrilled, we are so grateful to Representative Rodriguez-Williams for her 2022 House Bill 92, the trigger bill, and our next job is to delete the rape and incest exceptions, so that will be an issue on the campaign trail this summer,” Halverson said.
Lawmakers who support abortion rights are anticipating that effort as well.
Rep. Pat Sweeney, R-Casper, said it’s “highly probable” that there will be an effort to remove those exemptions during next year’s Legislative session.
“That’s my biggest concern in this next session, is making sure we leave that in,” Sweeney said. “And I have a feeling that depending on what direction the House and the Senate goes after this election, who knows what might happen.”
The trigger bill also allows for abortions when “necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.”
Whether or not anti-abortion lawmakers move to take that out of the bill or revise it is murkier.
“Health of the mother is a euphemism, and we do not acknowledge that,” Halverson said. “Life of the mother is different, and we do allow an exception for that.”
The rape and incest provisions of the trigger bill barely made it into law in the first place. Neither exception was included in the bill’s original form.
Rep. Mike Yin, D-Jackson, tried to amend the bill to add those groups, but it failed in the House. The amendment was added in the Senate, passing 15-14 with one lawmaker excused.
“Our position is it is never necessary to kill a baby regardless of whatever circumstance you can throw at us,” Halverson said.
Lawmakers won’t be able to remove those exceptions until next year at the earliest, leaving room for sexual assault and incest victims to get abortions in the meantime.
But how that works on the ground is likely more complex than it appears.
“Does one have to prove rape or incest under the law in order to not violate the trigger bill?” asked Jacquelyn Bridgeman, a law professor and the director of the University of Wyoming’s School of Culture, Gender and Social Justice. “Is it enough for a woman to say that has happened to her? How does one enforce whether she’s telling the truth? And how long will that take? What counts as as substantial risk of death, or irreversible physical impairment?
“I could go on, but yes, I don’t see how those ‘exception’ provisions won’t be a legal hot mess and/or lead to serious invasions of privacy, which are technically still protected by the federal constitution and other laws,” she added.
And that’s if doctors or clinics are even willing to provide abortions once the trigger law is in place, said Casper attorney and self-proclaimed cynic Ryan Semerad.
“Put yourselves in the shoes of a doctor, are you going to roll the dice with your license?” he asked.
It seems certain that Gov. Mark Gordon will pull the trigger. After all, he signed the bill into law and indicated support for it as recently as Friday. But opponents of the law could seek to stop it in the courts.
If a suit is brought, lawyers could vie for a temporary injunction, which would halt the law until the case is completed.
Julie Burkhart, founder of a clinic in Casper that plans to offer abortions when it opens later this year, said that organizers will “fight tooth and nail to protect this fundamental right for the people of Wyoming, including in the courts.”
But the group has not formally committed to a lawsuit yet.
“We are investigating that avenue at this time,” Burkhart said at a Friday press conference. “After we have a full assessment and advice from counsel, then we will determine our next step, but that is definitely one of the avenues that we are researching and could quite possibly pursue.”
Abortion opponents are anticipating that fight as well.
“I don’t think anybody with a sense thought that the damsels of death would give up without a fight,” said Mike Pyatt, leader of a Natrona County conservative group, Liberty’s Place 4 You Wyoming.
If a suit is brought, the plaintiffs would likely argue the trigger bill is unconstitutional under the Wyoming Constitution, which includes a right to individual health care choices.
Article 1, Section 38 of the state constitution was amended by a public vote in 2012 to say “each competent adult shall have the right to make his or her own health care decisions.”
“The U.S. Supreme Court has no jurisdiction to rebuke the state constitution insofar as the state constitution does not violate the U.S. Constitution,” Semerad said.
While there are 12 other states with trigger bans, the explicit mention of health care rights like that in the Wyoming Constitution is relatively rare.
The constitutional amendment came in response to concerns over Obamacare, intended to give Wyomingites the freedom to opt out of government health care and make their own choices.
Abortion opponents say that abortions are not a form of health care, while some lawyers say abortion-rights proponents may have a “strong” case.
Both Semerad and David Adler, a constitutional scholar and professor, believe that by incorporating exemptions into the trigger law, particularly for the health and safety of a mother, the Legislature has grouped abortion in with health care, inadvertently making the bill unconstitutional under Section 38.
“This statute is telling,” Adler said, referring specifically to the exemption for mothers whose health is at risk from a pregnancy. “It reflects that the Legislature fully understood and comprehended that the performance of an abortion entails a health interest.”
“I think they’ve kind of stepped in it now,” Semerad said, also adding that the plaintiffs could sue on the grounds that the the trigger ban is “discriminatory.”
“By restricting that one thing, you’re really discriminating against people that are anatomically female,” he said.
Still, a legal challenge won’t be easy.
Once a law goes into effect, it’s presumed constitutional, so if a party sues over statute, the plaintiff has the burden of proof.
“The burden is always on them,” said Pat Crank, former Wyoming attorney general. “It’s a very heavy burden.”
If the lawsuit fails, it’s unclear what Wyoming’s legal landscape will look like as it relates to abortion exemptions.
“It’s going to be bizarre,” Semerad said.
For nearly 50 years, abortion rights have been federally protected. That means politicians could posture on the issue of abortion, knowing that the matter was settled law (at least at the time.)
Now that states get to decide who — rape and incest victims, for example — gets an abortion and when they get it, the political atmosphere is likely to be altered, people on both sides of the debate said.
“They could hem and haw a little bit, they could posture a little bit, because Roe was there,” Adler said. Politicians won’t have that luxury anymore.
District attorneys, for example, will have to decide whether or not to prosecute over possibly illegal abortions.
“I don’t know the [prosecutorial] appetite of the DAs across the state of Wyoming,” Semerad said. “They’re going to start winning elections on that platform or losing elections on that platform.”
Halverson plans to be one of those who doesn’t allow the candidates to “posture” anymore.
“Candidates for Legislature and governor will be asked, ‘Will you support a bill striking the rape and incest exceptions from [the trigger law]?’” she said.
Most Wyoming lawmakers have public stances on abortion one way or another.
But difficult questions remain, especially considering the rape and incest exemptions.
“When the first victim of sexual assault gets prosecuted for terminating her pregnancy, they’re going to have to look at their constituents in the face and say, ‘Reelect me,’ and that’s going to be an entire different universe,” Semerad said.
This story was published on June 26, 2022.
