An unintended outcome: Amendment to stop Obamacare used in case for abortion-rights

CASPER —  Here is Bob Brechtel, standing on the sidewalk protesting outside an abortion clinic that plans to open in Casper later this year. He’s been here every Thursday afternoon, usually holding signs that say “Remember the Unborn” or “Pray to End Abortion,” since the clinic was announced in April. 
Brechtel is adamantly, visibly, steadfastly against abortion. He’s been vocal about that fact for decades. 
He coordinates these weekly protests, where he says people from 37 different churches regularly participate. When Roe v. Wade was overturned in June, he said he was thankful and praised God for the decision. 
He co-sponsored a resolution in 2011, when he was a state lawmaker representing Natrona County, that sent a constitutional amendment aimed at curbing concerns over the Affordable Care Act (or Obamacare) to a public vote. The amendment allows each “competent adult” to make their own health care decisions. 
It was meant to protect Wyomingites from having to enroll in Obamacare against their will. In 2012, it was added to the state constitution after passing the ballot. 
Now, abortion providers contesting Wyoming’s trigger ban are turning to the amendment as their strongest case for keeping abortion legal in the state. 
“I’ll be very grieved if they actually use that as an instrument of death,” Brechtel said this week. “That wasn’t our intent at all.” 
When the amendment appeared on the ballot in the 2012 general election, it passed easily with 72% of the public vote. But the road to the ballot wasn’t as easy. 
At the time, many lawmakers and lobbyists said they were concerned the resolution that authorized the amendment vote was too vague, its language too broad. 
The Equality State Policy Center, a non-partisan but left-of-center lobby, urged lawmakers to vote against the amendment. It wasn’t specific enough, it said, and could give rise to unintended consequences. 
“I’ll bet that even the original supporters of this amendment can’t tell you exactly what it will do, given the vague language and all the changes made to it during the Legislature’s deliberations in 2011,” ESPC Director Dan Neal said, according to news coverage at the time. 
For the most part, more conservative lawmakers voted to pass the amendment. 
A much smaller group of left-leaning legislators — including now-Minority Whip Rep. Cathy Connolly, D-Laramie, and Wyoming Democratic Party leader Joe Barbuto — generally voted against it. 
“I liked the liberty part of it — it’s a freedom thing,” said Sen. Cale Case, R-Lander, who also co-sponsored the 2011 amendment bill. “I just find the irony of this so beautiful, in a way.” 
Connolly said she cast her “no” vote on the amendment because of its origins.

“To put something like that, that was wholly and highly political, in the constitution — I found it offensive,” Connolly said.
The amendment was never used as intended. Wyomingites were never required to have health insurance, government-issued or otherwise, and that mandate was erased federally during the Trump administration. 
Connolly said she doesn’t think the amendment, the 38th to the state constitution, has been used much at all. 
“It was somewhat unnecessary in that fight, but it turned out to be very necessary where we need it,” Case said. “I kind of love that I had a small piece in making a tool that’s perfectly appropriate… I just hope it works.” 
Despite their opposing votes on the amendment in 2011, both Case and Connolly are fine with how it’s being used now — as the center of a legal argument for overturning Wyoming’s trigger ban. 
Lawyers contesting the ban cite the amendment as an explicit protection of health care rights for Wyomingites and argue that abortion is a form of health care. 
Brechtel and other opponents to abortion rights say abortion has nothing to do with health care. 
“Abortion is always the taking of a human life, and there is no connection between that and health care,” Brechtel said. “There’s quite an effort, it seems, to try to confuse the issues, to confuse the public.” 
It will be up to the Teton County court, which is hearing arguments for a preliminary injunction next week, to decide whether the amendment applies in this case. 
“It’s come to bite them in the ass,” Connolly said. 
The language of the amendment was rewritten several times as the bill moved through the legislature in 2011, becoming more vague and losing direct references to health care plans that would have tied it more closely to its target, Obamacare. 
“Those of us who supported the amendment were not all necessarily lawyers,” Brechtel said. “We trusted the attorneys that wrote the legislation for us. We had one intent, and I can tell you our intent was not to legalize abortion.” 
The amendment that eventually ended up in the constitution says that “any person may pay, and a health care provider may accept, direct payment for health care.” 
But the sentence that follows may become a sticking point in the ongoing lawsuit. 
“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,” it reads. 
Connolly said the question for the court becomes whether banning abortion is a “reasonable and necessary” limit on the freedoms the amendment appears to grant. 
She remembers abortion being mentioned during “closed-door” discussions about the amendment, but it wasn’t part of the public conversation at the time. 
“That ‘reasonable,’ that’s going to be the biggest ‘reasonable’ in the whole world,” Case said. 
During a late July hearing in the abortion ban lawsuit, an attorney representing the state argued that Judge Melissa Owens should consider the context of the amendment when interpreting it in this case. 
“The way the court does its interpretation, it’s looking at the black letter of the law,” said Connolly, who holds a law degree.
It’s not typical in Wyoming for courts to look at legislative intent when interpreting laws, she said. 
Case said that while the trigger ban was moving through the legislature this year, he voiced concerns that it would violate the state constitution. Now, with the ban on the books but temporarily blocked as part of the ongoing lawsuit, that will be up to the courts to decide.
 
This story was published on August 4, 2022.