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Legislature Takes Aim at Foundation of Wyo’s Abortion Law

screengrab-Wyo Leg 2021-03-22

Wyoming Legislature During March 22, 2021 Session

By Nick ReynoldsWyoFile

Reproductive rights advocates worry two bills among a slate of abortion-related measures working their way through the Legislature could erode the foundation of state law regulating the practice.

A handful of bills have been introduced this year relating to abortion. The two bills in-question — Senate File 96 – Homicide amendments, and House Bill 134 – Human heartbeat protection act — both advanced out of committee in recent days despite concerns from advocates as well as the medical community. They will both be heard on the floor of the Wyoming House of Representatives.

Sponsors say both bills are intended to give a “voice to the voiceless” — in this case, human fetuses — and provide them with the same rights as fully formed humans. If passed, however, opponents say the bills could fundamentally alter existing legal definitions regulating abortions in the already-restrictive state, potentially rendering doctors unable to care for their patients.

HB-134, for example, would alter the definition of when abortions cannot be performed from the current standard of fetus’ “age of viability” (typically around 24 weeks) to whenever a heartbeat can be detected, which anti-abortion advocates say can be as early as five to six weeks.

“If there is a heartbeat, there is a heart, and there is a life,” Rep. Tim Hallinan, (R-Gillette), said in support of the bill.

Many experts — including accredited OBGYNs who testified before lawmakers — say that six weeks is not a credible definition of when a heartbeat can be detected and the heart is far from fully formed at that stage.

Critics have also raised concerns about SF-96, which would add additional criminal penalties to a murder charge if the victim was found to be pregnant.

While the bill’s co-sponsors — Sen. Lynn Hutchings (R-Cheyenne) and Rep. Ember Oakley (R-Riverton) — said the legislation was drafted in response to a high level of domestic violence incidents involving pregnant women, abortion advocates regard some of the language in the bill as a “slippery slope” toward defining fetuses as human beings in statute.

“This bill is a simple, straightforward bill,” Hutchings said. “A person is guilty in the first degree if they murder an unborn child while attempting to kill the pregnant woman.”

Linda Burt, a lobbyist for NARAL Pro-Choice Wyoming, testifies against Senate File 96 at a meeting of the House Judiciary Committee on Thursday, March 18. (Screengrab/Wyoming Legislature)

Though SF-96 specifically includes language to prevent definitions in the bill from “bleeding over” into other parts of Wyoming law, Oakley said, abortion advocates believe that defining “unborn child” as an in-utero human “at any state of development” could create an avenue for lawmakers to redefine references to the unborn in other areas of Wyoming law.

“I don’t think this is going to protect women at all,” Linda Burt, a lobbyist for NARAL Pro-Choice Wyoming, said of the bill. “I think the purpose is to bring about personhood in our statutes, that the fetus is a person, and to give it rights as a person. It’s not about crimes against pregnant women.”

A national wave

Similar laws passed by state legislatures in recent years have failed to withstand legal challenges. In 2019, a federal judge struck down a recently passed heartbeat law in Ohio on the ground it presented an “undue burden” to women seeking an abortion.

In 2019, nine different states passed some form of heartbeat legislation in what the pro-choice Guttmacher Institute described as an “unprecedented wave of bans on all, most or some abortions.” That same year, more than 250 bills restricting abortion were introduced in state legislatures around the country, with more than one-fifth of them eventually being signed into law.

Though that trend slowed during the COVID-19 pandemic in 2020, several other states — including Iowa, Mississippi and Tennessee — all adopted some form of restriction on abortion during their legislative sessions. According to an analysis by 19th News, just this year, 384 anti-abortion laws have been introduced in 43 states.

Historically, the Wyoming Legislature has been reluctant to pass major legislation restricting abortion access. According to the 19th News analysis, just 21 restrictions on abortion and two abortion bans were introduced as bills in the state legislature over the last decade. And in 30 years, Wyoming has only passed two abortion-related bills, including last year’s Born-Alive Abortion bill, which was vetoed by Gov. Mark Gordon in spring of 2020.

But the body’s attitude on such measures is shifting, Burt said. Wyoming has seen a record number of abortion bills hit the Legislature this year, with many advancing.

“We’re seeing a plethora of [bills like this] because we have a Legislature that is veering more to the right,” Burt said. “One of the reasons I think these bills historically haven’t gone anywhere is because Wyomingites believe in the right to privacy. These are private issues between women and their doctors or women and their families. These are not legislative issues, and I think Wyoming has long been independent and believed in a woman’s right to privacy. But you can see how that has been eroded in Wyoming on a number of levels.”

Abortion is rare in Wyoming. Just 31 abortions were performed in Wyoming in 2019, according to the Wyoming Department of Health. Most were under six weeks. Out of the 60 OBGYNs operating in Wyoming, just one performs abortion procedures, according to testimony on several bills this week. That provider is based out of Jackson, which is difficult to reach for many state residents.

This year has represented a marked departure from Wyoming’s traditional hands-off approach to healthcare, Burt said. Five out of six abortion-related bills introduced this session have made it out of committee, with one of them — a ban on chemical abortions — passing the Senate this week by an overwhelming margin after advancing by a 4-1 vote in the Senate Labor, Health and Social Services Committee last week.

That vote came despite criticisms that the bill could be unconstitutional and threaten healthcare providers with significant jail time for a common procedure used on patients facing early complications from their pregnancies, long before a fetus is viable.

“This is a case where we would outlaw a procedure that does happen frequently at an OBGYN office,” Sen. Fred Baldwin (R-Kemmerer), the lone ‘no’ vote on the bill, said. “And I think this bill will handicap them and tie their hands behind their back significantly to the point of the threat of a 14 years in jail or a $10,000 fine. It’s pretty significant. And this would significantly impair the health of that person that truly needs this drug, for a procedure that truly needs this to be done.”

Downplaying expertise

Rep. John Romero-Martinez (R-Cheyenne) (Photo: Wyoming Legislature)

Lawmakers have downplayed or even ignored the concerns of providers and other advocates regarding abortion measures through the session.

Another bill sponsored by freshman Rep. John Romero-Martinez (R-Cheyenne) would prevent “discrimination-motivated abortions,” essentially outlawing abortions based on a child’s potential genetic disposition, including possible disabilities, the child’s race, gender or “ancestry.”

Giovannina Anthony, an obstetrician-gynecologist in Jackson, told lawmakers she had “never in her career” heard of any of the definitions proposed in the bill.

“How do we counsel these patients with all of this loose terminology?” she asked.

Another OBGYN, Rebecca Franklund, said the language of the bill offers a prescriptive definition of “medical judgement” that doesn’t reflect the reality of what these doctors’ jobs actually entail — including what it takes to save a life.

Rebecca Franklund, a Sheridan OBGYN, testifies on a piece of abortion-related legislation to chairwoman Sue Wilson at a meeting of the House Committee on Labor, Health and Social Services on Wednesday, March 16, 2021. (Screengrab/Wyoming Legislature)

“This is really scary legislation,” she said. “These are really scary words. And just really scary consequences.”

When Rep. Cathy Connolly (D-Laramie) asked Franklund whether the bill could prevent women from getting the care they need, she was unequivocal.

“Absolutely,” she said.

Connolly introduced amendments to that abortion bill and others to support efforts to avoid some of the unintended consequences. While each bill heard by House Labor, Health and Social Services Wednesday passed by 7-2 margins, none of Connolly’s amendments did.



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