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Abortion bans await governor’s action

The governor, who must decide by March 18 whether to sign two measures outlawing abortion, is weighing questions of constitutionality and consequence.

(Photo by Stephanie Lam / Cap City News)

CHEYENNE, Wyo. — Two abortion bills sit on Gov. Mark Gordon’s desk: a near-complete ban and another aimed at banning medication-induced abortions. 

As of Tuesday, Gordon said he’s still mulling over both.

“Obviously, one of the most important [considerations] is constitutionality,” he said in a press conference, adding he wants, “to understand how they interplay with one another, how they interplay with existing law. And then also whether there are any unforeseen consequences that could be problematic.”

“I’m still on pins and needles,” Marti Halverson, a former lawmaker and the current president of Right to Life Wyoming, said about the wait on the governor. “It’s crucial that [the two bills] become law in Wyoming.”

Halverson said she wished lawmakers hadn’t amended the bills, but is still supportive of the measures. Early in the session, she advocated against abortion ban exemptions for pregnancies that result from rape or incest. “Those children are no less valuable to Wyoming than those conceived otherwise,” Halverson said in January. Both bills now have those exemptions.

Alternately, the ACLU of Wyoming is urging Gordon to veto the bills, stating that abortion decisions should be left up to individuals, their doctors and their faith. 

“Medical care should be guided by a patient’s health and well-being, not politics,” it stated, adding that bans would disproportionately affect those already struggling economically, those facing intimate partner violence, as well as Indigenous, Black and Latino communities.

There is already one abortion ban in place — a “trigger bill” that went into effect after the U.S. Supreme Court overturned Roe v. Wade — but abortion remains legal in Wyoming for now. An ongoing lawsuit challenging the ban’s constitutionality and an injunction have prevented it from taking effect.  

The trial date for that case in the 9th District Court in Teton County is scheduled for December, and partially focuses on a line in the state constitution.

“Each competent adult shall have the right to make his or her own health care decisions,” the Wyoming Constitution states. 

Some believe that language could also undermine the two bills on Gordon’s desk. Many Christian faiths and other groups see abortion as murder, though, and don’t see the threat of litigation as a reason to back down.

The House bill 

House Bill 152 – Life is a Human Right Act is a near-total abortion ban, though it was amended significantly throughout the legislative process. 

In its current form, it would ban most abortions, penalizing those who perform them with a felony and possible civil suits. The felony alone would cost abortion providers up to $20,000 and 5 years in prison. For physicians, it would also mean a revoked medical license.

As introduced, the bill didn’t include exemptions for rape or incest, but those were added later with the stipulation that such crimes would have to be reported to police by a woman or guardian — something the United Nations Committee Against Torture says can be an “insurmountable obstacle.”

There are also exemptions to preserve the life of the woman or in cases of a lethal fetal anomaly or molar pregnancy. Lawmakers defined a lethal fetal anomaly as a pregnancy with “a substantial likelihood of death of the child within hours of the child’s birth.” They described a molar pregnancy as the “development of a tumor or cysts” after fertilization that can cause spontaneous abortions or kill the fetus. 

Those last two exemptions were added on the Senate floor during the final days of the session, and some lawmakers were concerned the limited time made it hard to grasp all of the bill’s possible unintended consequences.

There are often gray areas in medicine, but legislation has to be black and white, Sen. Bill Landen (R-Casper) said. He feared what that would mean for Wyoming women, and he wasn’t alone. 

“This is a poorly written bill,” Sen. Cale Case (R-Lander) said during floor debate. “It has had problems from the beginning to end.”

Case also wasn’t convinced the bill accomplishes more than the law already on the books, he said, adding “to be honest, I suspect we would pass any bill that attempted to prevent abortion in any way.”

While they ultimately voted in favor of HB 152, senators Ed Cooper (R-Ten Sleep) and Tara Nethercott (R-Cheyenne) both had reservations about its language and potential lack of considerations.

“And so we will pass poorly written legislation that will impact those babies that we care so deeply about. It will, because it creates uncertainty for the families because it is poorly written,” Nethercott said. “You can be for life, and the bill can still be poorly written.”

At one point the legislation was crafted as a trigger bill, only going into effect if the current ban is deemed unconstitutional in court. However, lawmakers stripped that provision out, and it could go into effect soon, depending on what Gordon decides.

Another deleted section had guaranteed the right of the bill’s sponsors or cosponsors to intervene in lawsuits against HB 152 — something a few lawmakers have tried to do with the ban tied up in court. 

While they no longer have an unequivocal right to intervention, lawmakers can still ask to intervene like any other citizen. 

Another deleted section had guaranteed the right of the bill’s sponsors or cosponsors to intervene in lawsuits against HB 152 — something a few lawmakers have tried to do with the ban tied up in court. 

While they no longer have an unequivocal right to intervention, lawmakers can still ask to intervene like any other citizen.

With all the changes to the legislation and concerns, a majority of lawmakers in both chambers felt it was still worth passing to signal their continued anti-abortion stance and to legally define “pregnant,” “abortion” and “unborn baby.” 

“I’m on and for this bill, not because it’s perfect — because I can assure you, I will be the first one to say it is not — but this is a journey to get to a place and this is one of the vehicles to get there,” Sen. John Kolb (R-Rock Springs) said on the Senate floor.

Language towards the top of the bill appears to be a counter to constitutional concerns. It states, “abortion as defined in this act is not health care. Instead of being health care, abortion is the intentional termination of the life of an unborn baby.”

Rep. Clark Stith (R-Rock Springs) and others have expressed concerns that the language steps on the judiciary’s toes by interpreting the state constitution — typically the purview of the courts. 

Sen. Cheri Steinmetz (R-Lingle), however, told her colleagues that attorneys disagree on whether it’s “poorly written” or how the bill might fare in the courtroom.

The Senate file 

The second bill on the governor’s desk is Senate File 109 – Prohibiting chemical abortions.

Under that measure, anyone who prescribes, dispenses, distributes, sells or uses a drug to cause an abortion can be charged with a misdemeanor with punishments of up to 6 months in prison and $9,000. 

The bill, which the Legislature has seen versions of before, has also gone through major changes over the last months. Namely, lawmakers cut out the names of specific medications they would ban.

Part of the reasoning was that medication names can change. Another part was acknowledgement that naming certain medications could create a chilling effect, making them harder to get for non-abortion procedures. 

Misoprostol, in particular, has a wide range of uses, including to help perform an abortion, prevent stomach ulcers and treat postpartum hemorrhage

Even with medication names taken out of the bill, there were still concerns about its language.

As written, exemptions currently include reported rape, incest, miscarriage and “imminent peril.” However, it specifically states that imminent peril doesn’t include “any psychological or emotional conditions” or the threat of self-harm. 

Mental illnesses are real concerns, Rep. Steve Harshman (R-Casper) said in the House Revenue Committee, which he chairs.

“It’s real when somebody is in psychological peril,” Harshman said.  “A lot of it is physical causes, right? Imbalances.”  

Bill proponents argued adding mental distress or illness as an exception could provide a loophole for doctors to prescribe abortions. 

“What we want to avoid in the bill is simply a claim that the abortion was needed for the psychological well-being of the woman,” Rep. Art Washut (R-Casper) said. 

Harshman — and 55 others on the House floor — ultimately voted in favor of the bill with mental health exemptions not included. 

The latest Centers for Disease Control and Prevention data shows that Wyoming has the nation’s highest suicide rate. Recent research published in the journal JAMA Psychiatry also found restricted abortion access was linked to higher suicide risks for women of reproductive age.

One reason for the bill was to protect the “God-given right” to life, Rep. Jared Olsen (R-Cheyenne) said. Another reason, as stated by Olsen and Rep. Sarah Penn (R-Lander), was that medication abortions are dangerous. 

Olsen stated the danger of drug-induced abortion is “four times higher than a surgical abortion.” Research on Medicaid patient outcomes, however, indicates those undergoing medication abortions are about 1.5 times more likely to visit the ER. Others caution that most of those ER patients don’t have a serious complication. 

Neither surgical nor medication abortions are as dangerous as carrying a pregnancy to term and giving birth in the United States, according to research published in the journal Obstetrics and Gynecology in 2012. 

There are also concerns that not being able to legally obtain abortion medications will lead women to take abortion-inducing drugs or get operations without medical supervision. 

Bigger picture

Gordon could veto one or both bills, but can also let the bills become law without his signature. He has until March 18 to decide. 

Early this year, nearly half of states had either passed abortion bans or were expected to do so, according to the Guttmacher Institute. Thirteen states had near total bans in place last month while several others have bans caught up in court, including Wyoming. 

There are still concerns that these abortion bans could infringe upon certain religious beliefs in Wyoming. On the Senate floor, Sen. Charles Scott (R-Casper) said his own church supports women’s right to choose early on in a pregnancy.

“This bill says that acting on the beliefs of our church are criminal,” Scott said. “I submit to you that this bill crosses the line and imposes the will of one set of religions on those of us who are of a different persuasion. And that’s not appropriate in a free society.”

Sen. Dan Dockstader (R-Afton) argued that the state is changing to be even more supportive of bans.

“[I’ve] worked in this body when something like this would never be considered, and now we are. And you’re seeing people being put into office who support such concepts,” he said on the Senate floor.

The founder and president of Wellspring Health Access — the planned abortion clinic in Casper — is also monitoring the governor’s decisions on the abortion bills.

“We are assessing those and deciding internally how we’re going to address them,” Julie Burkhart said. “At this time, I can’t say exactly what we are going to be doing, but these bills are definitely on our radar.”

Wellspring Health Access is a plaintiff in the lawsuit against the current abortion ban, and Burkhart said that case is already weighing a major aspect of the two new bills: an individual’s right to make health care decisions. House Bill 152’s claim that abortion isn’t health care is incorrect, she said.

“Abortion care is absolutely health care,” she said. “Abortion care is part of the spectrum of reproductive health care.”

An arsonist lit fire to Burkhart’s clinic in May before it opened. The investigation into that incident is ongoing and the Casper Police Department recently said the reward for providing information that leads to an arrest has increased from $5,000 to $15,000 thanks to a concerned community member.

“It’s important to recognize that, regardless of the target, or their reasons for starting the fire, the arsonist(s) put members of our community in direct peril,” Lieutenant Jeff Bullard said in a press release.

This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.