A Teton County judge on Monday struck down Wyoming’s two abortion bans, ruling they violate the state constitution.

The decision by Judge Melissa Owens keeps most abortions legal in the state. She concluded a near-total ban on abortion and a prohibition against abortion medications — laws that were passed by state legislators in 2023 after the U.S. Supreme Court overturned Roe v. Wade — conflicted with a 2012 constitutional amendment that protects individuals’ rights to make their own health care decisions.

“The Defendants have not established a compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of their pregnancies, nor have the Defendants established that the Abortion Statutes accomplish their interest,” Owens wrote. “The Court concludes that the Abortion Statutes suspend a woman’s right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.”

Owens put the bans on hold last year while considering the arguments for and against their constitutionality. The bans were challenged by a group of women, health care providers and an aid group who asserted the laws violated a dozen provisions of the Wyoming Constitution.

In Monday’s ruling, Owens honed in on the 2012 provision pertaining to health care autonomy. While the state of Wyoming, which defended the laws, asserted an abortion does not constitute a woman’s “health care decision” since it affects both the woman and the fetus. The judge disagreed.

“The Health Care Amendment does not prohibit a person from making their own health care decision if their decision impacts any other person,” she wrote. “As the Plaintiffs argued, only a pregnant woman can make a decision to have an abortion. No other person can make that decision for a competent pregnant woman. To adopt Defendants’ argument the Court would have to rewrite the Health Care Amendment.”

The case is expected to be appealed to the Wyoming Supreme Court. In the meantime, two medical providers in Wyoming — one in Jackson and one in Casper — continue to offer abortion services. An arsonist set fire to the Casper clinic in 2022, delaying its opening.

Lawmakers react

Owens’ decision spurred swift reaction from state lawmakers.

Rep. Karlee Provenza (D-Laramie) told WyoFile she was “grateful to the Wyoming Constitution and the people of Wyoming who voted to protect our right to reproductive health care.

“And I’m grateful that, for at least now, we don’t have to worry about politicians forcing women into pregnancies that they shouldn’t have and that they don’t want to have for health care or personal reasons, it doesn’t matter. So this is a win for health care access in this state.”

Rep. John Bear (R-Gillette), chairman emeritus of the Wyoming Freedom Caucus, was not surprised by the ruling but was disappointed nonetheless.

“I think it’s a huge failure of the judicial system to take two years to come to this conclusion, almost three years,” Bear told WyoFile. “And I’m very disappointed that the will of the people was not upheld. So I look forward to an appeal, and hope that it can move quickly — much more quickly than it did via Judge Owens’ decision.”

The Freedom Caucus echoed Bear’s comments on Facebook.

“We are sickened by the decision out of Teton County today. Contrary to [Gov. Mark] Gordon’s radical judicial appointees and the talking points of Kamala Harris, killing a defenseless human being is NOT healthcare, and judges don’t get to legislate from the bench,” a Monday night post read.

Rep. Rachel Rodriguez-Williams (R-Cody), sitting chair for the Freedom Caucus, did not respond to WyoFile’s request for comment.

A spokesman for Gordon also did not respond to a request for comment on Monday evening.

Constitutional amendment

In her decision, Owens cited a state constitutional amendment that more than 75% of Wyomingites voted for in 2012.

As a rebuke of the Affordable Care Act — a.k.a. Obamacare — Republican state lawmakers pushed for the amendment in order, they said, to protect health care choices for people in Wyoming.

The language they gave to voters to add to the Wyoming Constitution states, among other things, “Each competent adult shall have the right to make his or her own health care decisions.”

It also states the Legislature “may determine reasonable and necessary restrictions” on the health care rights “to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”

The plaintiffs maintained the constitutional amendment barred lawmakers from banning abortion — regardless of whether that was the authors’ intention.

State legislation, court action

Months before the U.S. Supreme Court overturned the constitutional right to an abortion in June 2022, the Wyoming Legislature passed a “trigger bill” that would enact a ban in the Equality State should Roe fall. When the trigger bill went into effect that summer, it faced an immediate challenge from many of the same plaintiffs. Owens halted enforcement while she weighed the case.

While that lawsuit worked its way forward, state lawmakers drafted new abortion bans.

Those included the near-total abortion ban, House Bill 152 – Life is a Human Right Act, and a ban on using medications to induce abortion called Senate File 109 – Prohibiting chemical abortions. Both of them passed the Legislature, though Gordon only signed the latter, simply letting the former go into effect without his signature.

“While [the near-total ban] may offer some improvement to the bill I signed just last year, I believe now more than ever that if the Legislature seeks final resolution on this important issue, it ultimately may have to come through a Constitutional amendment,” he stated in a letter to the secretary of state.

The near-total ban went into effect as soon as Gordon let it pass into law, but earlier that day, abortion rights advocates levied a new, preemptive legal challenge against it.

That suit came from the same group who’d challenged the trigger ban. The defendants were the same, too, including the state, governor, attorney general, Teton County sheriff and Jackson’s chief of police.

Just four days later, Owens issued a new restraining order. The lawsuit soon grew to challenge the medication ban, too. That ban was set to go into effect in July 2023, but on June 22 of that year, Owens halted its enforcement.

Anti-abortion lawmakers and Right to Life Wyoming both tried to intervene in the suit, but failed.

The push to restrict abortion in Wyoming comes amid a rightward turn in the Wyoming Legislature. Lawmakers sought this past session to enact new restrictions on abortion clinics and require doctors to perform mandatory ultrasounds, but Gordon vetoed the measure, arguing it would further delay legal resolution on the question of abortion’s legality in Wyoming.

Lawmakers are expected to pursue additional restrictions this session, despite the anticipated appeal of Owens’ ruling to the Wyoming Supreme Court. POLITICO reported recently that Sen. Tim Salazar, the Riverton Republican who sponsored the ban on abortion medications, planned to introduce legislation that would require doctors who prescribe the pills to be responsible for the disposal of fetal tissue. That would mean, according to POLITICO, that patients who take the medication at home would have to return the tissue in medical waste bags.

A survey released earlier this month by the University of Wyoming found that public views on abortion have largely held steady here. It showed 10.5% of Wyomingites want all abortions banned. Another 31% supported restrictions on abortion while allowing it in the case of rape, incest or when a woman’s life was in danger. A further 19.7% preferred those exceptions along with additional ones, “but only after the need for the abortion has been clearly established.” Finally, 38.8% said abortion should remain a matter of personal choice.