Wyoming Asks Supreme Court for a Do-over after Abortion Bans Get Tossed

The original story by Hanna Merzbach for Wyoming Public Radio. 

Wyoming isn’t done fighting its abortion bans just yet.

The state has asked the Wyoming Supreme Court to rehear its recent decision striking down two near-total abortion laws, arguing the justices made legal mistakes – and overlooked a key constitutional argument – when they ruled earlier this month.

On Jan. 6, the high court invalidated both the Life Is a Human Right Act and the state’s ban on medication abortions. Together, the laws would have prohibited most abortions, with limited exceptions. A majority of the court concluded the bans violate Wyoming residents’ constitutional right to make their own health care decisions.

The Attorney General’s Office strongly disagrees.

In a petition filed Jan. 20, the state says the court got it wrong – repeatedly. The filing opens with a quote from former US Supreme Court Justice Oliver Wendell Holmes warning that emotionally charged cases can lead to bad law.

Special Assistant Attorney General Jay Jerde, who wrote the petition, argued the justices made “numerous mistakes or errors of law” and failed to fully address one of the state’s core claims.

At the heart of the state’s argument is its claim that the Wyoming Constitution protects life beginning at conception.

Jerde says the court failed to grapple with the state’s position that “an unborn baby has a fundamental right to life” under Article 1, Section 2 of the Wyoming Constitution. That section states that “all members of the human race are equal” in their inherent right to life, liberty and the pursuit of happiness.

When life begins is hotly debated, but Jerde cited decades-old court decisions from other states that concluded life starts at conception. He argued that Wyoming’s abortion bans are “reasonable and necessary” to protect the constitutional rights of both pregnant women and unborn children.

According to the petition, the court must either recognize that constitutional right to life for the unborn – or clearly explain why it does not.

The Supreme Court’s decision leaned heavily on Article 1, Section 38 of the Wyoming Constitution, which voters approved in 2012 to protect residents’ rights to make their own health care decisions.

Jerde argued the court misread that amendment, especially subsection 38(d), which says the state must act to protect those rights from “undue governmental infringement.”

He said the court wrongly treated that language as placing the burden on the state to justify any restriction on health care decisions. Instead, Jerde argued, the justices should have focused on subsection 38(c), which allows the Legislature to impose “reasonable and necessary restrictions” to protect public health and welfare.

The petition also accuses the court of ditching precedent when applying legal tests and weighing evidence – something Jerde suggested may be tied to recent changes in the court’s makeup.

“When this Court overrules precedent based on nothing more than a change in membership,” he wrote, “it causes lasting injury” to the legal system.

Since the ruling came down, some state officials and lawmakers have accused the court of being overly liberal. Others have floated reviving proposals that would require Wyoming Senate approval of Supreme Court appointments.

Meanwhile, abortion rights supporters have praised the decision.

“This is an amazing ruling,” said Giovannina Anthony, a Jackson OB-GYN and one of the plaintiffs in the case, when the decision was released.

She said the ruling exposed “the weakness of the state’s case” against the constitutional right to make personal health care decisions.

The abortion access advocates who brought the lawsuit will now have a chance to respond to the state’s rehearing request. After that, the Supreme Court will decide whether it wants to take another look.

According to Wyoming Judicial Branch Communications Director Jacob Just, the justices don’t follow strict criteria when deciding whether to rehear a case. If they agree to do so, they may – or may not – schedule new oral arguments.

At the same time, the broader fight is far from over. Lawmakers are already drafting language for a potential constitutional amendment that could go before voters as soon as this fall, aiming to ban most abortions outright.

For now, the question is whether the state’s highest court is willing to revisit one of the most consequential rulings it has issued in years.