Wyoming's Abortion Ban Dream Once Again Dashed By Its Own Anti-Obamacare Law
A surprisingly less-depressing-than-usual reproductive rights roundup!
Back in 2012, Wyoming voters overwhelmingly approved a constitutional amendment meant to “protect patient choice,” stating that “each competent adult shall have the right to make his or her own health care decisions.” Why? Because back then they were all het up about imaginary “death panels” that, you may have noticed, never actually emerged.
“The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care,” proclaimed Sarah Palin, apropos of literally no threat or plan to ever do that.
Since then, the amendment languished in obscurity, a relic from a hysteria the Right has since erased from its collective memory (as they tend to do whenever their conspiracy theories turn out to be bullshit) — until the state tried to ban abortion.
The Wyoming supreme court ruled unanimously on Tuesday, in the case of State v. Johnson, that the state cannot actually ban the abortion pill, because this amendment — fully and enthusiastically agreed upon by Wyoming voters over a decade ago — means that “competent adults” can make their own health care decisions, and that includes whether or not to have an abortion. Whoops.
In case you are feeling a sense of deja vu, Teton County District Judge Melissa Owens came to the same decision three times in a row back in 2024. The state thought they’d have better luck with their supreme court, but things clearly did not work out that way.
The state attempted to argue that the amendment was only supposed to apply to the imaginary Obamacare death panels, but the court determined that it did not have the right to add words to the Wyoming constitution. I guess they should have thought about that before passing a performative law with the sole purpose of making it seem as though there really was some evil provision in the ACA that would set up panels to determine whether a person should live or die. That’s the problem with owning the libs — sometimes you only end up owning yourself. Or, you know, not being able to force anyone to give birth against their will.
Granted, the judges noted that this is not a forever ruling, and that the state could still find a way around the amendment — either by passing a new version that specifies it was only ever meant for the purpose of undermining Obamacare or by creating another law that passes “strict scrutiny” and doesn’t violate the amendment.
The opinion read:
Looking at prior cases and the language of Article 1, Section 38, the majority decided that a test called “strict scrutiny” applies in this case. Under that test, the State must prove the 2023 abortion laws were written as narrowly as possible to achieve the State’s interest in protecting prenatal life — that the abortion laws were the least burdensome way the State could achieve that goal without unjustifiably restricting a woman’s constitutional right to decide whether to terminate or continue a pregnancy. Only if the State met its burden of proof at the trial court level could the Supreme Court conclude the laws did not violate Article 1, Section 38. The majority determined the State did not present enough evidence to show the restrictions (and exceptions) on performing abortions and the ban on medications (and exceptions) are no more restrictive than necessary to serve the State’s interest in protecting prenatal life. Therefore, the majority held that those laws are unconstitutional.
For now, however, Wyoming’s uterus-havers can rest easy knowing that, as long as they can make it to the state’s one and only abortion clinic (or are early enough along to get abortion medication through telehealth), they won’t be forced to keep an unwanted pregnancy against their will. Nice!
It’s Almost As If Kentucky Realizes It’s A Bad Look To Arrest Women For Having Abortions
On Tuesday, a grand jury indicted 35-year-old Melinda Spencer for the crime of “fetal homicide” — specifically for taking abortion pills she ordered from the internet, and then going to a clinic afterwards for medical help. The fetus was 20 weeks along at that point and the pill is only recommended up to 11 weeks, but because Kentucky bars all forms of abortion, she didn’t really have another option when it came to ending her pregnancy.
But! Later that day, Assistant Commonwealth Attorney Amanda Hampton filed a motion to dismiss the “fetal homicide” charge.
“The Commonwealth has no grounds to pursue prosecution of (fetal homicide) based on the Legislature’s clear decision to exempt and protect the defendant mother’s actions in this matter,” the motion states. She’s not wrong. The state’s idiotic fetal homicide law only applies to those who perform abortions or otherwise cause the death of a fetus and not to “acts of a pregnant woman that caused the death of her unborn child.”
“I sought this job with the intention of being a pro-life prosecutor but must do so within the boundaries allowed by the Kentucky State law I'm sworn to defend,” Commonwealth Attorney Miranda King said in a statement released after the court hearing. “I'm thankful for the investigative work of the Kentucky State Police on this case. I am also grateful to the dedicated citizens who served on the grand jury and thoroughly reviewed this case. We will prosecute the remaining lawful charges fully and fairly.”
The remaining charges are concealing the birth of an infant, abuse of a corpse and tampering with physical evidence.
This is a very, very good example of why we need to care about small races in Republican majority areas instead of just always letting them run unopposed. Wolfe County leans strongly Republican, but Hampton is a Democrat. Because she ran, because she won, Melinda Spencer is probably not going to prison for exercising her right to abortion. These things matter!
House Democratic Caucus Chair Lindsey Burke has also filed a bill (House Bill 23) in response to Spencer’s arrest that would decriminalize abortion in the state, both for those who have them and those who “facilitate” them.
“When people are afraid of prosecution, they don’t stop needing health care — they just stop asking questions,” Burke told reporters. “That fear can push women into riskier and less informed decisions, delay care during medical emergencies, or prevent them from seeking help at all. That is how women’s health outcomes worsen, not improve.”
Once again, for the people who are definitely not reading this site — abortion bans don’t stop abortions, they just make them less safe.
Surprisingly Non-Horrifying Thing Happens In Alabama!
In 2020, two years before Roe vs. Wade was even overturned, Brooke Shoemaker, a 37-year-old Alabama woman who had suffered a miscarriage, was found guilty of “chemical endangerment causing death.”
Shoemaker was arrested two months after the stillbirth after police concluded that the fetus had probably died because she was taking methamphetamine. Sure, there was no actual proof that this was the case and even the medical examiner was like “IDK, maybe?”
“Certainly, people have stillborn infants,” State Medical Examiner Dr. Stephen Boudreau testified at trial, as per The Marshall Project. “We have spontaneous abortions. Did a certain drug cause that? It can. I mean, that’s as far as I can get with it. It certainly can. But it’s — that’s why my report says undetermined.”
But the jury found her guilty anyway and sentenced her to 18 years in prison. Eighteen years!
Now, five years into her sentence, a judge has overturned her conviction and vacated her sentence on the grounds that it’s entirely possible that an infection, and not meth, caused the stillbirth. She now faces a new trial (and must remain in prison while the state of Alabama fights this), although given the way the previous one went, it’s hard to have high hopes. Good for that judge, though!
It’s easy to understand why people think “fetal endangerment” laws are a good idea — obviously we all know it’s bad for expectant mothers to do drugs or drink or what have you. But criminalizing it does nothing so much as discourage people from getting help. Why seek it out if you know you could end up in prison for decades? Or why seek out any medical care at all, for fear doctors might find out about your condition and report you to the police? Addiction is a disease and should be treated as such. If someone had a health condition that made them likely to lose a pregnancy, no one — okay, very few people — would object to them trying to get help, and it ought to be the same deal with addiction. Because hey! If you’re really trying to save them fetuses, that’s going to be a lot more effective than chasing addicts into the shadows.
PREVIOUSLY ON WONKETTE!
"The remaining charges are concealing the birth of an infant..."
But a 20 week old fetus is not an infant.
Thank you for coming to my Ted talk.
Hey, a few kinda-Nice Times! I'll take it.