The Wyoming Supreme Court heard oral debate this month on abortion cases that could affect abortion, such as whether abortion is health care, when life begins, and whether abortion is health care.
The lawsuit turns on the 2012 state constitutional amendment protecting the rights of all adults to “make his or her medical decisions.” Known as an amendment to “Healthcare Access” or “Freedom of Healthcare,” the provision was enacted by voters after the passage of the federal Affordable Care Act, with the aim of limiting the scope of Obama-era healthcare laws.
In 2022, a group of potential patients, physicians and organizations relied on amendments to challenge the constitutionality of Wyoming’s lifetime law, which banned virtually all abortions. The plaintiff subsequently corrected the complaint and challenged another ban focusing on abortion medications. The plaintiffs alleged that the life law and the prohibition of medication violated the state’s constitutional rights to health care, as well as provisions regarding freedom of religion, establishment of religion, equal protection and other unrecognised rights. In November 2024, the court held that the ban violated its right to medical access and blocked enforcement.
Oral discussion of the case, Johnson vs Wyomingit mainly focuses on whether abortion care is health care. The plaintiff’s lawyer said that was obviously the case. He argued that the right to healthcare access, which was recognized as a fundamental right under the Wyoming Constitution, should be reviewed under strict scrutiny.
Meanwhile, state lawyers argued that “selective” abortions are not health care for three main reasons. First, the lawyer said that women seeking such abortion had not treated their illness or condition. Second, the abortion decision had an impact on others, that is, the fetus. Third, since the state was criminalising abortion, it was inconsistent to imagine lawmakers criminalising something that was perceived as constitutionally protected.
The state further noted that the amendment itself “is likely that Congress will determine the reasonable and necessary restrictions granted under this section to protect the health and general welfare of people, or to achieve other purposes as stated in the Wyoming Constitution.” Even if the courts defined abortion as medical care, the state therefore argued that courts should apply more deduction criteria to uphold “reasonable and necessary restrictions” due to restrictions on their rights to health care. According to state lawyers, the standard is similar to a reasonable basis.
The plaintiff’s lawyer replied that the “reasonable and necessary” language of amendments did not change the review criteria. Instead, it established that regulations must be “reasonably and necessary to protect public health and welfare.” and It may not “overly infringe on Wyomingyaite’s rights.”
All five of the courts were very interested in the criteria for reviews that the courts should apply.
The judge spent most of the discussion focusing on what would happen in the case of strict scrutiny. did Apply. State lawyers argued Wyoming had a compelling interest in protecting a fetus strong enough to survive strict scrutiny. Furthermore, it argued that the state had etched certain important exceptions to the prohibition, and that the state used the least restrictive measures to protect the life of the fetus.
The plaintiff responded that the exception demonstrated that the state did not even try to ban all elective abortions, and thus did not reach the establishment of persuasive interest. If the state considers the interest in protecting life to criminalize abortion, why did the state allow certain cases of rape and incest, or abortions of certain fetal abnormalities? In the plaintiff’s view, these exceptions suggest that the state’s commitment to fetal life is less absolute than that of Wyoming counsel.
This sparked interest in another question, which involved the relationship between religious beliefs and the state’s asserted interest in fetal life. In their brief, the plaintiffs pointed to legislative records, suggesting that in passing lifetime law, the state enacted certain religious views that many secular, Jews, Muslims, or Christian Americans did not share. Some justice has forced the nation on this point. For example, Judge Lynne Boomgaarden asked the state if there is secular basis for the state’s conclusion that life began at conception.
Judge Kari Gray appears to be more skeptical of the plaintiff’s argument, and at least somewhat open to claiming Wyoming could act to protect the life of the fetus. If strict scrutiny was applied, she asked how the court should balance the rights of the fetus or fetal children with the rights of women. Digging further, Gray wondered who should decide who will begin life. The plaintiff’s lawyer responded that the decision should be left to the individual who protected certain important decisions, whose rights to healthcare access and religious freedom. Gray, who might vote for a ruling vote in the case, asked both sides a tough question, and her vote remains difficult to predict.
The Wyoming Supreme Court could reach a decision as early as next month as Supreme Court Justice Kate M. Fox, who will leave the court on May 27th, is pending retirement.
Whatever the court decides, we will gain new insight into the effectiveness of framing abortion as a health care right. When interpreting the state’s constitution, the state Supreme Court may treat each other’s decisions as persuasive authority. If plaintiffs successfully use their right to health care as the basis for their abortion rights, they can pave the way for similar arguments in states with similar amendments, such as Ohio, Alabama, Arizona, Florida and Oklahoma. And some justice seemed interested in dealing with when life began and whether such state decisions on the issue were inherently religious.
Mary Ziegler is Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law. Her new book, Personality: A new civil war over reproductionnow available.
Suggested Quote: Mary Ziegler, Wyoming Supreme Court has been set up to determine whether abortion is health caresᴛᴀᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (April 30, 2025), https://statecourtreport.org/our-work/analysis-opinion/wyoming-supreme-court-set-set-decide-aaa-corporid-health-care
