Anti-Obamacare Law Comes Back to Bite Republicans on Abortion

When a Wyoming judge temporarily blocked an abortion ban last week, she did so on karmically beautiful legal grounds: Republicans hated Obamacare so much that they amended the state constitution more than a decade ago to enshrine the right to make health care decisions.

Earlier this month, lawmakers in Wyoming passed a ban on abortion “at all stages of pregnancy except in cases of rape or incest that’s reported to police, or to save a woman’s life,” as well as a separate ban on medication abortion. They also threw into the text that they don’t believe abortion is health care, per the Associated Press and the Casper Star Tribune.

Abortion rights advocates sued, citing, among other things, the state’s constitutional amendment that guarantees adults the right to make their own healthcare decisions; the one that voters passed in 2012 with nearly 77 percent support. That amendment was passed in response to the Affordable Care Act, which conservatives viewed as an “encroachment” into their medical decisions. (Ohio has a similar anti-Obamacare amendment in its state constitution, as Quinn Yeargain explained in Bolts Magazine earlier this month.)

During a hearing, Teton County District Court Judge Melissa Owens pointed out the fatal flaw in the state lawmakers’ argument: “An abortion can only be performed by a licensed medical professional, so what authority does the legislature have to declare that abortion is not health care?” she asked. Owens made the same case about medication abortion: “How is a doctor actually prescribing those pills not health care?”

The state assistant attorney general’s response was that, in effect, Wyoming wants embryos and fetuses to have more rights than women and pregnant people. “I would concede that if you focus just on the pregnant woman, it becomes a little bit easier to say, well, this has to be health care,” he continued. “But if you view it from that other perspective, it clearly is not.” (Abortion is absolutely health care. More than 1,200 women died from pregnancy and childbirth in 2021, and for every pregnant and postpartum person who dies, another 70 will come close to dying.)

The plaintiffs in the case include an OB/GYN from the state’s only abortion clinic in Jackson and Wellspring Health Access, which was set to open a clinic last year in Casper before a 22-year-old woman set it on fire. That woman was arrested last week and clinic repairs are still ongoing, though they hope to open in April.

John Robinson, a lawyer for the plaintiffs, made this fetal supremacy
explicit by arguing that “the legislature does not consider the woman an equal member of the human race and Wyoming.” He also noted that the medication abortion ban has exceptions for treating miscarriages and if the woman’s life is in danger, further proving that abortion is medical treatment. “How can abortion be health care in one statute prohibiting abortion and not the other?” Robinson said.

Owens’ injunction is temporary and the case will now continue with challenges to both laws heard together; it’s not certain if they’ll be struck down permanently or if the state supreme court will get involved.

It’s undeniable that part of the reason we’re even talking about abortion bans taking effect is that President Obama and Democratic lawmakers failed to codify Roe v. Wade when they were in power. But it’s a small delight that conservatives’ disdain of the first Black president and his health care plan could end up being what protects abortion access in a small number of states.