May 18, 2022

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The Legal System

Roe’s end would spark legal questions in Wyoming over abortion ban exemptions | Wyoming News

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Wyoming is poised to ban nearly all abortions within its borders, after a leaked U.S. Supreme Court draft opinion indicates Roe v. Wade will likely be overturned next month.

But lawmakers and lawyers say that though the state has a trigger ban in place, Wyoming’s laws are vague when it comes to actually implementing it.

And it’s still hard to say now how a ban would be enforced, especially since the leaked opinion is not final. An official decision is expected in June.

Experts in state law, prosecution and the Wyoming constitution say there are a few key takeaways from the potential ban:

  • providing an abortion outside the ban’s exemptions would be a felony punishable by up to 14 years in prison;
  • doctors who provide abortions would be at the highest risk for prosecution — though right now, there is only one in the state;
  • many people seeking abortions in Wyoming use medication available through the mail. It’s unclear how that service will be affected if Roe is overturned; and
  • if Wyoming’s ban goes into place, a person cannot be prosecuted for going out of the state for an abortion.

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State statutes and criminality

The Wyoming Legislature passed a “trigger” bill earlier this year that will likely pave the way to a near-total ban on abortion in the state within 35 days of Roe v. Wade being officially overturned. That time frame could be shorter, or possibly delayed if a legal challenge to the ban is filed during that window.

The trigger law amends part of the state’s statute dealing with restrictions on abortion. It allows for a few exceptions to the potential ban, in cases where the mother’s life or health is in serious danger or if the pregnancy resulted from sexual assault or incest.

Right now, violating Wyoming’s abortion restrictions is a felony that can be punished by up to 14 years in prison.

“It’s going to have a chilling effect on providers,” said Rep. Mike Yin, D-Jackson, who sponsored a version of the amendment that added sexual assault and incest exceptions to the ban. “They have to make sure they’re willing to get prosecuted.”

Rep. Cathy Connolly, D-Laramie, said the threat of prosecution could also discourage doctors, particularly in emergencies, from recommending or performing abortions even if they determine it’s the best option for the mother’s health.

“Instead of the number one thought in their mind being, ‘What is the best for this patient?,’ it’s going to be, ‘What’s the law, and are we going to be prosecuted?’” she said.

The ban’s exceptions will allow providers in Wyoming to continue offering the service, though there is only one doctor actively providing abortions in the state. Organizers of a clinic offering abortions that plans to open in Casper this summer said last week they are moving forward with that process, and will still open to offer other health services if a ban is put in place.

The trigger law doesn’t specify how someone seeking an abortion would qualify for an exception to the ban, so legal experts say those decisions will likely have to be made privately with a doctor.

“I guess you’d have to prove the pregnancy is the product of these things, but nothing says how,” said Casper lawyer Ryan Semerad.

Semerad said that the way the law is written, people seeking or even aiding in seeking an abortion could also be found guilty of the felony charge. However, prosecutors are less likely to take those cases, experts said.

Current services

Abortion services are already extremely limited in the state. Most Wyomingites seeking abortions already go to other states, often to Colorado or Montana.

“I don’t think (the ban) will have a big impact, because it’s not really available in Wyoming to a huge extent,” said Sen. Cale Case, R-Lander. “Just like with other kinds of medical care, people have gotten used to going out of state.”

The sole doctor providing abortions in the state works in Jackson, and only offers abortions by medication — not surgical, which can be performed later in a pregnancy.

A 2019 law limited prohibits all abortions after viability, the point when a fetus could survive outside the womb. It also requires providers to report data on any abortions they perform to the state. The most recent data available, from 2020, shows 91 abortions were provided in Wyoming that year.

Most abortions in Wyoming are “self-managed,” using pills that can be ordered through the mail with a doctor’s referral, which can now be obtained in a telehealth consultation. Those aren’t counted in the state’s data.

Chelsea’s Fund, a Lander-based nonprofit, provides financial assistance to people seeking medication abortions. The group has assisted 73 people so far this year, according to a representative.

It’s not clear how those services would be affected if Roe is overturned. Wyoming’s ban may deter providers like JustThePill.com from sending abortion medication to people in the state, but Case said he’s not sure whether it would constitute a crime on their part — if the medication is legal in the provider’s state, he said, they could be protected.

And, Case said, there are ways around a ban on mailed medication. Pro-abortion rights activists around the country are already volunteering to receive and send abortion pills to those in states that will be affected by trigger bans.

Though there’s been talk of states attempting to stop their residents from going to another state to receive an abortion, Case said that won’t happen. A state law’s jurisdiction over a person ends when they cross the border.

Going out of state, however, requires more time and money than obtaining an abortion at home.

“That’s going to negatively impact those with less financial means,” said Connolly.

Connolly said she worries that without abortions available in Wyoming, people will turn to more dangerous, self-induced methods to end unwanted pregnancies.

Prosecution

For charges to be brought against a doctor providing abortions, a report would have to be filed with law enforcement, just like for any other crime.

Natrona County District Attorney Dan Itzen said anyone who suspects or knows an abortion was performed could file a report, even if they aren’t directly involved in the pregnancy or procedure.

The agency would then have to decide whether to investigate the claims. If they recommend a charge, alleging a violation of the ban, the local district or county prosecuting attorney would then make the call on whether to prosecute the case.

“County prosecutors and district attorneys will be very important,” Case said. “A police officer can charge someone on their own … and can arrest them in this case, but (prosecutors) ultimately decide whether to pursue those cases.”

Yin said the burden would likely fall on a prosecutor to prove that the pregnancy in question was not the result of sexual assault or incest. That process could put a father in danger of facing charges for those crimes, he said, if the abortion is found to be justified.

The threshold to obtain an abortion in Wyoming under the enumerated exceptions is lower than in some states, where exceptions are only granted in medical emergencies or where a police report is required as proof of sexual assault or incest.

“These exceptions are a bare minimum in my opinion,” Yin said.

Constitutionality

Wyoming’s constitution includes a rare, explicit mention of health care rights.

Section 38 of that document, amended by a public vote in 2012, says “each competent adult shall have the right to make his or her own health care decisions.”

That amendment came in response to concerns over Obamacare, intended to give Wyomingites the freedom to opt out of government health care and make their own choices.

Abortion opponents say that abortions are not a form of health care. But Semerad, the Casper lawyer, said that clause could nevertheless form the basis for a legal challenge to the ban.

“Are we going to have our own special Wyoming Roe?” Semerad said. “We’re going to have to resolve whether that right to health care fills in for Roe.”

A 2016 Wyoming Supreme Court opinion found that a fetus or unborn baby is not a minor, under the state’s guardianship laws. A 2005 district court ruling in Fremont County said that the state’s statutory definition of a child “does not include an unborn child or fetus.” That ruling, however, is only applicable in Fremont Cases and for criminal cases not related to abortion.

It’s likely the state will see multiple lawsuits challenging the potential ban soon after it’s enacted, experts said.



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