Wyoming abortion ban blocked due to Obamacare-era amendment

Abortion is legal in Wyoming again, oddly enough as the result of a state constitutional amendment pushed by conservatives opposed to Obamacare more than a decade ago.

Teton County District Court Judge Melissa Owens in a ruling Wednesday temporarily blocked enforcement of the state’s newly enacted abortion ban that took effect Sunday.

Owens’ decision pointed to a 2012 amendment to the state constitution that granted Wyoming citizens the right to make their own health-care decisions. 

Wyoming voters overwhelmingly passed that amendment, which was intended to protect them from hypothetical harms contained in then-President Barack Obama’s signature health law, the Affordable Care Act.

Anti-abortion lawmakers in Wyoming have tried to work around the 2012 amendment in passing the ban on abortion.

The state’s sweeping ban, dubbed “Life is a Human Right Act,” claims that abortion is not a form of health care.

“Instead of being health care, abortion is the intentional termination of the life of an unborn baby,” the act says, explicitly targeting the anti-Obamacare amendment in the constitution.

The ban prohibits abortion in most circumstances, providing exceptions for incest, sexual assault, cases of “lethal fetal anomaly,” or when the pregnant person’s life is in danger. Violation of the law is a felony and carries penalties of up to five years in prison and a $20,000 fine.

But Owens in her ruling Wednesday said the state legislature was overstepping its authority.

“To declare abortion is not health care when there may be evidence to show that it is — the legislature cannot make an end run around essentially providing a constitutional amendment,” she said during a hearing on Wednesday, according to a New York Times report.

Owens added “the state cannot legislate away a constitutional right. It’s not clear if abortion is or isn’t health care, and the court has to then decide that.”

She also told Jay Jerde, a special assistant attorney general for Wyoming who is defending the law for the state, “I’m just still hung up on abortion not being health care,” the Times reported.

“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 when our laws only allow a licensed medical professional to administer one?” she asked Jerde during the hearing.

Owen’s decision pauses the abortion ban until further court proceedings in a lawsuit challenging it. It’s unclear whether the court will ultimately agree that the anti-Obamacare amendment prohibits a state abortion ban. 

The constitutional amendment contains language that might allow the ban to take effect. That amendment said the state legislature “may determine reasonable and necessary restrictions on the rights granted” by the amendment.

Across other states, constitutional amendments have become unlikely weapons in the fight against restrictions on abortion. For instance, a judge in Ohio in October temporarily blocked the state’s abortion ban because of a constitutional provision adopted in 2011 as a backlash to Obamacare.

In South Carolina, the Supreme Court struck down the state’s abortion ban after six weeks, ruling that it violated the right to privacy in the state’s constitution. Similarly, a Florida judge in June temporarily paused the ban on abortions after 15 weeks of pregnancy because it violated the state’s constitutional right to privacy.

Those actions represent a broader shift in the legal battle over abortion rights after the Supreme Court in June 2022 overturned the half century-old Roe v. Wade ruling. After that, abortion rights were largely left up to individual states. Some states rushed to ban the procedure completely, while others gradually rolled out new restrictions. Most abortions are now banned in more than a dozen states, including Texas, Idaho, Wisconsin, Tennessee, Oklahoma and West Virginia. 

The Wyoming judge’s decision on Wednesday comes as Republican opposition to Obamacare has died down considerably.

Obamacare aimed to make health care more affordable by offering tax credits for individual private health insurance plans and expanding Medicaid, the joint federal-state program that provides health coverage to lower-income Americans.

Obamacare also mandated that health insurance plans had to contain certain minimum coverage benefits.

Republicans strongly opposed the law at the time, arguing that it represented “a government takeover of health care” that deprived Americans of their ability to choose their own doctors and make medical decisions.

GOP lawmakers during the Trump administration repeatedly failed to repeal the ACA, much less approve a replacement law. In the meantime, 39 states have expanded their Medicaid programs to more beneficiaries under the ACA.

Wyoming is the sole Western state not to have expanded Medicaid.

— CNBC’s Dan Mangan contributed to this report.