The Wyoming Supreme Court ruled Tuesday that the state’s two abortion bans are unconstitutional, preserving a hotly contested right amid an effort by lawmakers to end the practice in the Equality State.
In one 4-1 decisionThe court agreed that the ban violates a 2012 amendment to the Wyoming Constitution that protects the rights of individuals to make their own health care decisions. That amendment, ironically, was passed by voters after a push from conservatives in the same legislature that has since made repeated attempts to restrict abortion.
“A woman has the fundamental right to make her own health care decisions, including the decision to have an abortion,” the ruling states.
“The state has failed to meet its burden that the abortion laws further demonstrate that there is a compelling interest to protect unborn life without unduly infringing on a woman’s fundamental right to make her own health care decisions. As such, the abortion laws do not impose reasonable and necessary restrictions on a pregnant woman’s right to make her own health care decisions.”
The ruling represents a victory for abortion rights advocates in one of the reddest states in the country. They argue that abortion bans run counter to the state’s long history of skepticism about government involvement in medical and other personal decisions.
“This ruling is a victory for the fundamental right of people across Wyoming to make decisions about their own lives and health,” said Julie Burkhart, president of Wellspring Health Access in Casper, the only facility in Wyoming that offers abortions. “Our clinic will remain open and ready to provide compassionate reproductive health care, including abortion, and our patients in Wyoming will be able to receive this care without having to leave the state.”
For abortion opponents, the decision is a bitter setback that suggests an abortion ban would require changes to the Wyoming Constitution — a tougher hurdle than a simple majority vote in the Republican-dominated state House.
Constitutional amendment
Still, Gov. Mark Gordon immediately called on the Wyoming Legislature to initiate a constitutional amendment during the upcoming budget session, which begins next month.
“It is time for this issue to be put before the people for a vote, and I believe it should be put before them this fall. A constitutional amendment presented to the people of Wyoming would trump all judicial decisions,” Gordon said in a statement Tuesday lamenting the Supreme Court’s decision.
If lawmakers pass a resolution to amend the Constitution, it will be up to voters to approve it in the 2026 elections. House Speaker Chip Neiman, R-Hulett, told WyoFile Tuesday that he and Sen. Cheri Steinmetz, R-Torrington, have already begun working on legislation that would clear the way for voters to decide on a constitutional amendment.
Gordon reiterated his disappointment with the decision in a Tuesday interview with WyoFile.
While the ruling “probably happened a few years later than I would have hoped,” Gordon said, he said he was also relieved that the ruling came before the hearing so lawmakers have a chance to place a constitutional amendment on the ballot.
“At the end of the day, I think it’s important to get the word out to voters,” Gordon said.
The governor also responded to some lawmakers and other government officials who, in the aftermath of the decision, attacked the judiciary and questioned its legitimacy because the judges were appointed.
“If all you have is a hammer, you know, everything is going to look like a nail,” Gordon said.
In recent years, lawmakers have shown increasing interest in change the process for electing the judges of the state.
“Obviously people are going to have strong opinions about it. I understand that, and I understand that. But the legal system does more than just abortion issues,” Gordon said.
The governor also announced Tuesday afternoon that the attorney general’s office will file a petition to reconsider the decision at his request.
Legislative history
Wyoming’s once-vaunted political ethos of live and let live has thwarted legislative efforts to restrict abortion for years. That began to change in the years before the landmark 2022 U.S. Supreme Court decision was overturned Roe v. Wadewhich has guaranteed abortion rights in the US since 1973.
In early 2022, Wyoming lawmakers passed a trigger law banning abortion Roo‘s fall. But that ban didn’t go into effect because of a lawsuit related in part to Wyoming’s 2012 constitutional amendment.
In 2023, Republican lawmakers in the legislature tried again, this time succeeding in passing two abortion bans. One of these was a fairly extensive ban, with only a few notable exceptions, such as in the case of rape or incest. A second law banned medication for abortions – the first law of its kind in the country.
A group of abortion providers and advocates challenged the constitutionality of the bans, and Teton County District Judge Melissa Owens temporarily blocked them as the case played out.
Finally, in November 2024, Owens ruled that the bans were unconstitutional. The state, which was represented by the Wyoming Attorney General’s office, appealed the decision to the Wyoming Supreme Court. The justices heard arguments on the case in April.
In the meantime, Wellspring Health Access in Casper has provided abortions for women in Wyoming and neighboring states. The facility was target of an arsonist before opening and later becoming a plaintiff in the legal battle against the growing number of abortion restrictions passed by state lawmakers, including mandatory ultrasounds and a 48-hour waiting period that expired earlier this year.
A state judge in April enforcement of these two laws ceased while a separate challenge continues, concluding that they “affect a fundamental right expressly provided for by the Constitution of Wyoming.” It remains to be seen what impact the Supreme Court ruling will have on the ongoing case.
Judge Kari Gray was the dissenting voice in the case, while Judge John Fenn wrote a concurring opinion. Meanwhile, retired Judge Kate Fox has participated in the consideration and decision of the case since she heard the case, per state law and the Wyoming Constitution.
The Supreme Court’s decision
Like the district court, the Supreme Court focused “on a single issue,” the ruling said.
The question at hand: “Do Wyoming’s laws restricting abortions unjustifiably limit a woman’s constitutional right to make her own health care decisions?”
Article 1, Section 38 of the Wyoming Constitution – the Health Care-Related Amendment – was at the heart of that question. And there were two ideas that the court was unanimous on.
“All five justices of the Wyoming Supreme Court agreed that the decision to terminate or continue a pregnancy is the woman’s own health care decision protected by Article 1, Section 38,” the ruling said.
The court unanimously concluded that an adult’s right to make his or her own health care decisions is a “fundamental right because of the very specific language used and because that language is included in a section of the Wyoming Constitution called the ‘Declaration of Rights’.”
However, the judges “took different paths in analyzing the case,” the ruling states. For example, the majority position was reached in two different ways.
Three of the court’s justices — Lynne J. Boomgaarden, Robert C. Jarosh and Kate M. Fox — sought to determine whether the state proved that the 2023 abortion laws were “written as narrowly as possible to achieve the state’s interest in protecting prenatal life” and whether “the abortion laws were the least burdensome way in which the state could achieve that goal without unjustifiably limiting a woman’s constitutional right to decide whether to terminate or continue a pregnancy.”
Those judges concluded that Wyoming did not present sufficient evidence to indicate that its laws met that threshold and therefore “the majority ruled that those laws are unconstitutional.”
Judge Fenn agreed with that conclusion. However, he “arrived at that by relying on a different test, using only the words of Article 1, Section 38.” Ultimately, Fenn concluded that Wyoming failed to prove that the abortion bans were “reasonable and necessary restrictions” on the constitutional right to make one’s own health care decisions.
Meanwhile, Judge Gray relied on that same language, but wrote that she would refer to the Wyoming Legislature in deciding whether the abortion restrictions were “reasonable and necessary.”
Ultimately, the court voted 4-1 to strike down the 2023 abortion laws.
“The court has recognized that it cannot add words to the Wyoming Constitution, that is not its job,” the ruling said. “But lawmakers could ask Wyoming voters to consider a constitutional amendment that would more clearly address this issue.”
WyoFile is an independent, nonprofit news organization focused on the people, places and policies of Wyoming.
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