Wyoming abortion fight highlights hypocrisy of conservative "individualism"
The delicious irony of a the amendment written by conservatives protecting access to abortion.
On November 18th a Teton County District Court struck down two anti-abortion laws in Wyoming as unconstitutional. Judge Melissa Owens’s decision found that the Wyoming Life Act and Medication Abortion Ban violated Wyoming’s state constitutional right for an individual to make one’s own healthcare decisions. The ruling has highlighted the hypocrisy of conservative individualism in the United States.
Judge Owens’s ruling rested on Article 1, Section 38 of the Wyoming Constitution. This section is titled, “Right of health care access” and opens in part (a) with “Each competent adult shall have the right to make his or her own health care decisions.” Owens’s decision reasons that whether one continues a pregnancy is a healthcare decision, therefore, it’s a protected right.
But a fact that has largely gone unmentioned is that the specific section of the Wyoming State Constitution that protects the right to make one’s own health care decisions was an amendment originally authored by conservatives in 2011 as a direct attempt to undermine Obama’s Affordable Care Act. In fact, one of its authors, Bob Brechtel, a former member of the Wyoming House of Representatives, is frequently seen protesting abortion outside Wellspring Health Access, the exact clinic that was the plaintiff in this case. The delicious irony of anti-choice politicians having their own anti-choice legislation struck down by their own previous legislation is just too good to go untold.
Republican rhetoric has long advocated for the value of individual liberty. Conservatives have always said that issues such as gun control, COVID vaccine mandates, and regulations on the “free market” and environmental protections infringe on an individual’s right for self-determination. Even mundane safety policies such as helmet laws and seat belt laws are opposed passionately, essentially arguing that Americans have a right to be stupid if they want to.
However, it’s been clear that conservatives pick and choose what issues this individual freedom applies to. I’m not the first to wonder how someone could endorse individual rights one moment and then in the next tell others that they cannot be in a queer relationship or control their own fertility. Even as a child this seemed blatantly inconsistent to me. As I’ve grown older, I’ve come to understand the rhetorical backflips that people in power will perform to control power and resources in society. This shamelessness seems to be a special talent that comes with being male, straight, white, and/or rich.
In March of 2010, President Obama signed the Affordable Care Act (ACA) into law. With it, we entered a new stage in healthcare in this country: one that expanded healthcare access to millions of Americans, that no longer allowed denial of coverage based on pre-existing conditions, and that required coverage of healthcare essentials such as preventative care and wellness services.
One of the most legally controversial pieces was the individual mandate which required all individuals to carry basic healthcare insurance or pay a fine. Conservatives immediately balked, claiming that it infringed on states rights as well as individual rights. As a result, by the end of 2010, over 100 legislative proposals had been put forth to undermine the ACA. Ultimately 11 states passed new statutes and 5 states passed constitutional amendments protecting what was called, “the right to pay directly for health care services,” but really is a fundamental misunderstanding of how the finances of high fixed-cost, emergency industries like healthcare work (a concept, that by the way, is so basic that it was taught to me in high school, right along with the example of why all roads are not privatized and other failures of the free market such as the price of milk).
Wyoming was one of the states that passed an amendment to their state constitution. In this “Right of health care access” amendment, in addition to part (a), which was referenced in the abortion decision, it includes part (b) which was the direct response to the ACA’s individual mandate. It reads “Any person may pay… direct payment for health care without imposition of penalties or fines for doing so.” Ultimately, part (b) has been overruled by the Supreme Court of the United States as it has found the individual mandate constitutional in all three challenges that have been brought.
Consequently, the main motivation of the amendment has been neutered, but the concept of freedom in healthcare decision making remains. And since it remains, their own anti-choice legislation is being found unconstitutional from an amendment that never even served the purpose it was designed to do. The layers of irony are exquisite.
Interestingly, this amendment might also mean that medical aid in dying, the process by which people with sound mind and known terminal illnesses can end their life on their own terms, is protected in Wyoming. This process typically involves a physician prescribing life-ending medications for the patient to take independently. It’s hard to come up with a stronger case of self determination, but conservatives have long opposed this. It has yet to be formally addressed in Wyoming courts.
Unfortunately, for all they say about “checks and balances,” the American legal system is whimsical. In the end, it’s clear that legal decisions in this country are not based on rational, consistent reasoning, but based on the beliefs of whatever judges happen to hear the case using prior legal precedent bent to support their reasoning.
While pro-choice advocates can savor this small win, abortion access is far from guaranteed in Wyoming long term. Anti-choice advocates are already planning an appeal based on the grounds that abortion is not healthcare and therefore doesn’t fall under this amendment's protections. Additionally, the same amendment includes a part (c) that states, “The legislature may determine reasonable and necessary restrictions on the rights granted under this section…to protect the health and general welfare of the people.” What that includes is not defined and therefore, open for legal challenges.
Wyoming Governor Mark Gordon has directed his legal team to appeal the November 18th ruling. To re-illustrate how inconsistent the implementation of American law is, part (d) of this, now famous, amendment states, “The state of Wyoming shall act to preserve these [health care decision] rights from undue government infringement.” If this weren’t real life, with real consequences, these legal arguments would all end with “hilarity ensues.”
Jess, you nailed this story. I loved your ending!