Wyoming Supreme Court Set to Decide Whether Abortion Is Health Care

The Wyoming Supreme Court heard oral arguments this month in an abortion case that could affect litigation in states across the country— touching on whether abortion is health care, when life begins, and more.

The case turns on a 2012 state constitutional amendment protecting the right of every adult to “make his or her health care decisions.” Known as the “health care access” or “health care freedom” amendment, the provision was enacted by voters after the passage of the federal Affordable Care Act, with the purpose of limiting the reach of that Obama-era health care law.

In 2022, a group of potential patients, physicians, and organizations relied on the amendment to challenge the constitutionality of Wyoming’s Life Act, which banned virtually all abortions; later, the plaintiffs amended their complaint to also challenge a separate ban focused on abortion medication. The plaintiffs argued that the Life Act and medication abortion ban violated not only the state constitutional right to health care access but also provisions on religious liberty, the establishment of religion, equal protection, and other unenumerated rights. In November 2024, a trial court held that the bans violated the right to health care access and blocked their enforcement.

The oral arguments in the case, Johnson v. Wyoming, largely centered on whether abortion care is health care. The attorneys for the plaintiffs said it clearly is. And because the right to health care access qualified as a fundamental right under the Wyoming Constitution, they argued, any law infringing on that right should be reviewed under strict scrutiny — the most demanding standard of review, which relatively few laws satisfy.

The attorney for the state, meanwhile, argued that “elective” abortions were not health care, for three main reasons. First, the attorney said, women seeking such abortions weren’t treating an illness or condition. Second, the abortion decision affected another person — the unborn child. Third, the state had criminalized abortion, so it was incoherent to imagine that lawmakers would have criminalized something they recognized to be constitutionally protected.

The state further pointed out that the amendment itself indicates that “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 or to accomplish the other purposes set forth in the Wyoming Constitution.” Even if the court did define abortion as health care, the state asserted that courts should therefore apply a more deferential standard to restrictions on the right to health care access — upholding “reasonable and necessary restrictions.” According to the attorney for the state, this standard resembled rational basis, the least demanding standard of review.

The “reasonable and necessary” language of the amendment didn’t change the standard of review, the plaintiffs’ attorneys responded. Instead, it simply established that regulations must be “reasonable and necessary to protect the public health and welfare” and may not “unduly infringe on Wyomingites’ rights.”

All five of the justices took a keen interest in what standard of review the court should apply — and seemed skeptical that strict scrutiny wouldn’t apply to the state bans.

The justices spent a large portion of the arguments focusing on what would happen if strict scrutiny did apply. The attorney for the state argued that Wyoming had a compelling interest in protecting unborn life that was strong enough to survive strict scrutiny. What was more, Wyoming argued, the state had used the least restrictive means of protecting fetal life because the state carved out certain key exceptions to the ban.

The plaintiffs answered that the exceptions demonstrated that the state didn’t even seek to ban all elective abortions and thus fell far short of establishing a compelling interest. If the state thought its interest in protecting life required criminalizing abortion, then why did the state allow abortions in certain cases of rape and incest, or certain fetal abnormalities? In the plaintiffs’ view, these exceptions suggested that the state’s commitment to fetal life was less absolute than the attorneys for Wyoming suggested.

This sparked interest in another line of questions involving the relationship between religious belief and the state’s asserted interest in fetal life. In their briefs, the plaintiffs had pointed to the legislative record to suggest that in passing the Life Act, the state enshrined a particular religious view not shared by many secular, Jewish, Muslim, or Christian Americans. Some of the justices pressed the state on this point. For example, Justice Lynne Boomgaarden asked the state whether there was any secular basis for the state’s conclusion that life began at conception.

Justice Kari Gray seemed more skeptical of the plaintiffs’ argument and at least somewhat open to claims that Wyoming could act to protect fetal life. If strict scrutiny applied, she asked, how should the court balance the rights of the fetus or unborn child against those of women? Digging further, Gray wondered who should decide when life begins. The plaintiffs’ attorney responded that the decision should be left to the individual, whose rights to health care access and religious liberty protected certain key decisions. Gray, who may cast the deciding vote in the case, asked hard questions of both sides, and her vote remains difficult to predict.

The Wyoming Supreme Court may reach a decision as early as next month because of the pending retirement of Chief Justice Kate M. Fox, who will exit the court on May 27.

Whatever the court decides, we will have new insight into the efficacy of framing abortion as a right to health care — a lesson that could have a profound effect in other states. State supreme courts sometimes treat one another’s decisions as persuasive authority when interpreting their state constitutions. If the plaintiffs successfully use the right to health care access as the basis for a right to abortion, it could pave the way for a similar argument in states with similar amendments, including Ohio, Alabama, Arizona, Florida, and Oklahoma. And some of the justices seemed interested in addressing when life began or whether any such state decision on the matter was intrinsically religious — questions that have obvious import in every state with an abortion ban.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. Her new book, Personhood: The New Civil War over Reproduction, is now available.

Suggested Citation: Mary Ziegler, Wyoming Supreme Court Set to Decide Whether Abortion Is Health Care, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 30, 2025), http://statecourtreport.org/our-work/analysis-opinion/wyoming-supreme-court-set-decide-whether-abortion-health-care