Republicans just got a painful reminder that political stunts can backfire.
On Wednesday, a judge in the deep-red state of Wyoming temporarily blocked a state law that would make performing nearly any abortion in that state a felony. She relied on a 2012 amendment to the state constitution that was intended to spite then-President Barack Obama.
Obama’s early years in office were marred by a scorched-earth political campaign Republicans wielded to try to thwart what became the Affordable Care Act. Obamacare’s opponents warned of a “government takeover of health care” that would strip many Americans of their ability to make their own health decisions.
Many of these allegations were downright ludicrous, such as former Alaska Gov. Sarah Palin’s (R) false claim that Obama’s health bill would require “my baby with Down Syndrome ... to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society’ whether they are worthy of health care.”
These attacks did not succeed. The bill became law, and Obamacare is popular now that it has been in full effect for nearly a decade without anyone being forced to stand before a death panel. But there is at least one lasting legacy of these attempts to characterize the Affordable Care Act as an attack on patients’ right to decide whether and when to seek health treatments.
In many states, opponents of Obamacare effectively took the GOP’s talking points and turned them into state constitutional amendments protecting patients’ ability to obtain health care that the government might not want them to have. Wyoming’s amendment, for example, provides that “each competent adult shall have the right to make his or her own health care decisions.”
According to Quinn Yeargain, a law professor at Widener University, similar amendments are on the books in several other states.
It remains to be seen whether the highest courts in these states, some of which are extremely conservative, will ultimately agree that these anti-Obamacare amendments prohibit abortion bans. And, in at least some cases, the amendments contain language that could mitigate their impact. Wyoming’s amendment, for example, also provides that, under certain circumstances, the state legislature may “determine reasonable and necessary restrictions on the rights granted” by the health care amendment.
But abortion advocates have had two early successes: the Wyoming judge’s order temporarily blocking that state’s abortion ban, and a similar decision by a trial judge in Ohio.
The Wyoming abortion rights litigation, briefly explained
Wyoming district court Judge Melissa Owens’s Wednesday decision temporarily halting her state’s abortion ban is the second time she intervened to prevent this ban from going into effect. Wyoming’s abortion ban is quite strict, although it does provide exceptions for rape, incest, or when either a pregnant patient or the fetus has certain medical conditions.
Last summer, shortly after the Supreme Court’s decision overruling Roe v. Wade, an array of patients, doctors, and nonprofit groups brought a suit arguing that Wyoming’s abortion ban violated the state’s constitutional provision protecting each adult’s right to individual health care decisions. That case is known as Johnson v. Wyoming.
Judge Owens handed down a decision in August halting the law. Among other things, she rejected the state’s argument that the health care amendment was “only adopted to push back against the Affordable Care Act,” and should not be construed to protect abortion rights.
Regardless of the political circumstances that led to this amendment being written into the state constitution, Owens reasoned that the amendment “unambiguously provides competent Wyoming citizens with the right to make their own health care decisions,” and she was bound by that unambiguous text. “A court,” she wrote, “is not at liberty to assume that the Wyoming voters who adopted” the amendment “did not understand the force of language in the provision.”
Just as significantly, Owens construed the amendment to give people in Wyoming a “fundamental right” to make their own health care decisions, including the decision to seek an abortion. This designation matters because fundamental rights can only be abridged when the state seeks to advance a “compelling state interest” and when it uses the “least intrusive” means to do so.
Thus, even though the amendment permits the state legislature to impose “reasonable and necessary restrictions” on individual’s health choices, Owens concluded that Wyoming’s broad ban on abortion access sweeps too far because it intrudes into pregnant patients’ health care decisions even when a “fetus has a genetic abnormality that is incompatible with life.” (The state has since amended its law to permit abortions when “there is a substantial likelihood that the unborn baby has a lethal fetal anomaly,” a change that could undermine Owens’s legal reasoning.)
There is precedent for Owens’s conclusion that this Wyoming health care amendment establishes a fundamental right that the legislature may only abridge under very limited circumstances, even though that same amendment gives the legislature some authority to enact laws. The US Constitution’s 14th Amendment has long been construed to protect many fundamental rights, such as the right to marry or the right to choose your own sexual partners. But the 14th Amendment also contains language permitting Congress to enforce its provisions “by appropriate legislation.”
Nevertheless, the fact that the 14th Amendment permits Congress to enact laws it deems “appropriate” typically does not permit Congress to abridge the fundamental rights it guarantees.
In response to Owens’s August decision blocking the state’s abortion ban, the state legislature enacted a new law decreeing that abortion “is not health care” and thus is not protected by the state constitution. Owens’s Wednesday order blocked that law as well, declaring that “the legislature cannot make an end run around” around a constitutional amendment, and that it is up to the courts to decide whether abortion meets the state constitution’s definition of “health care.”
Yet, while the state legislature appears eager to restore the state’s abortion ban, the Wyoming Supreme Court has thus far resisted the urge to rush in and overrule Owens. Last December, after a case reached the state Supreme Court that it could have used to reject Judge Owens’s reading of the state constitution, Wyoming’s justices chose instead not to decide that case. That left Owens’s August order in effect.
So, while there are plausible legal arguments on either side of this dispute, there appears to be a real chance that the state’s highest court will agree with Owens if and when they weigh in on whether the state constitution protects abortion. If the state Supreme Court shared the legislature’s view that abortion must be banned in Wyoming, it could have intervened last winter.
Could anti-Obamacare amendments protect abortion rights in other states?
At least one other state court, in Ohio, relied on that state’s anti-Obamacare amendment in an opinion temporarily blocking a law that bans nearly all abortions after the sixth week of pregnancy. That 2022 decision, in a case known as Preterm-Cleveland v. Yost, argued that a few provisions of the state constitution, including the state’s health care amendment, work together to protect abortion rights.
Last December, a state appeals court decided that the trial court’s order in Preterm-Cleveland may remain in effect, at least for now.
Ohio’s amendment provides that no state law “shall prohibit the purchase or sale of health care or health insurance.” Nor may it “impose a penalty or fine for the sale or purchase of health care or health insurance.” Thus, as long as a patient seeking an abortion pays for that treatment, the Ohio amendment appears to provide very robust protection to abortion rights.
Like the Wyoming amendment, Ohio’s permits the legislature to enact some restrictions on the right to purchase health care but the Ohio amendment uses less expansive language to describe when such restrictions are allowed — though one provision of the Ohio amendment does permit state laws that are “calculated to deter fraud or punish wrongdoing in the health care industry.” An abortion opponent would no doubt argue that abortions are themselves a form of “wrongdoing.”
In any event, the Ohio Supreme Court has a 4-3 Republican majority. So there’s no guarantee that the state’s justices will agree with the trial court’s ruling and allow abortion to remain legal in Ohio.
(Until recently, the swing vote on the Ohio Supreme Court was held by Chief Justice Maureen O’Connor, a relatively moderate Republican. But O’Connor recently retired and the Court’s new majority hasn’t developed much of a record. So it is difficult for a lawyer to assess with certainty how it is likely to rule on a case like Preterm-Cleveland.)
But what about other states that enacted health care amendments as a statement of defiance against Obamacare? The short answer is that a lawsuit seeking to protect abortion rights in these states would turn on the same questions that are in play in Wyoming and Ohio: What does the state’s health care amendment actually say? And who controls the state Supreme Court?
Alabama’s amendment, for example, is unlikely to help abortion advocates very much, even setting aside the fact that Alabama’s Supreme Court is dominated by Republicans. That’s because Alabama’s amendment primarily prohibits the state from requiring “any person, employer, or health care provider to participate in any health care system.” That language cannot reasonably be construed to protect abortion rights.
Other states, including Arizona, Missouri, and Oklahoma, enacted similar amendments preventing the state government from compelling individuals to “participate in any health care system.” These amendments are also unlikely to help proponents of abortion rights.
So this largely forgotten legacy of a failed Republican effort to spite Obamacare is only likely to matter in a very small number of states. And it may not even have a lasting impact in Wyoming and Ohio, depending on how their state Supreme Courts rule on whether the state constitution protects abortion.
For the moment, however, the Obama-era amendments writing anti-Obamacare talking points into two state constitutions have proved to be a thorn in the side of Republicans who hope to ban abortions. Let that be a lesson that a state constitution is a foolish thing to change for the sake of a political stunt.
