State of Wyoming; Mark Gordon v. Danielle Johnson; Kathleen Dow; Giovannina Anthony, M.D.; Rene R. Hinkle, M.D.; Chelsea's Fund; and Circle of Hope Healthcare D/B/A Wellspring Health Access

          SUMMARY ISSUED BY THE WYOMING SUPREME COURT

                                      January 6, 2026

                       State v. Johnson, No. S-24-0326, 

        This summary is intended to help the public understand the main points of the
decision. It does not modify, supplement, or change the content of the Court’s opinion, or
that of the specially concurring and dissenting opinions, and it should not be cited or relied
on as legal precedent.

Case Background

       In 2022, in Dobbs v. Jackson Women’s Health Organization, the United States
Supreme Court overruled Roe v. Wade, leaving authority to regulate abortion to the
individual states.

       In 2023, the Wyoming Legislature passed a law called the Life is a Human Right
Act, which prohibits people from performing abortions in Wyoming, with certain
exceptions. The Legislature also passed a law making it illegal “to prescribe, dispense,
distribute, sell or use any drug for the purpose of procuring or performing an abortion on
any person.” That law also contains certain exceptions.

       Immediately after these laws took effect, a group of medical professionals, two non-
profit corporations, and an individual woman (the Plaintiffs) sued the State and those
responsible for enforcing the laws. The Plaintiffs asked the courts to rule that both laws
violate the Wyoming Constitution.

      After reviewing evidence and hearing both sides’ arguments, the trial court
concluded the laws violate the Wyoming Constitution and told the State it cannot enforce
them. The State appealed that decision to the Wyoming Supreme Court.

Issue Before the Court

        Because the Wyoming Supreme Court has the final say on what the Wyoming
Constitution means, the Supreme Court did not rely on what the trial court decided. But
like the trial court, the Supreme Court focused on a single issue:

       Do the Wyoming laws restricting abortions unjustifiably limit a
       woman’s state constitutional right to make her own health care
       decisions?
       In 2012, Wyoming voters passed an amendment to the Wyoming Constitution that
gave Wyoming adults the right to make their own health care decisions. That amendment,
found at Article 1, Section 38 of the Wyoming Constitution, was intended to respond to
the Affordable Care Act (a federal law often called Obamacare) and specifically says that:
“Each competent adult shall have the right to make his or her own health care decisions.”

The Court’s Decision

        In deciding what that language means in this case, all five Wyoming Supreme Court
justices agreed that the decision whether to terminate or continue a pregnancy is a woman’s
own health care decision protected by Article 1, Section 38. Relying on law from earlier
Wyoming Supreme Court cases, all five justices also concluded that an adult’s right to
make his or her own healthcare decisions is a fundamental right because of the very specific
language used and because that language was put in a section of the Wyoming Constitution
called the “Declaration of Rights.”

       At this point, however, the justices took different paths in analyzing this case. Three
justices concluded that the Court has an independent role in deciding what test applies to
determine whether the 2023 laws violate the state constitution. Looking at prior cases and
the language of Article 1, Section 38, the majority decided that a test called “strict scrutiny”
applies in this case. Under that test, the State must prove the 2023 abortion laws were
written as narrowly as possible to achieve the State’s interest in protecting prenatal life—
that the abortion laws were the least burdensome way the State could achieve that goal
without unjustifiably restricting a woman’s constitutional right to decide whether to
terminate or continue a pregnancy. Only if the State met its burden of proof at the trial
court level could the Supreme Court conclude the laws did not violate Article 1, Section
38.

        The majority determined the State did not present enough evidence to show the
restrictions (and exceptions) on performing abortions and the ban on medications (and
exceptions) are no more restrictive than necessary to serve the State’s interest in protecting
prenatal life. Therefore, the majority held that those laws are unconstitutional.

        Justice Fenn agreed with this result but arrived there by relying on a different test
using only the words from Article 1, Section 38. In his specially concurring opinion, Justice
Fenn concluded that the State failed to prove the 2023 laws were “reasonable and necessary
restrictions” on the right to make one’s own health care decisions.

       Justice Gray also relied on the “reasonable and necessary” language found in
Section 38. However, in her dissenting opinion, she would defer to the Legislature when
deciding whether the abortion restrictions were “reasonable and necessary.”
       When the opinions are read together, four justices (Boomgaarden, Fox, Jarosh, and
Fenn) voted to strike down the 2023 abortion laws. Justice Gray voted to uphold the laws.
In a footnote, the majority highlighted the State’s argument that the language of Article 1,
Section 38 was only meant to deal with Obamacare concerns, not abortion choices. The
Court recognized it cannot add words to the Wyoming Constitution, that’s not its job. But
lawmakers could ask Wyoming voters to consider a constitutional amendment that would
more clearly address this issue.
                 IN THE SUPREME COURT, STATE OF WYOMING

                                      

                                                      OCTOBER TERM, A.D. 2025

                                                             January 6, 2026


 STATE OF WYOMING; MARK
 GORDON, Governor of Wyoming;
 BRIDGET HILL, Attorney General for
 the State of Wyoming;

 Appellants
 (Defendants),

 v.
                                                         S-24-0326
 DANIELLE JOHNSON; KATHLEEN
 DOW; GIOVANNINA ANTHONY,
 M.D.; RENE R. HINKLE, M.D.;
 CHELSEA’S FUND; and CIRCLE OF
 HOPE HEALTHCARE d/b/a
 WELLSPRING HEALTH ACCESS,

 Appellees
 (Plaintiffs).

                     Appeal from the District Court of Teton County
                       The Honorable Melissa M. Owens, Judge

Representing Appellants:
      Jay Arthur Jerde, Special Assistant Attorney General. Argument by Mr. Jerde.

Representing Appellees:
      Marci Crank Bramlet, John H. Robinson, Robinson Bramlet LLC, Casper,
      Wyoming. Peter S. Modlin, Gibson Dunn & Crutcher, LLP, San Francisco,
      California. Argument by Ms. Bramlet and Mr. Modlin.
Before BOOMGAARDEN, C.J., and FOX*, GRAY, FENN, and JAROSH, JJ.

BOOMGAARDEN, C.J.; delivers the opinion of the Court; Fenn, J., files a specially
concurring opinion; Gray, J., files a dissenting opinion.

* Justice Fox retired from judicial office effective May 27, 2025, and, pursuant to Article 5, § 5 of
the Wyoming Constitution and 

(f) (2023), she was reassigned to act on
this matter on May 28, 2025.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
BOOMGAARDEN, Chief Justice.

[¶1] This appeal presents the question of whether Wyoming’s statutes restricting a
woman’s ability to terminate a pregnancy are constitutional. In deciding this question, we
recognize the longstanding debate over abortion and the sincerely and deeply held beliefs
of those on each side of that debate. “Abortion is a profoundly difficult and contentious
issue because it presents an irreconcilable conflict between the interests of a pregnant
woman who seeks an abortion and the interests in protecting fetal life. The interests on
both sides of the abortion issue are extraordinarily weighty.” Dobbs v. Jackson Women’s
Health Org., 

, 

, 

 (2022)
(Kavanaugh, J., concurring).

[¶2] Article 1, § 38 of the Wyoming Constitution, guarantees each competent adult “the
right to make his or her own health care decisions,” and it directs the State of Wyoming,
of which the judicial branch is a part, “to preserve these rights from undue governmental
infringement.” The district court concluded Article 1, § 38 establishes a fundamental right
to make health care decisions, the decision to have an abortion is a health care decision,
and the State was required to justify the statutes restricting access to abortion under the
strict scrutiny standard. The court determined the State failed to meet its burden and the
Wyoming laws restricting abortion access unreasonably and unnecessarily infringe on this
right. Although we recognize the State’s interest in protecting the life that an abortion
would end, we conclude the State did not meet its burden of justifying the abortion statutes’
restrictions on a woman’s right to make her own health care decisions, as is expressly
protected by the Wyoming Constitution. We therefore affirm.

                                          ISSUE

[¶3] The parties present numerous issues concerning the constitutionality of the abortion
restrictions under several provisions of the Wyoming Constitution. We address a single
dispositive issue: Do the Wyoming laws restricting access to abortion unduly infringe on a
woman’s right to make health care decisions under Article 1, § 38 of the Wyoming
Constitution?

                                          FACTS

[¶4]   In 2012, the Wyoming electorate approved Article 1, § 38. That provision states:

              (a) Each competent adult shall have the right to make his or her
              own health care decisions. The parent, guardian or legal
              representative of any other natural person shall have the right
              to make health care decisions for that person.




                                             1
                  (b) Any person may pay, and a health care provider may
                  accept, direct payment for health care without imposition of
                  penalties or fines for doing so.

                  (c) 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.

                  (d) The state of Wyoming shall act to preserve these rights
                  from undue governmental infringement.

Wyo. Const. art. 1, § 38.

[¶5] In 2023, the Wyoming Legislature enacted two measures restricting abortion
(collectively the Abortion Laws). 1 The Life is a Human Right Act (the Life Act), enacted
as 

 to 35-6-138, prohibits persons from performing abortions
in Wyoming, with certain exceptions. 2 

 (the Medication Ban)

1
    The Abortion Laws define abortion as follows:


          “Abortion” means the act of using or prescribing any instrument, medicine, drug or any
          other substance, device or means with the intent to terminate the clinically diagnosable
          pregnancy of a woman, including the elimination of one (1) or more unborn babies in a
          multifetal pregnancy, with knowledge that the termination by those means will, with
          reasonable likelihood, cause the death of the unborn baby. “Abortion” shall not include any
          use, prescription or means specified in this paragraph if the use, prescription or means are
          done with the intent to:

                  (A) Save the life or preserve the health of the unborn baby;

                  (B) Remove a dead unborn baby caused by spontaneous abortion or intrauterine
                  fetal demise;

                  (C) Treat a woman for an ectopic pregnancy; or

                  (D) Treat a woman for cancer or another disease that requires medical treatment
                  which treatment may be fatal or harmful to the unborn baby.

(a)(i) (2025).
2
    The Life Act bans abortion as follows:

          (a) Except as provided in W.S. 35-6-124, no person shall knowingly:




                                                       2
                (i) Administer to, prescribe for or sell to any pregnant woman any medicine, drug
                or other substance with the specific intent of causing or abetting an abortion; or

                (ii) Use or employ any instrument, device, means or procedure upon a pregnant
                woman with the specific intent of causing or abetting an abortion.

 (2025).

It sets forth the following exceptions to the abortion ban:

        (a) It shall not be a violation of W.S. 35-6-123 for a licensed physician to:

                (i) Perform a pre-viability separation procedure necessary in the physician’s
                reasonable medical judgment to prevent the death of the pregnant woman, a
                substantial risk of death for the pregnant woman because of a physical condition
                or the serious and permanent impairment of a life-sustaining organ of a pregnant
                woman, provided that no separation procedure shall be deemed necessary under
                this paragraph unless the physician makes all reasonable medical efforts under the
                circumstances to preserve both the life of the pregnant woman and the life of the
                unborn baby in a manner consistent with reasonable medical judgment;

                (ii) Provide medical treatment to a pregnant woman that results in the accidental
                or unintentional injury to, or the death of, an unborn baby;

                (iii) Perform an abortion on a woman when the pregnancy is the result of incest as
                defined by W.S. 6-4-402 or sexual assault as defined by W.S. 6-2-301. Prior to the
                performance of any abortion under this paragraph the woman, or the woman’s
                parent or guardian if the woman is a minor or subject to a guardianship, shall report
                the act of incest or sexual assault to a law enforcement agency and a copy of the
                report shall be provided to the physician; or

                (iv) Perform an abortion on a woman when in the physician’s reasonable medical
                judgment, there is a substantial likelihood that the unborn baby has a lethal fetal
                anomaly or the pregnancy is determined to be a molar pregnancy.

        (b) Nothing in this act shall be construed to prohibit the use, sale, prescription or
        administration of a contraceptive measure, drug, chemical or device if the contraceptive
        measure, drug, chemical or device is used, sold, prescribed or administered in accordance
        with manufacturer instructions and is not used, sold, prescribed or administered with the
        specific intent to cause or induce an abortion.

 (2025). The Life Act defines a “lethal fetal anomaly” as “a fetal condition
diagnosed before birth and if the pregnancy results in a live birth there is a substantial likelihood of death
of the child within hours of the child’s birth.” 

(a)(vi).


                                                      3
makes it illegal “to prescribe, dispense, distribute, sell or use any drug for the purpose of
procuring or performing an abortion on any person,” again with certain exceptions. 3 The
Life Act and the Medication Ban impose criminal sanctions and civil penalties for those
who violate the statutes. 

 to 35-6-126 (2025); 

(c) (2025).

[¶6] The Life Act became effective on March 17, 2023, and the Medication Ban became
effective July 1, 2023. Wyo. Sess. Laws 2023, ch. 184, § 8; Wyo. Sess. Laws 2023, ch.
190, § 1. Plaintiffs 4 immediately filed a complaint in district court against the State and
those charged with enforcing the Abortion Laws (collectively the State). Plaintiffs sought
a declaration that the Abortion Laws violate the Wyoming Constitution, and they also
sought a temporary restraining order and preliminary and permanent injunctions enjoining
enforcement of the laws.


3
    The Medication Ban provides as follows concerning the prohibited acts and exceptions:

          (a) Notwithstanding any other provision of law, it shall be unlawful to prescribe, dispense,
          distribute, sell or use any drug for the purpose of procuring or performing an abortion on
          any person.

          (b) The prohibition in subsection (a) shall not apply to:

                  (i) The sale, use, prescription or administration of any contraceptive agent
                  administered before conception or before pregnancy can be confirmed through
                  conventional medical testing;

                  (ii) The treatment of a natural miscarriage according to currently accepted medical
                  guidelines;

                  (iii) Treatment necessary to preserve the woman from an imminent peril that
                  substantially endangers her life or health, according to appropriate medical
                  judgment, or the pregnancy is the result of incest as defined by W.S. 6-4-402 or
                  sexual assault as defined by W.S. 6-2-301. As used in this paragraph, “imminent
                  peril” means only a physical condition and shall not include any psychological or
                  emotional conditions. No medical treatment shall form the basis for an exception
                  under this paragraph if it is based on a claim or diagnosis that the pregnant woman
                  will engage in conduct which she intends to result in her death or other self-harm.

 (2025).
4
  Plaintiffs include: two physicians specializing in obstetrics and gynecology; an emergency room nurse
who treats pregnant women and is herself a mother who plans to have additional children; a woman of the
Jewish faith who is of reproductive age and plans to have children; a nonprofit organization that assists in
providing access to abortion services through information, funding assistance, and other logistical support
necessary to facilitate travel, lodging, and childcare for a woman seeking abortion care; and a nonprofit
corporation that operates a clinic and mobile unit providing reproductive health care services, including
abortions.


                                                       4
[¶7] The district court entered temporary restraining orders enjoining enforcement of the
Abortion Laws, and Plaintiffs and the State filed cross-motions for summary judgment.
The court held a hearing on the summary judgment motions and accepted materials from
both sides. The State submitted materials concerning the history of abortion regulation in
Wyoming and the history and circumstances surrounding adoption of Article 1, § 38. The
Plaintiffs presented their personal affidavits, expert affidavits, and excerpts from
governmental and academic reports, publications, and studies. The court concluded the
Abortion Laws violate a woman’s right to make health care decisions under Article 1, § 38
of the Wyoming Constitution and granted Plaintiffs’ summary judgment motion on that
ground. The court denied the State’s motion in its entirety and entered a permanent
injunction enjoining enforcement of the Abortion Laws. The State timely appealed to this
Court.

[¶8] Before turning to our discussion of the parties’ claims on appeal, we set forth the
legal and evidentiary principles that will guide and inform our analysis of those claims.

                     LEGAL AND EVIDENTIARY FRAMEWORK

I.     The Court’s Role in Considering the Constitutionality of the Abortion Laws

[¶9] “Unlike the U.S. Constitution, which implies a separation of powers principle from
the division of power among the three coordinate branches of the federal government,
Wyoming has incorporated an explicit separation of powers article into its constitution.”
Robert B. Keiter, The Wyoming State Constitution 111 (2d ed. 2017). The Wyoming
Constitution directs:

              The powers of the government of this state are divided into
              three distinct departments: The legislative, executive and
              judicial, and no person or collection of persons charged with
              the exercise of powers properly belonging to one of these
              departments shall exercise any powers properly belonging to
              either of the others, except as in this constitution expressly
              directed or permitted.

Wyo. Const. art. 2, § 1.

[¶10] “This provision precludes one branch of government from exercising authority that
belongs to another branch, unless the constitution otherwise authorizes it.” The Wyoming
Constitution, supra, at 111. We have said that “[w]hile it is our duty to give great deference
to legislative pronouncements and uphold constitutionality when possible, it is likewise our
equally imperative duty to declare a legislative enactment invalid if it transgresses the state
constitution.” Witzenburger v. State ex rel. Wyoming Cmty. Dev. Auth., 

,


                                              5
1114 (Wyo. 1978). And we have recognized that sometimes the role of the judiciary
requires it to make rulings that affect the legislative branch. Billis v. State, 

 (Wyo. 1990) (“Under both constitutions the judicial department has and exercises the
power to adjudicate and declare legislative enactments unconstitutional, which by its nature
injects the judicial department into the business of the legislative department.”); see also
Conrad v. Uinta Cnty. Republican Party, 

, 

 (Wyo.
2023) (“It is emphatically the province and duty of the judicial department to say what the
law is.”) (quoting Marbury v. Madison, 

, 

 (1803)).
Despite the Wyoming Constitution’s separation of powers mandate and our clear
precedent, the State contends that, as there are many philosophic, moral, and religious
views on when the protectable life of the fetus arises, the decision on the availability of
abortion care is up to the legislature because “it is closest to the people.” This position
ignores the independent role of the judiciary directed by the Wyoming Constitution.

              Declaring the validity of statutes in relation to the constitution
              is a power vested in the courts as one of the checks and
              balances contemplated by the division of government into
              three departments legislative, executive and judicial ever since
              first enunciated in Marbury v. Madison, 1803, 

, 

 and carried forward into Wyoming
              state government by [Article 2, § 1 of the] Wyoming
              Constitution.

Washakie Cnty. Sch. Dist. No. One v. Herschler, 

 (Wyo. 1980), cert.
denied, 

 (1980).

[¶11] Because this appeal calls on this Court to perform its constitutionally assigned duty
to interpret the Wyoming Constitution and the Abortion Laws to determine whether the
line drawn by the legislature transgresses a woman’s right to make health care decisions,
we decline the State’s invitation to simply defer to legislative judgment on where that line
should or can be drawn.

II.    Standard of Review and Levels of Scrutiny

[¶12] We review a district court’s rulings on summary judgment and the constitutionality
of statutes de novo. Martin v. Bd. of Cnty. Comm’rs of Laramie Cnty., 

, ¶¶ 5–
6, 

, 71 (Wyo. 2022). Summary judgment is appropriate when there are no
genuine issues of material fact and the prevailing party is entitled to judgment as a matter
of law. Hamann v. Heart Mountain Irrigation Dist., 

, 

,
1278 (Wyo. 2025) (quoting Tilden v. Jackson, 

, 

, 1202
(Wyo. 2025)). Often, when we are reviewing a summary judgment order, it is because the
party against whom summary judgment was granted contends there are disputed issues of
material fact and a trial is necessary to resolve them. See e.g., Tilden, 

,


                                              6
568 P.3d at 1202 (appellant claimed, in a private road action, there were material issues of
fact regarding the availability of convenient and reasonable access). In this case, however,
the parties presented competing motions for summary judgment and, although the State
objected to the district court’s consideration of some of the Plaintiffs’ evidence on
relevancy and other grounds, the State does not dispute the reliability of the information or
claim the case should be sent back to the district court for a trial on the facts. Consequently,
there are no factual issues which preclude summary judgment. The case before us presents
only questions of law.

[¶13] Generally, “[t]he party challenging the constitutionality of a statute bears the burden
of proving the statute is unconstitutional.” Gordon v. State, 

, ¶ 12, 

 (Wyo. 2018) (citation omitted). “That burden is a heavy one in that the
appellant must clearly and exactly show the unconstitutionality beyond any reasonable
doubt.” 

 (citation modified). If the right implicated is an ordinary rather than a
fundamental right, we apply a rational basis test to determine whether the challenger has
met this burden. Martin, 

, 503 P.3d at 77. “Under the rational basis test,
we determine whether the statutes are reasonably related to a legitimate government
interest.” Sheesley v. State, 

, ¶ 12, 

 (Wyo. 2019); see also
Hardison v. State, 

, 

, 40–41 (Wyo. 2022) (the rational basis
test considers whether the challenged statute serves a legitimate government interest and
the statute is a rational way to serve that interest).

[¶14] “However, when a law disproportionately affects more than ordinary rights . . . , a
more critical analysis is warranted.” Martin, 

, 503 P.3d at 73.

              [W]here a citizen’s fundamental constitutional right . . . is
              involved[,] the strong presumptions in favor of
              constitutionality are inverted, [and] the burden then is on the
              governmental entity to justify the validity of the statute, and
              this Court has a duty to declare legislative enactments invalid
              if they transgress a constitutional provision.

Hardison, 

, 507 P.3d at 39 (quoting Reiter v. State, 

, 

 (Wyo. 2001)) (citation modified). When a statute impacts a fundamental
right, we carefully assess the nature of the right considering the express constitutional
language from which it is derived to determine whether strict scrutiny or some other test
for constitutionality should apply. Compare Mills v. Reynolds, 

 (Wyo.
1992) (applying strict scrutiny to determine whether statutes restricting injured employee’s
fundamental right, under Article 1, § 8, to access courts to sue co-employees were narrowly
tailored to serve a compelling state interest), with White v. State, 

, 1315–19
(Wyo. 1989) (applying rational basis/relationship test to Wyoming Governmental Claims
Act in recognition of Article 1, § 8’s express constitutional limitation on individual’s right
to access court for suits against the state).


                                               7
III.   Rules of Constitutional and Statutory Interpretation

[¶15] We use the same rules to interpret constitutional and statutory provisions. “[W]e are
guided primarily by the intent of the drafters.” Gordon, 

, ¶ 30, 

. “In determining that intent, we look first to the plain and unambiguous language used
in the text[.]” 

 “If the language is plain and unambiguous, there is no room left for
construction.” 

 “It must be presumed that in case of a constitution the people have
intended whatever has been plainly expressed. Courts are not at liberty to depart from that
meaning which is plainly declared.” 

 “To determine what the drafters intended, we
attempt to understand the meaning of the words at the time the [provision] was ratified.”
Id., ¶ 31, 

.

[¶16] Additionally, we follow harmonizing rules when interpreting the constitution and
statutes. Saunders v. Hornecker, 

, 

 (Wyo. 2015).

              Our cases explain that every statement in the constitution must
              be interpreted in light of the entire document, rather than as a
              series of sequestered pronouncements, and that the constitution
              should not be interpreted to render any portion of it
              meaningless, with all portions of it read in pari materia and
              every word, clause and sentence considered so that no part will
              be inoperative or superfluous.

Saunders, 

, ¶ 19, 

 (citations omitted); see also Hede v. Gilstrap,

, 

 (Wyo. 2005) (discussing the same rules in the context
of statutory interpretation).

[¶17] When a court determines a statutory or constitutional provision is clear and
unambiguous, it gives effect to the plain language and generally will not resort to the rules
of construction. In re Est. of Kirkpatrick, 

, 

 (Wyo. 2003)
(citing Sechrist v. State ex rel. Wyo. Workers’ Safety and Comp. Div., 

,

, 1140–41 (Wyo. 2001)). However, if a court determines the language is
ambiguous, it may use extrinsic aids of interpretation to help determine the drafters’ intent.
Steele v. Neeman, 

 (Wyo. 2000). We have also recognized that, in some
cases, it is appropriate to use extrinsic aids of construction to confirm our interpretation of
the plain language of the provision. See Solvay Chems., Inc. v. Wyo. Dep’t of Revenue,

, 

 (Wyo. 2022); Parker Land & Cattle Co. v. Wyo.
Game & Fish Comm’n, 

 (Wyo. 1993). Extrinsic aids of construction
consider “the mischief the act was intended to cure, the historical setting surrounding its
enactment, the public policy of the state, the conditions of the law and all other prior and
contemporaneous facts and circumstances that would enable the court intelligently to
determine the intention of the lawmaking body.” Parker Land & Cattle Co., 

                                             8
1044 (quoting Carter v. Thompson Realty Co., 

 (Wyo. 1942)); see also
Dir. of Off. of State Lands & Invs. v. Merbanco, Inc., 

, ¶¶ 36–46, 

,
253–56 (Wyo. 2003) (discussing historical setting while interpreting constitutional
provision).

IV.    We Overrule the “No-Set-of-Circumstances” Distinction between Facial and As-
       Applied Constitutional Challenges to Statutes

[¶18] The State asserts that Plaintiffs’ challenges to the Abortion Laws are purely facial
and that Plaintiffs must therefore establish that “no set of circumstances exists” under
which the abortions laws would be valid. See Gordon, 

, ¶ 12, 

(observing that a facial challenge is “the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act
would be valid.”). We disagree that all Plaintiffs’ claims are purely facial, but setting that
aside, we have previously questioned our continued adherence to this standard in that it is
widely criticized by scholars and federal courts alike, including the U.S. Supreme Court.
See 

 ¶ 12 n.10, 

 n.10. In this case, we honor the reservations we
expressed in Gordon and follow the lead of the Tenth Circuit Court of Appeals, which,
after an extensive examination of U.S. Supreme Court precedent, rejected this distorted
and incorrect framing of the distinction between facial and as-applied constitutional
challenges. Doe v. City of Albuquerque, 

, 1123–27 (10th Cir. 2012).

[¶19] The no-set-of-circumstances standard is one we drew from federal precedent
interpreting the United States Constitution. See Dir. of Off. of State Lands & Invs., 

, 

 (quoting United States v. Salerno, 

, 

, 

 (1987) for origin of rule). In Gordon, we applied this standard
in a state constitutional challenge to a statute, but we commented:

              We adhere to this standard under stare decisis despite the fact
              that the facial/as-applied distinction has been criticized as “an
              inherently flawed and fundamentally incoherent undertaking.”
              Alex Kreit, Making Sense of Facial and As-Applied
              Challenges, 18 Wm. & Mary Bill Rts J. 657, 659 (2010). See
              also Michael C. Dorf, Facial Challenges to State and Federal
              Statutes, 

, 239–41 (1994) (contending that
              courts regularly accept challenges that would fail the “no set of
              circumstances” test). We do so even though the United States
              Supreme Court has expressed reservations about the
              supposedly bright line between facial and as-applied analysis.
              Citizens United v. Fed. Election Comm’n, 

,
              

, 

 (2010) (“[T]he
              distinction between facial and as-applied challenges is not so
              well defined that it has some automatic effect or that it must


                                              9
              always control the pleadings and disposition in every case
              involving a constitutional challenge.”).

, ¶ 12 n.10, 

 n.10; see also United States v. Streett, 

, 1168 n.18 (D. N.M. 2020) (“The Tenth Circuit and leading commentators
contend that the formulation in United States v. Salerno, 

, 

,

 (1987), is neither normatively desirable nor—more importantly for the
Court’s purposes—descriptively accurate.”); Richard H. Fallon, Jr., Fact and Fiction
About Facial Challenges, 

, 936–49 (2011) (examining empirical
evidence and concluding that the Supreme Court regularly facially invalidates laws, and
ignores the purported standard when it does).

[¶20] In rejecting the no-set-of-circumstances or Salerno standard as a valid articulation
of the standard applicable to facial challenges, the Tenth Circuit observed:

              [The no-set-of-circumstances standard] completely divorces
              review of the constitutionality of a statute from the terms of the
              statute itself, and instead improperly requires a court to engage
              in hypothetical musings about potentially valid applications of
              the statute. The Supreme Court has repeatedly entertained
              facial challenges without engaging in this hypothetical
              exercise. Instead, the Court has properly applied the
              appropriate constitutional test to the restriction at issue[.]

Doe, 

 (followed by a lengthy review of U.S. Supreme Court decisions);
see also City of Chicago v. Morales, 

, 55 n. 22, 

, 

 (1999) (plurality opinion) (“To the extent we have consistently articulated a clear
standard for facial challenges, it is not the Salerno formulation, which has never been the
decisive factor in any decision of this Court, including Salerno itself[.]”).

[¶21] We have recognized that the doctrine of stare decisis serves important values, such
as consistency, reliance, and the integrity of the judicial process, but we have also observed
that it is not an “inexorable command.” Smith v. Bd. of Cnty. Comm’rs of Park Cnty., 

, 

 (Wyo. 2013). “When precedential decisions are no longer
workable, or are poorly reasoned, we should not feel compelled to follow precedent. Stare
decisis is a policy doctrine and should not require automatic conformance to past
decisions.” Bienz v. Bd. of Cnty. Comm’rs, Cnty. of Albany, 

, ¶ 20 n.5, 

, 235 n.5 (Wyo. 2024) (quoting Brown v. City of Casper, 

, 

 (Wyo. 2011)).

[¶22] We see no value in adhering to a standard that has been criticized as a distortion of
the analysis the U.S. Supreme Court itself conducts in cases involving facial challenges; a
standard the Supreme Court itself routinely ignores, Doe, 667 F.3d at 1123–27; and a


                                             10
standard that invites an analysis based on hypothetical scenarios rather than the terms of a
statute that the facial challenge is meant to focus on. This is particularly so since we have
said that we will not blindly adhere to federal precedent when interpreting our own
constitution and instead will do so only when we find it persuasive. Fertig v. State, 

, 

 (Wyo. 2006). We therefore overrule our prior reliance
on the no-set-of-circumstances standard in evaluating facial challenges and instead adopt
the approach framed as follows by the Tenth Circuit:

              [A] facial challenge is just that—a challenge to the terms of the
              statute, not hypothetical applications. Salerno’s language thus
              is accurately understood not as setting forth a test for facial
              challenges, but rather as describing the result of a facial
              challenge in which a statute fails to satisfy the appropriate
              constitutional standard. In other words, where a statute fails the
              relevant constitutional test (such as strict scrutiny . . . or
              reasonableness review), it can no longer be constitutionally
              applied to anyone—and thus there is “no set of circumstances”
              in which the statute would be valid. The relevant constitutional
              test, however, remains the proper inquiry.

Doe, 

 (citation modified); see also Lamb’s Chapel v. Ctr. Moriches Union
Free Sch. Dist., 

, 393 n. 6, 

, 

 (1993); Ezell v.
City of Chicago, 

, 698–99 (7th Cir. 2011) ( “In a facial challenge like this one,
the claimed constitutional violation inheres in the terms of the statute, not its application. .
. . [A] successful facial attack means the statute is wholly invalid and cannot be applied to
anyone. Chicago’s law, if unconstitutional, is unconstitutional without regard to its
application—or in all its applications, as Salerno requires.”); Rothe Dev. Corp. v. Dep’t of
Defense, 

, 1337–38 (Fed. Cir. 2005) (“Salerno is of limited relevance here,
at most describing a conclusion that could result from the application of the strict scrutiny
test.”).

[¶23] Our inquiry in resolving Plaintiffs’ claims, whether they are properly characterized
as facial challenges or as-applied challenges, will be the same. We will determine the
relevant constitutional test and apply that test.

V.     Evidentiary Framework

[¶24] Evidence has a specialized role in determining the constitutionality of a statute,
especially in the context of a summary judgment proceeding. The law distinguishes
between adjudicative and legislative facts. Adjudicative facts “relate to identifiable parties
and specific situations” and are determined through an evidentiary hearing. Campbell v.
Dep’t of Fam. Servs., 

 (Wyo. 1994). Judicial decision-making, most
often, involves determination of adjudicative facts “relating to the parties and their


                                              11
particular circumstances.” Varnum v. Brien, 

 (Iowa 2009); see also
Scarlett v. Town Council, Town of Jackson, Teton Cnty., 

, 29 n. 5 (Wyo. 1969)
(adjudicative facts “are the facts that normally go to the jury in a jury case”) (quoting 2
Davis, Administrative Law Treatise, § 15.03, p. 353 (1958)). “[T]he resolution of a dispute
over [adjudicative] facts is done within the framework of a set of rules to determine the
admissibility of evidence tending to prove such facts.” Varnum, 

. Thus,
a court may grant summary judgment in a case which presents questions of adjudicative
facts only when there is no material dispute as to those facts.

[¶25] Legislative facts, on the other hand, “are ordinarily general and do not concern the
immediate parties but help the tribunal determine the content of law and of policy.”
Campbell, 

. Legislative facts are relevant to understand the lawmaking
process and the rationale used by a legislative body in enacting a statute. See Fed. R. Evid.
201 advisory committee note to Subdivision (a); see also, C. Mueller & L. Kirkpatrick, 1
Federal Evidence § 2:12 (4th ed. July 2025 update) (“legislative facts involve values and
appraisals of the nature and ways of the world, undertaken in an effort to give meaning to
law in light of important ends, in an effort at defining the meaning, reach and limits, and
application of legal rules”). “Legislative facts are relevant in deciding . . . constitutional
issues because courts must normally analyze ‘whether there exist circumstances which
constitutionally either legitimate the exercise of legislative power or substantiate the
rationality of the legislative product.’” Varnum, 

 (quoting 2 John W.
Strong, McCormick on Evidence § 328, at 370 (5th ed. 1999)). In other words, legislative
facts are useful to help the court determine whether a challenged statute passes muster
under the appropriate level of constitutional scrutiny, i.e., whether the statute serves a
legitimate government interest through rational means, or whether the statute is justified
by a compelling state interest and is narrowly tailored to meet that interest. See e.g., Armour
v. City of Indianapolis, 

, 681–84, 

, 2080–82, 

(2012)      (referencing     “the legislative facts on   which      the    classification    is
apparently based” in applying the rational basis test for constitutionality); Fisher v. Univ.
of Texas, 

, 381–88, 

, 2210–14, 

 (2016)
(discussing evidence the university presented to justify its race-based admissions program
under strict scrutiny).

[¶26] When used in deciding the constitutionality of statutes, legislative facts are also
referred to as constitutional facts. Varnum, 

. Constitutional facts are
those which “assist a court in forming a judgment on a question of constitutional law.” 

(quoting Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative
Process, 

, 403 (1942)). They include social and economic data and
may come into a case in various ways including through the evidence and submissions by
the parties. K. Davis, An Approach to Problems of Evidence in the Administrative Process,
55 Harv. L. Rev. at 403; see also Varnum, 

 (noting that constitutional
facts may be admitted through witness testimony).



                                              12
[¶27] The case before us does not present conflicts of adjudicative facts. However, the
parties offer different views of the appropriate scope of legislative facts. The State contends
the only relevant legislative facts are: 1) the history of state regulation of abortion; 2) the
history of Article 1, § 38 of the Wyoming Constitution; and 3) the circumstances
surrounding ratification of Article 1, § 38. 5 The State submitted information from the
Wyoming Secretary of State website describing the proposed amendment to add Article 1,
§ 38 to the Wyoming Constitution’s declaration of rights, and magazine, newspaper, and
website articles concerning the amendment. These documents showed there was no
discussion of abortion rights surrounding the amendment, and the articles further showed
the amendment was reported as a response to the individual health insurance mandate in
the federal Patient Protection and Affordable Care Act. The State offered this evidence to
assist the district court in interpreting the constitution and the Abortion Laws and to help
define the history, meanings, and purposes of the provisions.

[¶28] The Plaintiffs, on the other hand, offered a variety of evidence as legislative facts in
support of their interpretation of Article 1, § 38 and the Abortion Laws and their claim the
laws do not survive the strict scrutiny test. Plaintiff’s evidence included expert affidavits,
Plaintiffs’ affidavits, and excerpts from governmental reports, publications, and studies.
The affidavits from the plaintiff physicians, Rene R. Hinkle, M.D. and Giovannina
Anthony, M.D., attested to facts based on their professional education and experience, as
did Plaintiffs’ expert, Dr. Ghazaleh Kinney Moayedi. These witnesses also supported their
affidavits with citations to, and copies of, numerous studies, reports, and professional
publications, including but not limited to publications of: the American College of
Obstetricians and Gynecologists; the Wyoming Department of Health; the U.S.
Department of Health and Human Services; the World Health Organization; the National
Academies of Sciences, Engineering, and Medicine; and the Centers for Disease Control
and Prevention (CDC). Plaintiffs’ expert Michael Blonigen attested to facts based on his
many years of experience as a prosecuting attorney, including over 200 jury trials for
crimes that included sexual assault and child sexual abuse.

[¶29] While the State objected to Plaintiffs’ evidence on grounds of relevance, based on
its narrow definition of legislative facts, and moved to strike Plaintiffs’ expert witnesses
on grounds that some of the ultimate opinions were conclusions of law or outside the
experts’ field of expertise, it did not offer its own evidence to refute Plaintiffs’ evidence or
challenge its reliability. Moreover, the State has not challenged the district court’s order
denying the State’s motion to strike, other than to maintain its argument that Plaintiffs’
evidence strayed beyond permissible legislative facts.



5
  Much of this evidence also falls under the umbrella of extrinsic aids in interpreting statutory and
constitutional provisions, which we can consider when the language is ambiguous or to confirm our
interpretation of the plain language of the provisions. See Solvay Chems., Inc., 

, 

; Parker Land & Cattle Co., 

.


                                                  13
[¶30] We disagree with the State’s narrow definition of legislative facts. The United States
Supreme Court has repeatedly recognized a much broader use of legislative facts in
determining whether statutes contravene constitutional provisions. See e.g., Reno v. Am.
C.L. Union, 

, 849 n.2, 878, 

, 2334 n.2, 2348, (1997) (in a
challenge to a law restricting sexual content on the internet, the Court referred to the trial
court’s “410 findings, including 356 paragraphs of the parties’ stipulation and 54 findings
based on evidence received in open court” and the testimony of the government’s expert
witness in analyzing the law’s impact); Planned Parenthood of Se. Penn. v. Casey, 

, 888–894, 

, 2826–2829, 

 (1992) overruled on
other grounds by Dobbs, 

, 

 (considering trial court’s findings
of fact based on testimony of numerous expert witnesses as well as multiple studies to
conclude that spousal notification restriction created a substantial obstacle to abortion
access); Brown v. Bd. of Educ., 

, 495 n.11, 

, 692 n.11, 

 (1954) (relying on studies of the psychological effects of racial segregation to reach
holding that segregation violates the Fourteenth Amendment); Minn. v. Clover Leaf
Creamery Co., 

, 

, 

 (1981) (“[P]arties
challenging legislation under the Equal Protection Clause may introduce evidence
supporting their claim that it is irrational.”); see also Varnum, 

 (finding
error in trial court’s exclusion of testimony and holding “we review all of the material
tendered by the parties in this case to assist us in our review of the constitutionality of the
civil marriage statute”); State ex rel. T.B. v. CPC Fairfax Hosp., 

 (Wash.
1996) (en banc) (declining to strike scholarly articles and excerpts and noting “we do not
understand nor do we consider these authorities to establish the specific facts of this case
but rather ‘legislative facts’ which the court may consider when determining the
constitutionality or interpretation of a statute”).

[¶31] The State urges this Court to apply an unduly narrow definition of legislative facts
that is unsupported by authority and would essentially force us to decide this case with
blinders on. 6 Based on the authority discussed above, we decline to limit our consideration

6
  In its reply brief, the State contends that application of the strict scrutiny test to restriction of a fundamental
right is a question of law, citing State v. Hardesty, 

 (Ariz. 2009); Lomack v. City of
Newark, 

 (3d Cir. 2006); and Citizens Concerned About Our Child v. Sch. Bd. of Broward
Cnty., Fla., 

 (11th Cir. 1999). These cases do not support the State’s assertion that
evidence is irrelevant to application of the test. While the determination of whether the strict scrutiny test
applies and if so, whether the test has been satisfied, is a question of law, that does not mean the facts are
irrelevant to those determinations. See Operation Save Am. v. City of Jackson, 

, 

, 461–62 (Wyo. 2012) (finding no evidence in record to support town’s asserted compelling
government interests); Hodes & Nauser, MDs, P.A. v. Kobach, 

 (Kan. 2024) (Hodes &
Nauser II) (“A robust argument from the government that its action or legislation is precisely tailored to
furthering its interests will rely on actual evidence of such precision.”); Doe, 

 (“The City
provided nothing in the record that could satisfy its obligation of proving that the ban is narrowly tailored.”).
That those determinations pose questions of law means only that a court (rather than the jury) makes the
determination and that our review is de novo, not that the trial or appellate court should disregard relevant
evidence.


                                                        14
to the materials proffered by the State. To the extent they are reliable and relevant to the
specific issues before us, we will consider the materials and evidence of both parties.

                                       DISCUSSION

[¶32] To reiterate, Article 1, § 38 of the Wyoming Constitution provides:

              (a) Each competent adult shall have the right to make his or her
              own health care decisions. The parent, guardian or legal
              representative of any other natural person shall have the right
              to make health care decisions for that person.

              (b) Any person may pay, and a health care provider may
              accept, direct payment for health care without imposition of
              penalties or fines for doing so.

              (c) 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.

              (d) The state of Wyoming shall act to preserve these rights
              from undue governmental infringement.

[¶33] In determining the constitutionality of the Abortion Laws under this provision, we
first address the State’s arguments that an abortion is not health care and even if it were
considered health care, the decision to have an abortion is not a woman’s own health care
decision because it affects the separate life of the fetus. We then turn to whether the right
is fundamental and the question of what level of scrutiny the laws must pass. Lastly, we
analyze the laws under the applicable level of scrutiny.

I.     The decision whether to terminate or continue a pregnancy is a health care
       decision under Article 1, § 38.

[¶34] At the outset, and before turning to our interpretation of Article 1, § 38, we reject the
State’s argument that we should defer to the legislature’s finding in the Life Act that
“abortion as defined in this act is not health care. Instead of being health care, abortion is
the intentional termination of the life of an unborn baby.” 

-
121(a)(iv) (2025). As the Tenth Circuit stated in Anaya v. Crossroads Managed Care Sys.,
Inc., 

, 591 n.2 (10th Cir. 1999), a “statute does not and cannot define the scope
of constitutional rights.” See also Powell v. Hocker, 

 (Tex. Crim. App.
2017) (rejecting argument that a constitutional term could be statutorily defined on ground
that such a term means what a court interprets it to mean not “what the [l]egislature may


                                              15
declare it to mean, as a matter of statutory definition”). Thus, the legislature’s findings on
the definition of health care cannot and do not define the scope of the right created by
Article 1, § 38. As we stated in our earlier discussion, it is the exclusive province of this
Court to interpret the Wyoming Constitution. Conrad, 

, 

(“It is emphatically the province and duty of the judicial department to say what the law
is.” (citation omitted)).

[¶35] For this same reason, we reject the State’s argument that because the legislature
regulates medical care in Wyoming, an individual’s right to make health care decisions
depends on the legislature first saying the medical service in question is permissible.
Certainly, the legislature enacts laws that regulate medical care in the state, but when such
a law restricts an individual’s constitutional right to make a health care decision, this Court
must interpret the constitution and determine whether the restriction is permissible. See
State v. Lancaster, 

 (Idaho 2022) (to allow statutes to determine
constitutional content would elevate them to the level of the constitution); City of Fernley
v. State Dep’t of Tax’n, 

, 706 (Nev. 2016) (“Statutes are construed to accord
with constitutions, not vice versa.”). Were we to hold otherwise, the Article 1, § 38 right
to make health care decisions would be illusory.

[¶36] We turn then to the scope of Article 1, § 38, and specifically whether the phrase
“health care” includes abortion care. To understand the meaning of terms used in a
constitutional provision, we look to their plain meaning at the time the provision was
ratified. Gordon, 

, ¶ 31, 

. In 2012, the phrase “health care”
was defined as “efforts made to maintain or restore health especially by trained and licensed
professionals.” Health Care, Merriam-Webster,                    https:/ /web.archive.org/
web/20120121070632/https://www.merriam-webster.com/dictionary/health%20care (last
visited Jan. 5, 2026). The term “health” was defined as “the condition of being sound in
body, mind, or spirit; [especially]: freedom from physical disease or pain.” Health,
Merriam-Webster, https://web.archive.org/ web/20120112114508/https://www.merriam-
webster.com /dictionary /health (last visited Jan. 5, 2026). And the term “decision” meant
“a determination arrived at after consideration.” Decision, Merriam-Webster, https://
web.archive.org/web/20120110113101/https://www.merriam-webster. com/ dictionary/
decision (last visited Jan. 5, 2026).


[¶37] The State agrees with these definitions, but it focuses on the example of “freedom
from physical disease or pain,” contained within the definition of the term “health.” Based
on that single example, the State urges a narrow definition of “health care decisions,” which
it contends would include only a “determination regarding the procurement of medical
services to maintain the physical condition of the individual or to restore her condition
from physical disease or pain.” It then argues that to constitute health care an abortion
“must be intended to maintain the physical condition of the pregnant woman or to restore
her condition from physical disease or pain.” The State’s path to this restrictive meaning is


                                              16
to ignore most of the definition of health on which it relies—“the condition of being sound
in body, mind, or spirit”—and the definition of “abortion” at § 35-6-122(a)(i) as a medical
procedure. This approach finds no support in our rules of constitutional interpretation, and
notably, the State points to no state or federal precedent suggesting that legal abortion care
is not health care.

[¶38] The record shows that abortions are medical procedures performed or administered
by qualified medical professionals. The Plaintiffs presented evidence showing pregnancy
can cause and exacerbate certain physical and mental health conditions. Drs. Hinkle and
Anthony, who both practice obstetrics and gynecology in Wyoming, presented affidavits
as evidence in this case. They stated pregnancy can lead to the development of new and
serious health conditions such as hyperemesis gravidarum (excessive nausea and
vomiting), preeclampsia, deep vein thrombosis, and gestational diabetes. Pregnancy can
also exacerbate preexisting conditions such as diabetes, kidney disease, hypertension and
other cardiac diseases, obesity, asthma, autoimmune disorders, and other pulmonary
diseases. In fact, the physical complications of pregnancy have been a leading cause of
death in reproductive age women.

[¶39] Furthermore, the record shows pregnancy can induce or exacerbate mental health
conditions. Citing to information from the CDC, Dr. Moayedi noted in her affidavit that
mental health conditions are the leading cause of maternal death in the United States with
almost one-quarter of pregnancy-related deaths directly linked to mental health conditions.
Labor and childbirth also present risks that can become life threatening. Citing data from
the National Academies of Science, Engineering, and Medicine, Dr. Anthony pointed out
that a woman’s risk of death associated with pregnancy and childbirth is more than twelve
times higher than the risk of death associated with legal abortion.

[¶40] Thus, pregnancy comes with physical and emotional challenges and risks that affect
“the condition of being sound in body, mind, or spirit.” Health 

As a medical means to address the adverse effects of pregnancy and “restore” a woman to
a “condition of being sound in body, mind, or spirit; [especially]: freedom from physical
disease or pain,” abortion is “health care,” in accordance with the plain meaning of that
phrase in Article 1, § 38. Health 

 We, therefore, conclude that
the phrase “health care” includes abortion care and that the decision whether to terminate
or continue a pregnancy is a “health care decision.” Wyo. Const. art. 1, § 38(a).

[¶41] We are not persuaded otherwise by the State’s citation of materials showing the
political climate surrounding the adoption of Article 1, § 38. The State points out the
amendment was put to the voters in response to the Affordable Care Act, with no discussion
of abortion care. The record supports this assertion, and we do not disagree. However, that
does not change the fact that the plain language of the amendment the voters ratified went
beyond addressing concerns with the Affordable Care Act and granted “[e]ach competent
adult” “the right to make his or her own health care decisions.” There is nothing in the plain


                                             17
language of the amendment which indicates abortion is not health care or otherwise limits
access to abortion care. The plain meaning of the provision controls, and we are not at
liberty to read restrictions into that language. 7 Gordon, 

, ¶ 30, 

 (“It must be presumed that in case of a constitution the people have intended whatever
has been plainly expressed. Courts are not at liberty to depart from that meaning which is
plainly declared.”); Delcon Partners LLC v. Wyo. Dep’t of Revenue, 

,

, 685 (Wyo. 2019) (court may not add or change words in the guise of
interpretation).

II.     The decision whether to terminate or continue a pregnancy is a woman’s own
        health care decision.

[¶42] The State contends that even if abortion care is considered health care, the decision
to have an abortion is not a woman’s “own” health care decision because it ends the
separate life of the fetus.

[¶43] The record shows a pregnant woman’s decision to continue or terminate a pregnancy
is influenced by many considerations, all of them personal to the pregnant woman and her
individual circumstances. These considerations may include physical and mental health,
finances, educational and career plans, personal relationships with her existing children
and/or partner, and religious beliefs. Although a woman’s decision to have an abortion
ends the fetal life, the decision is, nevertheless, one she makes concerning her own health
care.

[¶44] The State’s argument essentially conflates two questions that must be kept separate:
1) whether an abortion is an individual health care decision that a woman makes for herself
based on her own beliefs and circumstances; and 2) whether and to what extent that
decision may be restricted by the State given it ends the fetal life. Because we have
interpreted the phrase “health care” to include abortion care, the answer to the first question
must be that a woman making the decision whether to have an abortion is making her own
health care decision. The answer to the second question is the central issue in this appeal,
which we address infra, at section V.

7
  Our task is to interpret Article 1, § 38 according to its plain terms. If as the State contends, the people did
not intend to include abortion care among the health care decisions this constitutional amendment protects,
the solution is not for this Court to add language to the constitution. It is beyond our power to do that. The
Legislature, however, could put the question to the people of Wyoming in the form of a constitutional
amendment that clearly states what it seeks to accomplish. See Planned Parenthood S. Atl. v. State, 

, 781 (S.C. 2023) (“The Tennessee Supreme Court interpreted the language and history of the
right to privacy and found it encompassed the abortion decision, and the citizens of Tennessee responded
by voting to amend their constitution’s text.”); Planned Parenthood of Mont. v. State by and through
Knudsen, 

, 71–72 (Mont. 2025) (noting the Montana Constitution had been amended to
expressly provide “a right to make and carry out decisions about one’s own pregnancy, including the right
to abortion” (quoting Mont. Const. art. II, § 36)).



                                                      18
III.   An individual’s right to make health care decisions under Article 1, § 38 is a
       fundamental right.

[¶45] As we address whether Article 1, § 38 confers a fundamental right, we must
emphasize that the right this provision confers is not the narrow right to make a decision
concerning abortion care. The right it confers is the right of every competent adult to make
his or her own health care decisions, and thus the question we are answering is whether the
right to make one’s own health care decisions is a fundamental right.

[¶46] In Mills, 

, we said “[a] fundamental right is a right which the
constitution explicitly or implicitly guarantees.” See also San Antonio Indep. Sch. Dist. v.
Rodriguez, 

, 

, 

 (1973) (the key to
determining whether a right is fundamental is whether it is “explicitly or implicitly
guaranteed by the Constitution”); In re Honeycutt, 

 (Wyo. 1995) (“A
fundamental right is a right which is guaranteed explicitly or implicitly by the
constitution.”); Armstrong v. State, 

 (Mont. 1999) (“[S]ince the right of
privacy is explicit in the Declaration of Rights of Montana’s Constitution, it is a
fundamental right.”). Article 1, § 38 explicitly guarantees the right to make one’s own
health care decisions, which, under cases like Mills, signifies the right is fundamental.

[¶47] Wyoming’s explicit protection of the right to make personal health decisions in
Article 1, § 38 appears to be unique. Other states have recognized a fundamental right to
make health care decisions under less explicit constitutional provisions. For example,
Montana’s constitution contains an express right to privacy, which its supreme court has
interpreted as guaranteeing “each individual the [fundamental] right to make medical
judgments affecting her or his bodily integrity and health, in partnership with a chosen
health care provider free from governmental interference.” Planned Parenthood of Mont.
v. State, 

, 165 (Mont. 2024) (citing Armstrong, 

); see also,
Rasmussen v. Fleming, 

 (Ariz. 1987) (en banc) (holding express right to
privacy in state constitution included the fundamental right to make medical decisions); In
re Guardianship of Barry, 

, 369–70 (Fla. Dist. Ct. App. 1984) (express right
of privacy in state constitution encompassed decisions affecting medical treatment). When
interpreting their respective state constitution’s right to privacy provisions, these courts
have found those express provisions to contain an implied fundamental right to make
medical or health care decisions. For example, in Armstrong, 989 P.2d at 371–76, the
Montana Supreme Court reviewed the history of its state constitution’s right to privacy
provision to conclude the convention delegates intended it to encompass protection of
Montana citizens’ right to make their own medical decisions. Because Article 1, § 38
explicitly guarantees the right to make one’s own health care decisions and the Wyoming
Constitution does not contain an express right to privacy provision, a substantive due
process analysis is not necessary here. See e.g., Vaughn v. State, 

, ¶¶ 26–29,

, 1095–96 (Wyo. 2017) (refusing to recognize, under substantive due


                                            19
process, a fundamental right protecting juveniles convicted of certain crimes from having
to register as sex offenders); DS v. Dep’t of Pub. Assistance & Soc. Servs., 

,
918–19 (Wyo. 1980) (recognizing the right to familial association is fundamental under
substantive due process).

[¶48] Given our precedent clearly states a right expressly granted in the constitution is
fundamental and Article 1, § 38 explicitly grants Wyoming citizens the right to make
personal health care decisions, we conclude that right is indeed a fundamental one. 8

IV.     A law restricting a person’s fundamental right to make health care decisions is
        subject to strict scrutiny.

[¶49] Our next task is to determine how to test the constitutionality of the Abortion Laws’
restrictions on the fundamental right to make health care decisions. As we explain below,
precedent directs us to consider the nature of the right granted in Article 1, § 38 and the
express language of the constitutional provision in determining the appropriate test for
constitutionality.

[¶50] As an attribute of its sovereignty, the legislature is authorized to use its police power
“to enact laws for the health, safety, comfort, moral and general welfare of the people[.]”
State v. Langley, 

 (Wyo. 1938). However, the legislature’s police powers
are limited by individual constitutional rights. See Bd. of Cnty. Comm’nrs of Teton Cnty.
v. Crow, 

, 

 (Wyo. 2003) (federal and state constitutions
impose limits on governmental exercise of police powers); Michael v. Hertzler, 

 (Wyo. 1995) (recognizing the state has power to adopt laws for the well-being
of its citizens but it is limited by the constitution). Under separation of powers principles,
the judiciary is “the final authority on constitutional questions” and has “the constitutional
duty to declare unconstitutional [statutes] which transgress[] the state constitution.”
Campbell Cnty. Sch. Dist. v. State, 

 (Wyo. 1995) (citing Washakie,

; Bulova Watch Co. v. Zale Jewelry Co. of Cheyenne, 

(Wyo. 1962)).

[¶51] While exercising this duty, courts are tasked with deciding, as a matter of law, the
test to apply when the constitutionality of a statute is challenged. Hardison, 

, 507 P.3d at 39 (courts determine the constitutionality of statutes as a matter of law);

8
  It was no accident that Article 1, § 38 was placed in the Declaration of Rights. It was initially introduced
as a senate joint resolution to create a new section 24 in Article 7 of the constitution, the article governing
the promotion of health and morals. Senator John Schiffer offered an amendment that was approved and
moved the amendment to Article 1, the Declaration of Rights. Senator Schiffer explained the reason for his
proposed amendment, which was ultimately approved. He said, “Article 1 is where we empower the people,
where we say these are your rights. There’s, I think, 37 of them. I’m suggest—I’m suggesting we need a
38. We’re saying, people, this belongs to you, and—and—and you can cherish it, you can use it, you can
do what you wish with it, but we’re going to give it to you.”


                                                     20
Gordon, 

, ¶ 55, 

 (under separation of powers principles, courts
have authority to determine the constitutional validity of statutes) (citing Wyo. Const. art.
2, § 1 (the powers of the government are divided between the three branches)). In general,
we choose between two levels of review—the rational relationship (or rational basis) test
and the strict scrutiny test—based upon the nature of the constitutional right. 9 The rational
relationship or rational basis test is used when a statute “only affects ordinary interests in
the economic and social welfare area[.]” Hageman v. Goshen Cnty. Sch. Dist. No. 1, 

, 

 (Wyo. 2011) (quoting Ellett v. State, 

(Wyo. 1994)) (other citation omitted); see also Cheyenne Airport Bd. v. Rogers, 

 (Wyo. 1985) (“When the legislative enactment lies in the economic and social
welfare area, and when there are no suspect criteria or fundamental interests involved, the
court will, in testing the enactment, inquire only as to whether the regulation is of debatable
reasonableness.”). Under the rational relationship test, the law will be sustained if it is
rationally related to a legitimate state objective. White, 

.

[¶52] In contrast, strict scrutiny is often applied when a statute impacts a fundamental
constitutional right. Martin, 

, 503 P.3d at 73. Applying the strict scrutiny
test, the Court closely analyzes the statute “to determine if it is necessary to achieve a
compelling state interest. In addition, the burden is on the State to demonstrate that it could
not use a less onerous alternative to achieve its objective.” Id. (quoting Mills, 

). Stated otherwise, the State bears the burden of proving the statute is necessary to
further a “compelling government interest and that the interest cannot be served in a less
restrictive manner.” Operation Save Am. v. City of Jackson, 

, 

 (Wyo. 2012); see also Hardison, 

, 507 P.3d at 39 (when a
fundamental constitutional right is involved, “[t]he strong presumptions in favor of
constitutionality are inverted,” and the burden shifts to the State to “justify the validity of
the statute[.]” (quoting Reiter, 

, 

)).

[¶53] In Mills, 837 P.2d at 52–54, we used the strict scrutiny test to determine whether a
worker’s compensation statute that made co-employees immune from suit by an injured
employee was constitutional. Strict scrutiny was appropriate because Article 1, § 8
established a fundamental right by guaranteeing “[a]ll courts shall be open and every
person for an injury done to person, reputation or property shall have justice administered
without sale, denial or delay.” Id. at 53–54. In Campbell Cnty. Sch. Dist., 907 P.2d at 1266–
67, we stated the Wyoming constitution guaranteed students a fundamental right to an
“equal opportunity to a proper public education[.]” Any statute which interfered with the
fundamental right was not “entitled to the usual presumption of validity,” and the State was

9
 “An intermediate level of scrutiny applies to a small number of classifications, including those based upon
gender. Under intermediate scrutiny, the classification must be substantially related to an important
governmental interest.” Martin, 

, ¶ 14 n.4, 503 P.3d at 73 n.4 (citing Craig v. Boren, 

, 197–98, 

, 

 (1976)) (other citations omitted).




                                                    21
required to show “its interference with that right [was] forced by some compelling state
interest and its interference [was] the least onerous means of accomplishing that objective.”

 (citing Miller v. City of Laramie, 

 (Wyo. 1994)).

[¶54] There are instances, however, when we do not apply strict scrutiny to statutes which
purportedly infringe on fundamental constitutional rights because the express language of
the constitution suggests a more appropriate test. For example, Wyoming Constitution
Article 1, § 4 explicitly protects citizens’ right to be free from unreasonable searches and
seizures. In Almada v. State, 

, 308–10 (Wyo. 1999), we tested the
constitutionality, under Article 1, § 4, of a statute which allowed wiretapping without a
warrant in certain circumstances. The test we applied considered whether the statute
violated a citizen’s reasonable expectation of privacy and, if so, whether the State
demonstrated the violation was unreasonable. Id. at 309. Our inquiry into the
reasonableness of the statute was based upon the language of Article 1, § 4, which only
prohibits unreasonable searches and seizures. Id.; see also Owens v. State, 

, 

 (Wyo. 2012) (“When a search is conducted without a warrant,
the State has the burden to show that the search was reasonable.”).

[¶55] In White, 784 P.2d at 1314–22, we considered a constitutional challenge under
Article 1, § 8, to the Wyoming Governmental Claims Act’s restriction on suits against the
Wyoming Highway Department. Like in our later decision in Mills, we recognized Article
1, § 8 protected individuals’ right to access the court system but noted the second sentence
of the constitutional provision expressly allowed suits to be “brought against the state in
such manner and in such courts as the legislature may by law direct.” White, 784 P.2d at
1316–17 (italics omitted). We concluded the second sentence established “a direct
limitation on [the] right of the people, as declared in the first sentence of Article 1, § 8.”
Id. Thus, “legislative decisions concerning the retention or abrogation of governmental
immunity to suit are only subject to” a reasonableness standard, not “a heightened level of
scrutiny.” Id.

[¶56] Our precedent, therefore, teaches that courts determine the level of constitutional
scrutiny by considering the nature of the right guaranteed in the constitution and the express
language of the constitutional provision. 10 Applying these principles to Article 1, § 38, we
start with our earlier conclusion that the provision expressly grants a fundamental right to
citizens to make their own health care decisions. Cases like Martin, Mills, and Campbell


10
  In this respect, we agree with the sentiment expressed in Justice Fenn’s special concurrence and Justice
Gray’s dissent that it is necessary to review the constitutional language in determining the test for
constitutionality. However, the choice of test is also influenced by the fact the right to make health care
decisions is fundamental, a conclusion which is unanimous among the members of the Court. See J. Fenn,
specially concurring op., ¶ 114; J. Gray, dissenting op., ¶ 134, and precedent recognizing that statutes
which impact express fundamental rights are often subject to strict scrutiny. See e.g., Mills, 

;
Campbell Cnty. Sch. Dist., 907 P.2d at 1266–67.


                                                     22
County, supra, indicate the Abortion Laws, which restrict the fundamental right to make
health care decisions, should be subject to strict scrutiny.

[¶57] Next, we consider whether the specific language of the constitutional provision
comports with that exacting analysis or suggests otherwise. For the reasons explained
below, we conclude it supports our application of the strict scrutiny standard.

[¶58] Article 1, § 38(a) grants each competent adult “the right to make his or her own
health care decisions.” Subsection (c) 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 or to accomplish the other purposes set forth in the Wyoming
Constitution.” Subsection (d) requires the State of Wyoming to preserve the rights
guaranteed in Article 1, § 38 “from undue governmental infringement.”

[¶59] When Article 1, § 38 was adopted in 2012 the plain meaning of “reasonable” in
subsection (c) was understood as “being in accordance with reason,” “moderate, fair” and
“not extreme or excessive.” Reasonable, Merriam-Webster, https:// web.archive.org/
web/20120117221139/https://www.merriam-webster.com/ dictionary/reasonable (last
visited Jan. 5, 2026). “Necessary” meant “absolutely needed: required.” Necessary,
Merriam-Webster, https://web.archive.org/web/20120119063244/https://www.merriam-
webster.com/dictionary/necessary (last visited Jan. 5, 2026). Because the terms
“reasonable” and “necessary” are connected by “and,” both conditions must be satisfied.
Prickett v. Prickett, 

, 

 (Wyo. 2007) (the word “and”
is interpreted in statutes as conjunctive) (citing Clark v. State ex rel. Wyo. Workers’ Safety
and Comp. Div., 

 (Wyo. 1998) and Webster’s New Collegiate Dictionary
43 (1977)). Therefore, to justify infringement on the fundamental right under Article 1,
§ 38, any regulation restricting a woman’s right to make her own health care decisions
(including abortion decisions) must be “moderate, fair,” “not extreme or excessive,” and
“absolutely needed” “to protect the health and general welfare of the people or to
accomplish the other purposes set forth in the Wyoming Constitution.” Wyo. Const. art. 1,
§ 38(c). It is not enough for a restriction on a woman’s fundamental right to make health
care decisions to be reasonable (moderate, fair, not extreme or excessive)—it also must be
necessary (absolutely needed). To fail to give effect to both requirements would be to
disregard the plain language of Article 1, § 38 and neuter any meaningful opportunity to
protect that fundamental right.


[¶60] Subsection (d) of Article 1, § 38 emphasizes the governmental limitation on
restricting the constitutional right to make personal health care decisions by requiring the
State (which includes the Court) to protect the right against “undue governmental




                                             23
infringement.” 11 In 2012 “undue” meant “excessive.” Undue Merriam-Webster, http:// web
.archive.org/web/20120125174602/ https://www.merriam-webster.com/ dictionary/undue
(last visited Jan. 5, 2026)

[¶61] These constitutional terms are easily harmonized with the strict scrutiny standard.
Under strict scrutiny, the State must first show the statutory restriction on a woman’s
fundamental right to make her own health care decisions is necessary to achieve a
compelling state interest. This comports with the language of subsection (c), which requires
the restriction to be necessary/absolutely needed to protect the health and welfare of
Wyoming citizens. The second part of the strict scrutiny test requires the State to show the
restriction provides the least onerous/restrictive means of furthering the compelling interest
or, in other words, the restriction is narrowly tailored to achieve the interest. Subsection
(c)’s requirements that the regulation be reasonable (not extreme or excessive) and
necessary (absolutely needed) and subsection (d)’s requirement that the State’s action not
unduly (excessively) infringe on the constitutional right to make health care decisions fit
seamlessly into the second element of the strict scrutiny test. The statutory means of
furthering the compelling state interest must be the least restrictive or onerous, i.e., may
not unduly/excessively infringe, on the fundamental right. Subsection (d) also clearly
places the burden on the State to show any statutory restriction does not unduly interfere
with the fundamental right to make health care decisions.

[¶62] Nevertheless, the State argues Article 1, § 38(c) departs from traditional
constitutional standards. It claims subsection (c) impliedly abrogated our long-standing
application of the strict scrutiny standard to fundamental rights when it specified “[t]he
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.” No part of Article 1, § 38 expresses
an intention to abrogate our long-standing means for testing the constitutionality of statutes
or to disallow use of the strict scrutiny standard to protect the fundamental right granted
therein. This is particularly poignant given the legislature knew, when proposing the
language of Article 1, § 38 to the people: 1) it was creating a new constitutional right, 2)
separation of powers principles assign courts the duty to determine the applicable standard
to test the constitutionality of statutes, 3) courts routinely apply strict scrutiny to statutes
restricting fundamental rights, and 4) the plain language of Article 1, § 38, including the
terms “necessary” and “undue governmental infringement,” would signal a heightened
level of scrutiny. See e.g., Gordon, 

, ¶ 55, 

 (under separation

11
   We align fully with Paragraph 114, footnote 17 of Justice Fenn’s special concurrence. As the special
concurrence aptly recognizes, subsection (d) clearly requires all three branches of Wyoming government
to protect against any undue infringement on the right guaranteed in Article 1, § 38. Moreover, it places the
burden squarely on the State (executive branch) to justify any such infringement. Justice Gray’s dissent
fails to recognize the State’s express responsibility to establish the reasonableness and necessity of any
restriction on the right or even the importance of the Court making the foundational decision of which party
bears the burden in a constitutional challenge. See J. Gray, dissenting op., ¶ 142, n.19.


                                                    24
of powers principles, courts have authority to determine the constitutional validity of
statutes); Article 2, § 1 (the powers of the government are divided between the three
branches); Campbell Cnty. Sch. Dist. v. State, 

, 

 (Wyo.
2008) (strict scrutiny applied to statutes affecting fundamental right to education); Mills,

 (strict scrutiny applied to statutes infringing on fundamental right to access
to courts); DiFelici v. City of Lander, 

, ¶ 44, 

 (Wyo. 2013)
(“We presume the legislature to act with full knowledge of the law[.]”). 12

[¶63] Although the State asserts at one point in its brief that Article 1, § 38(c) also
abrogated the rational basis test, it subsequently embraces that test, stating the requirement
that the statute be rationally related to a legitimate state objective is the “functional
equivalent[]” of the “reasonable and necessary” test in Article 1, § 38(c). In accordance
with limited review under the rational basis test, the State urges us to defer to the
legislature’s determination of what restrictions are reasonable and necessary.

[¶64] There are several problems with the State’s argument that the rational basis standard
applies. Initially, it relies upon the conclusion that the right to make health care decisions
in Article 1, § 38 is an ordinary right. When ordinary rights are implicated, the legislature
has discretion in exercising its police power and statutes passed under such authority are

12
   As the State and Justices Fenn and Gray point out, medical and health care is highly regulated in
Wyoming, which means there are many statutes subject to Article 1, § 38’s protection of an individual’s
right to make his or her own health care decisions. J. Fenn, specially concurring op. ¶¶ 118–20; J. Gray,
dissenting op., ¶ 144 n.21. In fact, much of Title 35 of the Wyoming Statutes is devoted to laws pertaining
to health care, including abortion. However, speculating whether other health care laws might be on
“constitutional life support” when determining the constitutional test for reviewing whether any particular
statute might violate Article. 1, § 38 is entirely inconsistent with this Court’s precedent. J. Gray, dissenting
op., ¶ 144, n.21.

There is no authority indicating the extent to which a new constitutional right might impact existing statutes
is relevant in determining the nature of that right or the level of scrutiny applied to any statute infringing
on the right. Considering the possible scope of constitutional challenges in determining how those
challenges will be addressed, would undermine the constitutional protection. While an increase in litigation
on the constitutionality of health care statutes may be an unintended consequence of the adoption of Article
1, § 38, that possibility does not change the nature of the right created in the provision. Under separation of
powers principles, we do not adjust the level of constitutional scrutiny for a statute impacting a fundamental
right simply because a heightened level of scrutiny could result in increased or more challenging litigation.
This is not an absurd result; rather, it is a disciplined application of long-standing constitutional law.

It should come as no surprise that one of the consequences of amending the constitution to create a new
individual right will be additional legal challenges. This is a reason amendment of the constitution should
be pursued with caution and sufficient forethought. “[I]t is almost universally true that the procedures
instituted for the amendment of constitutions have purposely been made cumbersome, in order that the
organic law may not readily be remolded to fit situations and sentiments that are relatively transitory and
fleeting.” Geringer v. Bebout, 

 (Wyo. 2000) (citing 16 Am.Jur.2d, Constitutional Law §
22 (1998)). Regardless, the 2012 amendment to the constitution is now enshrined in Article 1, § 38, and the
Court has the duty to protect that right as any other provision of the constitution.


                                                      25
subject to the more limited rational basis judicial review. Greenwalt v. Ram Restaurant
Corp., 

, 

, 729–31 (Wyo. 2003) (discussing rational basis
review). However, as we have already stated, Article 1, § 38 grants a fundamental right,
not an ordinary right.

[¶65] The State’s argument in favor of rational basis review also does not give effect to the
requirement in Article 1, § 38(c) that any restriction on the right to make health care
decisions must be “necessary;” i.e., is absolutely needed. Under rational basis review, the
statute is constitutional as long as it is “rationally related to a legitimate governmental
interest.” Martin, 

, 503 P.3d at 78. We rephrased the rational basis test
in Martin as requiring the challenged law be “‘rationally related to the achievement of an
appropriate legislative purpose.’” 

, 503 P.3d at 78 (quoting Greenwalt,

, 

) (emphasis added). The search for an appropriate or
legitimate governmental interest is much different from the requirement in subsection (c)
that the restriction be both reasonable and necessary/absolutely needed. Finally, the rational
basis test does not comply with Article 1, § 38(d)’s requirement that the State bears the
burden of protecting the right against undue infringement. To the contrary, the party
challenging a statute under the rational basis test has the burden of proving the statute is
unconstitutional beyond a reasonable doubt. Martin, 

, 503 P.3d at 78;
Greenwalt, 

, 

.

[¶66] The State cites several cases in support of its arguments that the rational basis test
should apply to the Abortion Laws and the courts should defer to the legislature’s decisions
on how to regulate abortion—Zancanelli v. Central Coal & Coke Co., 

, 

 (Wyo. 1918), Harris v. McRae, 

, 

, 

(1980), Doe v. Burk, 

 (Wyo. 1973), and Cheaney v. State, 

(Ind. 1972). None of these cases establish the Court is required to apply the rational basis
standard when statutes impact a fundamental constitutional right or that we should simply
defer to the legislature when it passes laws regulating a fundamental constitutional right.
Nor do they provide any insight into the meaning of “necessary” or “undue governmental
infringement” as used in Article 1, § 38(c) & (d).

[¶67] The State cites Zancanelli for its statements that the legislative branch has discretion
to regulate matters of general public importance and statutes passed under that authority
should be tested for reasonableness under the rational basis standard. We agree with those
general principles because Zancanelli addressed ordinary rights; however, they do not
apply in determining the constitutional test for statutes that impact a fundamental right like
we have in this case. Zancanelli, 173 P. at 984–85 (the legislature reasonably used its police
powers to enact workers’ compensation statutes that did not impact any fundamental
constitutional right).

[¶68] The State directs us to Doe, 

, Harris, 

, and Cheaney, 

, as authority for its claim the Court should defer to the legislature’s decisions


                                             26
on abortion. Each of these cases is distinguishable from the case at bar. The State points
out we said in Doe that regulation of abortion in Wyoming “is solely a matter for the
legislature . . . .” 

. However, the State ignores the rest of the sentence, which
said the legislature “must, of course, give heed to the pronouncements of the United States
Supreme Court, particularly the summary appearing in Roe v. Wade[.]” 

 (citing Roe v.
Wade, 

, 

, 

 (1973), overruled by Dobbs, 

, 

). Currently, we review the legislature’s right to regulate abortion
through the lens of the fundamental right to make personal health care decisions guaranteed
in Article 1, § 38.

[¶69] Harris, 448 U.S. at 312–18, 100 S.Ct. at 2685–89, is inapposite because the statutes
at issue (the Hyde Amendment) did not impact a fundamental right. The United States
Supreme Court ruled the Hyde Amendment, which prohibited federal funding of abortions,
did not restrict the fundamental right to obtain an abortion as recognized in Roe v. Wade,
and there was no corresponding right to governmental financing for the procedure. 448
U.S. at 312–18, 100 S.Ct. at 2685–89. The Court emphasized that, because the amendment
did not affect a protected constitutional right, the independent appraisal of competing
interests was entrusted to the legislature, not the courts. Id. at 326. In the absence of a
fundamental right, the Supreme Court simply required the amendment to bear a rational
relationship to a legitimate governmental interest. Id.

[¶70] Cheaney, too, is unpersuasive. In that case, the Indiana Supreme Court considered
the constitutionality of a statute regulating abortion. Cheaney, 

. The court
recognized women had a fundamental right to privacy implied in the United States
Constitution, indicated the strict scrutiny test applied, and concluded the state had a
compelling interest in protecting unborn children. 

 at 267–70. However, it did not
appropriately apply the strict scrutiny test because, instead of determining if the statutes
were narrowly tailored to advance the compelling interest, the court ruled the legislature
had the right to balance the interests of unborn children and pregnant women without
oversight by the judiciary. 

.

[¶71] None of the authorities cited by the State support conclusions that Article 1, § 38(c)
abrogated the strict scrutiny test or that the rational basis test applies when a fundamental
right is at issue. They also do not convince us to abdicate our constitutional authority and
simply defer to the legislature’s determinations that the Abortion Laws are reasonable and
necessary and do not unduly infringe upon the constitutional right.

[¶72] Under our long-standing precedent, we consider both the nature of the constitutional
right and the plain language of the constitutional provision to determine the correct
standard for reviewing the constitutionality of Article 1, § 38. Given Article 1, § 38(a)
confers a fundamental right and the plain language of § 38(c) & (d) embodies strict scrutiny
principles, we will apply that test to determine whether the Abortion Laws unduly infringe
on women’s fundamental right to make health care decisions. Applying strict scrutiny, the


                                              27
Abortion Laws’ restrictions on a woman’s right to make her own health care decisions will
be “reasonable and necessary,” as those terms are used in Article 1, § 38(c), if the State
establishes they do not unduly infringe on the constitutional right because they are narrowly
tailored to achieve a compelling government interest. Wyo. Const. art. 1, § 38(c) & (d).

V.     Strict Scrutiny Analysis – The State has not met its burden of showing the
       Abortion Laws are narrowly tailored to serve a compelling government interest.
       The laws are therefore unconstitutional under Article 1, § 38.

[¶73] The questions presented in our strict scrutiny analysis of the Abortion Laws include:
1) whether the State has a compelling interest in restricting a woman’s fundamental right
to make her own health care decision to have an abortion; 2) whether the restrictions
actually accomplish the compelling state objective; and 3) whether the statutes’ methods
of accomplishing the objective are least restrictive on the constitutional right. Ailport v.
Ailport, 

, 

, 438 (Wyo. 2022); see also Mills, 

(the State “must demonstrate ‘a compelling interest . . . which is served by the challenged
legislation and which cannot be satisfied by any other convenient legal structure.’”)
(quoting Washakie Cnty. Sch. Dist. No. One, 

).

[¶74] While our ultimate decision on whether the State has met its burden under the strict
scrutiny standard is a matter of law, that decision is made on a given set of
legislative/constitutional facts. United States v. Friday, 

 (10th Cir. 2008).
The State has the burden of presenting evidence to answer each question of the strict
scrutiny analysis. See Campbell Cnty. Sch. Dist., 

 (applying the strict
scrutiny standard to school finance laws, the State had the burden of proof and its reliance
on “generalizations” rather than specific evidence to justify the costs represented in the
laws was insufficient to withstand constitutional muster); United States v. Playboy Ent.
Grp., Inc., 

, 816–23, 

, 1888–92 (2000) (discussing the
government’s burden of proof and evidence of least restrictive means in applying strict
scrutiny to content-based regulation of speech); Shaw v. Hunt, 

, 908–18, 

, 1902–07, 

 (1996) (discussing evidence in determining whether
the government proved it had a compelling interest to use race-based considerations in
drawing voting district and its means were narrowly tailored to achieve the compelling
interest).

[¶75] The State did not present any evidence to justify the Abortion Laws’ restrictions on
the fundamental right to make health care decisions. It, instead, focused its efforts on
arguing abortion is not health care, the decision to have an abortion is not the woman’s
own health care decision, Article 1, § 38 does not confer a fundamental right, and strict
scrutiny does not apply. We have rejected the State’s argument on each of those issues. As
we will explain in detail below, the State’s failure to present evidence to meet its burden
of proving the Abortion Laws’ restrictions on a woman’s right to make her own health care
decisions are narrowly tailored to serve a compelling state interest is dispositive.


                                             28
A.     Restrictions

[¶76] To perform a strict scrutiny analysis, we must understand the restrictions imposed
by the Abortion Laws on a woman’s right to make her own health care decisions. As stated
earlier, people have the fundamental right to make their own health care decisions, and a
woman’s decision to have an abortion is a health care decision. The Abortion Laws restrict
a woman’s right to make her own health care decisions by mostly prohibiting physicians
from providing abortions.

[¶77] The Life Act generally bans both procedural and medication abortions. 

. “Abortion” is defined generally in § 35-6-122(a)(i) as “the act of using
or prescribing any instrument, medicine, drug or any other substance, device or means with
the intent to terminate the clinically diagnosable pregnancy of a woman, including the
elimination of one (1) or more unborn babies in a multifetal pregnancy, with knowledge
that the termination by those means will, with reasonable likelihood, cause the death of the
unborn baby.” The provision excludes from the definition of “abortion” (and, therefore, the
prohibition on abortion) “any use, prescription or means specified in this paragraph if the
use, prescription or means are done with the intent to:”

              (A) Save the life or preserve the health of the unborn baby;

              (B) Remove a dead unborn baby caused by spontaneous
              abortion or intrauterine fetal demise;

              (C) Treat a woman for an ectopic pregnancy; or

              (D) Treat a woman for cancer or another disease that requires
              medical treatment which treatment may be fatal or harmful to
              the unborn baby.

Id.

[¶78] Section § 35-6-124 allows licensed physicians to perform abortions in limited
circumstances:

              (a) It shall not be a violation of W.S. 35-6-123 for a licensed
              physician to:

                     (i) Perform a pre-viability separation procedure
              necessary in the physician’s reasonable medical judgment to
              prevent the death of the pregnant woman, a substantial risk of
              death for the pregnant woman because of a physical condition


                                            29
             or the serious and permanent impairment of a life-sustaining
             organ of a pregnant woman, provided that no separation
             procedure shall be deemed necessary under this paragraph
             unless the physician makes all reasonable medical efforts
             under the circumstances to preserve both the life of the
             pregnant woman and the life of the unborn baby in a manner
             consistent with reasonable medical judgment;

                     (ii) Provide medical treatment to a pregnant woman that
             results in the accidental or unintentional injury to, or the death
             of, an unborn baby;

                    (iii) Perform an abortion on a woman when the
             pregnancy is the result of incest as defined by W.S. 6-4-402 or
             sexual assault as defined by W.S. 6-2-301. Prior to the
             performance of any abortion under this paragraph the woman,
             or the woman’s parent or guardian if the woman is a minor or
             subject to a guardianship, shall report the act of incest or sexual
             assault to a law enforcement agency and a copy of the report
             shall be provided to the physician; or

                    (iv) Perform an abortion on a woman when in the
             physician’s reasonable medical judgment, there is a substantial
             likelihood that the unborn baby has a lethal fetal anomaly or
             the pregnancy is determined to be a molar pregnancy.

[¶79] The Medication Ban in 

 supplements the general ban on
abortion in the Life Act. Section 35-6-139 states in relevant part:

             (a) Notwithstanding any other provision of law, it shall be
             unlawful to prescribe, dispense, distribute, sell or use any drug
             for the purpose of procuring or performing an abortion on any
             person.

             (b) The prohibition in subsection (a) shall not apply to:

                    (i) The sale, use, prescription or administration of any
             contraceptive agent administered before conception or before
             pregnancy can be confirmed through conventional medical
             testing;

                    (ii) The treatment of a natural miscarriage according to
             currently accepted medical guidelines;


                                             30
                     (iii) Treatment necessary to preserve the woman from
              an imminent peril that substantially endangers her life or
              health, according to appropriate medical judgment, or the
              pregnancy is the result of incest as defined by W.S. 6-4-402 or
              sexual assault as defined by W.S. 6-2-301. As used in this
              paragraph, “imminent peril” means only a physical condition
              and shall not include any psychological or emotional
              conditions. No medical treatment shall form the basis for an
              exception under this paragraph if it is based on a claim or
              diagnosis that the pregnant woman will engage in conduct
              which she intends to result in her death or other self-harm.

[¶80] A person who violates the Abortion Laws (other than the woman receiving the
abortion) may be subject to loss of licensure and a felony charge, punishable by a $20,000
fine and up to five years imprisonment, or a misdemeanor charge, punishable by a $9,000
fine and up to six months imprisonment. 

(a)-(b), 35-6-126,
35-6-139(c)-(d).

B.     Compelling Interest

[¶81] The first requirement the State must meet in a strict scrutiny analysis is to show it
has a compelling interest which justifies the statutory restrictions on the constitutional
right. A compelling government interest “is one of the highest order.” Planned Parenthood
of Montana, 570 P.3d at 73; see also Hodes & Nauser, MDs, P.A. v. Kobach, 

 (Kan. 2024) (Hodes & Nauser II) (“The Supreme Court has described a compelling
interest as one ‘of the highest order.’”) (quoting Wisconsin v. Yoder, 

, 

, 

 (1972)). The State may not simply assert a compelling interest;
it must substantiate that interest. See Operation Save Am., 

, 

 (finding no evidence in record to support asserted compelling interest in shielding
children from psychological damage that injunction sought to protect against). To meet its
burden, the State is required to present evidence/legislative facts showing its compelling
interest. See Hodes & Nauser II, 

 (“We have made clear that in ascertaining
whether an action directly promotes valid state interests[,] findings must be based on
evidence, including medical evidence, presented in judicial proceedings.”) (citation
modified); Valley Hosp. Ass’n v. Mat-Su Coal. for Choice, 

 (Alaska
1997) (quasi-public hospital failed to demonstrate a compelling interest to support its
restrictions on access to abortion care where it had “not advanced any medical, safety, or
other public-welfare interest to justify precluding elective abortions”). In keeping with the
rule that the State may not simply declare an interest as compelling, it likewise may not
create a compelling interest by simply adopting legislation. Hodes & Nauser II, 

. Instead, the State must specifically identify an “actual problem” that needs solving.
Operation Save Am., 

, 

.


                                             31
[¶82] The State asserts it has a compelling interest in preserving prenatal life at all stages
of development, 13 and it contends that “only the State through its lawmaking authority can
prevent the indiscriminate killing of many unborn babies caused by elective abortion.” The
State offers very little evidence or authority in support of this broad conclusory statement.
That said, we need not decide in this case whether the State has a compelling interest in
protecting unborn life from the moment of conception because even if we assume the State
has such an interest, it has not met its burden of showing the Abortion Laws are narrowly
tailored to serve that compelling interest.

C.      Narrow Tailoring

[¶83] In determining if a statute satisfies the narrow tailoring requirement of strict scrutiny,
courts consider whether the statute is necessary to protect the compelling state interest. The
method or means of protecting the stated compelling interest must actually advance the
compelling interest. See Students for Fair Admissions, Inc. v. Pres. & Fellows of Harvard
Coll., 

, 215–17, 

, 2167–68, 

 (2023) (the
methods used by the university undermined, rather than promoted, its declared compelling
interests); Brewer v. City of Albuquerque, 

, 1214–15, 1245 (10th Cir. 2021)
(to demonstrate narrow tailoring, “the government ‘bears the burden of producing concrete
evidence’—in ‘some form’—‘to show that its proposed restriction will actually achieve its
asserted interest[.]’”) (quoting Martin v. City of Albuquerque, 

, 1031
(D.N.M. 2019)); Am. Acad. of Pediatrics v. Lungren, 

 (Cal. 1997) (statute
did not further the compelling state interest).

[¶84] As part of the narrow tailoring analysis, courts also consider whether a challenged
statute is overinclusive or underinclusive. An overinclusive statute restricts conduct that
does not further the compelling state interest. Richard H. Fallon, Jr., Strict Judicial
Scrutiny, 

, 1328 (2007); Hodes & Nauser II, 

 (citing
Citizens United v. Fed. Election Comm’n, 

, 

, 

 (2010) (“statute prohibiting corporations from funding speech supporting political
candidates was overinclusive in relation to interest in preventing dissenting shareholders
from being compelled to fund corporate speech because it applied to all corporations,
13
  The State also claims the Medication Ban “serves the compelling state interest in regulating the practice
of medicine to protect the health and welfare of Wyoming citizens.” It, however, provides no evidence
showing its obvious interest in protecting the health and welfare of Wyoming citizens is served by banning
the medications used to induce abortions.

In 

(a)(vi) (2025), the legislature identified as legitimate interests for the abortion
restrictions “respect for and preservation of prenatal life at all stages of development; the protection of
maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the
preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of
discrimination on the basis of race, sex, or disability.” On appeal, the State does not advance these as
compelling governmental interests, and we therefore do not address them.


                                                      32
including those with a single shareholder”)). A statute is underinclusive if “it fails to
regulate activities that pose substantially the same threats to the government’s purportedly
compelling interest as the conduct that the government prohibits.” Hodes, 

(quoting Fallon, Jr., supra, at 1327). An underinclusive statute “will predictably fail to
achieve purportedly justifying goals.” Fallon, Jr., supra, at 1327; see also Hodes & Nauser
II, 551 P.3d at 51–52 (statute was underinclusive because it failed “to curtail activity that
pose[d] the same threat to the State’s asserted interest” as the restricted activity).

[¶85] The State contends the Abortion Laws are narrowly tailored to achieve its asserted
compelling interest of protecting unborn life because the exceptions to the abortion bans
“permit a pregnancy to be terminated or an abortion to be performed when the pregnancy
conflicts with the constitutionally protected rights of the pregnant woman.” That statement
is conclusory and does not demonstrate the law is narrowly tailored to achieve the
compelling interest of protecting the unborn without unduly infringing on the woman’s
right to make her own health care decision. Conclusory statements are insufficient to
validate statutory restrictions under strict scrutiny. See Does 1-11 v. Bd. Of Regents of Univ.
of Colo., 

, 1273, 1278 (10th Cir. 2024) (the Tenth Circuit remarked the
university did not even attempt to provide evidence showing its policies were narrowly
tailored to achieve its asserted compelling interest and its explanation of narrow tailoring
was “entirely conclusory.”).

[¶86] The Plaintiffs, on the other hand, presented evidence showing the exceptions in the
Abortion Laws are not narrowly tailored to protect unborn life without unduly infringing
on a woman’s fundamental right to make the health care decision to have an abortion. We
will address a few examples. 14

        1.      Exception for Lethal Fetal Anomaly

[¶87] The Life Act permits an abortion if, in “the physician’s reasonable medical
judgment, there is a substantial likelihood that the unborn baby has a lethal fetal anomaly.”

(a)(iv). “‘Lethal fetal anomaly’ means a fetal condition
diagnosed before birth and if the pregnancy results in a live birth there is a substantial
likelihood of death of the child within hours of the child’s birth.” 

-
122(a)(vi). The Plaintiffs presented evidence showing physicians can know that certain
anomalies are lethal, but they may not know whether a pregnancy will result in a live birth,
and if so, whether it is substantially likely the child will die within hours or days.



14
   Our discussion of three examples of troublesome parts of the Abortion Laws does not necessarily
represent all the potential constitutional problems with the Abortion Laws. We simply offer these as
illustrations of strict scrutiny review. Our analysis would, of course, have been different if the State had
provided evidence/legislative facts to justify the Abortion Laws.


                                                    33
[¶88] Dr. Anthony is a Wyoming physician who specializes in obstetrics and gynecology.
She provides all forms of gynecologic and obstetric care, including medication abortions.
Dr. Anthony is concerned the lethal fetal anomaly exception is not workable because, for
some lethal fetal abnormalities, it is not medically possible to determine whether the fetus
will survive until birth, or if it does, how long it will survive afterwards. Dr. Anthony also
indicates the term “hours” used in the exception does not provide her “with the guidance
. . . to determine whether an abortion will violate” the Abortion Laws. Because of the
complexity of this type of medical decision-making and providers’ exposure to criminal
prosecution and loss of licensure, the exceptions create gray areas, uncertainty, and
hesitation for providers. The statutory language, therefore, requires physicians to make
potentially career- and life-altering decisions without sufficient guidance and their
understandable reluctance to do so will interfere with women’s fundamental right to make
the health care decision to have an abortion, even when the exception for lethal fetal
anomalies applies.

[¶89] The State bore the burden of showing the exception serves the compelling interest
of protecting unborn life without unduly interfering with a pregnant woman’s right to make
the health care decision to have an abortion. It presented no evidence showing its interest
in preserving unborn life is served by conditioning an abortion of a fetus with an
unquestionably fatal condition on a physician’s potentially impossible determination that
it will die within “hours” of a live birth.

[¶90] The State also failed to show the lethal fetal anomaly exception is the least restrictive
means of furthering its compelling interest. The evidence demonstrates the difficulties with
applying the exception will likely result in pregnant women being required to carry
pregnancies with lethal fetal anomalies to term. In this respect, the statute is overinclusive
because it unduly restricts a woman’s right to obtain an abortion even when it will not serve
the State’s interest in protecting unborn life.

[¶91] Moreover, the overly restrictive exception unnecessarily endangers the health and
lives of pregnant woman. Earlier, we described Drs. Anthony and Hinkles’ testimony about
physical and mental health conditions that can be caused and exacerbated by pregnancy.
Labor and childbirth also present risks that can be life-threatening. Addressing the lethal
fetal anomaly exception, Dr. Anthony stated, “given that full-term pregnancy has real
health risks, including the possibility of death of the mother, for the State to force a woman
to carry . . . a baby [with a lethal fetal anomaly] to term is unethical, inhumane, and an
infringement of bodily autonomy.” The State did not present any evidence showing the
physicians’ concerns were invalid. In short, the State failed to show the lethal fetal anomaly
exception serves the compelling state interest of protecting unborn life or is least restrictive
on a woman’s fundamental right to make her own health care decisions.

[¶92] Okla. Call for Reproductive Justice v. Drummond, 

 (Okla. 2023),
addressed a similar situation. The Oklahoma Supreme Court held the due process clauses


                                              34
of the state’s constitution provided a woman an inherent right to an abortion to preserve
her life and held three laws limiting a woman’s access to life-saving abortion care likely
violated that constitutional right. 15 

 at 115–16. The laws restricted the right to obtain a
legal abortion by allowing only physicians board certified in obstetrics and gynecology to
perform abortions, requiring physicians performing medication abortions to have
privileges (or be associated with a physician with privileges) at a hospital near where the
drug was administered, and requiring an ultrasound prior to the abortion. 

[¶93] The state claimed the provisions served the compelling state interest of protecting
women’s health, but it did not present evidence showing the restrictions actually protected
women’s health when an abortion was necessary to save a woman’s life. 

 at 115–16.
Instead, the laws unnecessarily burdened women’s rights to obtain timely life-saving
abortions. 

; see also Students for Fair Admissions, Inc., 600 U.S. at 217, 143 S.
Ct. at 2168 (ruling the college’s practice of placing applicants into inadequate and
inaccurate racial classifications for admission purposes undermined, rather than promoted,
the university’s stated compelling interest in promoting diversity in the student body).

[¶94] In Wyoming, the Life Act restricts a woman’s fundamental right to make the health
care decision to have an abortion. Like the statutes in Okla. Call for Reproductive Justice,
the exception for lethal fetal anomalies in § 35-6-124(a)(iv) is not narrowly tailored to
protect the State’s asserted compelling interest without unduly infringing on the woman’s
constitutional right.

        2.      Exception to Protect Life of the Woman

[¶95] Both the Life Act and the Medication Ban conditionally allow abortions when a
pregnant woman’s life or health is endangered by the pregnancy. 

-
124(a)(i) states in relevant part:

                (a) It shall not be a violation of W.S. 35-6-123 for a licensed
                physician to:

                       (i) Perform a pre-viability separation procedure
                necessary in the physician’s reasonable medical judgment to
                prevent the death of the pregnant woman, a substantial risk of
                death for the pregnant woman because of a physical condition
                or the serious and permanent impairment of a life-sustaining
                organ of a pregnant woman . . . .



15
  Okla. Call for Reproductive Justice was an appeal of a denial of a request for a temporary injunction. 543
P.3d at 113.


                                                    35
[¶96] Although § 35-6-124(a)(i) applies to both procedural and medication abortions, the
legislature adopted different language in the Medication Ban. Section 35-6-139(b)(iii)
allows use of abortion drugs for:

              (iii) [t]reatment necessary to preserve the woman from an
              imminent peril that substantially endangers her life or health,
              according to appropriate medical judgment . . . . As used in this
              paragraph, “imminent peril” means only a physical condition
              and shall not include any psychological or emotional
              conditions. No medical treatment shall form the basis for an
              exception under this paragraph if it is based on a claim or
              diagnosis that the pregnant woman will engage in conduct
              which she intends to result in her death or other self-harm.

[¶97] Aside from the potential problems with the different standards in §§ 35-6-124(a)(i)
and 35-6-139(b)(iii) applying to medication abortions, we are concerned about the
language that disallows an abortion if a woman’s life or health is at risk because of a mental
health condition or “based on a claim or diagnosis that the pregnant woman will engage in
conduct which she intends to result in her death or other self-harm.” Section 35-6-
139(b)(iii). The Plaintiffs presented evidence showing pregnancy can induce or exacerbate
mental health conditions. Citing data from the CDC, Plaintiffs’ expert, Dr. Ghazaleh
Kinney Moayedi, noted in her affidavit that mental health conditions are the leading cause
of maternal death in the United States, with almost one-quarter of pregnancy-related deaths
directly linked to mental health conditions.

[¶98] The State did not present evidence showing mental illness is not a real threat to
pregnant women or a diagnosed mental health condition in a pregnant woman should be
considered suspect. It is obvious that, if a pregnant woman dies from a mental health
condition, the unborn child is very likely to die, too. In this respect, the State has not shown
the express prohibition on the consideration of mental health conditions in § 35-6-
139(b)(iii) will further the compelling state interest of protecting unborn life. Moreover,
nothing in the record shows it is narrowly tailored to impose the least onerous restrictions
on the woman’s fundamental right to make her own health care decisions. In fact, the
evidence demonstrates the Abortion Laws could place a woman with a diagnosed mental
health condition in mortal peril by not allowing her to exercise her fundamental right to
make her own health care decision to have an abortion. The State has not demonstrated the
complete exclusion of mental health conditions in § 35-6-139(b)(iii) and the consequent
threat to the health and life of pregnant women suffering from mental health conditions
represents the least onerous method of serving the compelling state interest in protecting
unborn life.

[¶99] We agree with the North Dakota Supreme Court’s analysis in Access Indep. Health
Servs., Inc. v. Wrigley, 

, 915–16 (N.D. 2025) (Access Indep. Health Servs.


                                              36
Inc. I). The court considered the state’s motion for a stay pending appeal of the district
court’s order declaring unconstitutional a statute which allowed for “abortions performed
to save a woman from serious injury and death,” but criminalized “abortions performed to
treat psychological disorders that will cause a woman to engage ‘in conduct that will result
in her death’ or conduct that will result in ‘substantial physical impairment of a major
bodily function.’” Id. at 906, 916 (quoting N.D.C.C. § 12.1-19.1-01(5)).

[¶100] The court recognized a pregnant woman “has a fundamental right to obtain an
abortion to preserve her life or her health,” and ruled strict scrutiny applied to the statutory
restriction of that right. Id. at 915 (quoting Wrigley v. Romanick, 

(N.D. 2023)). In denying the state’s motion for a stay, the court ruled:

                Under every other circumstance, the law allows abortions
                performed to save a woman from serious injury and death.
                N.D.C.C. § 12.1-19-03(1). The law’s exception for injury and
                death caused by psychological maladies appears arbitrary. If
                the State's goal is to prevent unnecessary abortions and protect
                maternal health, this law does not appear narrowly tailored to
                achieve that aim within constitutional bounds. Therefore, the
                law is unlikely to survive strict scrutiny review because it
                criminalizes abortions necessary to prevent a woman from
                harming or killing herself.

Access Indep. Health Servs., Inc. I, 16 N.W.3d at 916. 16

[¶101] Here, the State has not met its burden of proving the exception to the abortion ban
which only allows an abortion when a woman has a physical condition that substantially
endangers her life or health is narrowly tailored to protect unborn life.

        3.      Exception for Incest and Sexual Assault

[¶102] Another example of the State’s failure to justify the Abortion Laws under strict
scrutiny review is the exception from the abortion ban for pregnancies that result from
incest or sexual assault. 

(a)(iii). That provision states the ban
on abortion shall not apply to an abortion performed



16
  On the merits, the North Dakota Supreme Court recently upheld North Dakota’s abortion legislation as
constitutional. Access Indep. Health Servs., Inc. v. Wrigley, ___ N.W.3d ___, ___ (N.D. 2025) (Access
Indep. Health Servs. Inc. II). Notably, however, a majority of the court would have held the legislation to
be unconstitutional. North Dakota’s constitution requires a supermajority of four members of the court in
order to declare a legislative enactment unconstitutional. N.D. Const. art. VI, § 4. Thus by operation of the
North Dakota Constitution, the abortion legislation in that state remains in effect.


                                                    37
              on a woman when the pregnancy is the result of incest as
              defined by W.S. 6-4-402 or sexual assault as defined by W.S.
              6-2-301. Prior to the performance of any abortion under this
              paragraph the woman, or the woman’s parent or guardian if the
              woman is a minor or subject to a guardianship, shall report the
              act of incest or sexual assault to a law enforcement agency and
              a copy of the report shall be provided to the physician.
Id.

[¶103] The exemption, which allows an abortion simply because conception occurred as a
result of incest or a sexual assault, does nothing to further the State’s interest in protecting
unborn children and the State does not advance any other compelling interest to justify the
exception. Brewer, 18 F.4th at 1214–15, 1245 (the government must show the restriction
will achieve its asserted compelling interest). In that regard, the Abortion Laws are
underinclusive because they do not protect all unborn children. See Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah, 

, 543–47, 

, 2232–34, 

 (1993) (Ordinances prohibiting animal sacrifice during religious rites violated
the church’s right to the free exercise of religion because they were not narrowly drawn to
promote the city’s claimed interests of preventing public health risks and preventing cruelty
to animals. The ordinances were underinclusive because other types of animal killing (e.g.,
slaughter for food and euthanasia) were permitted).

[¶104] Even if the State had identified another compelling interest which would be
furthered by banning abortions in general but allowing an exception for pregnancies
resulting from sexual assault or incest, the Plaintiffs raise concerns about the requirement
in § 35-6-124(a)(iii) for the pregnant woman to report the attack that led to her pregnancy
to law enforcement and provide a written copy of that report to the physician before an
abortion may be performed. Id.

[¶105] Plaintiffs’ prosecutorial expert, Michael A. Blonigen, stated sexual assault and
incest are underreported crimes. He also expressed the following concerns regarding the
impact of the reporting requirement:

              [T]he requirement of written reports is out of step with current
              police work. Currently, and has been the case for several years,
              written reports are often incomplete or insubstantial, and may
              not provide sufficient information to a health care provider.
              Rather reports are usually set forth in digital media such as
              video, audio recording, body cameras.

              These issues are nothing as compared to burdens placed on
              minor victims of sexual assault and abuse. To come within the
              exemption, the minor victim cannot even be the reporting


                                              38
              party. The report must be made by the minor’s parents or
              guardian. Guardianship is a term defined by law. It does not
              encompass the vast array of people caring for children
              including but not limited to stepparents, grandparents, siblings,
              foster parents or state agencies such as the Department of
              Family Services. . . . There is no provision for the child to seek
              care through a court ordered attorney or physical custodian.

              Based on my training and experience this language will result
              in the failure to provide abortion care to significant numbers of
              victims of childhood sexual abuse. The most obvious case is
              the case where the child’s father has impregnated a child. It
              seems unlikely the perpetrator will report themselves and it is
              common for parents of sexual abuse victims to shelter others
              who may sexually abuse children. The number of cases where
              parents protect grandparents, uncles, boyfriends and family
              friends are too many to count. In addition, reporting the assault
              to the police in cases of pregnancy would probably result in the
              collection of irrefutable DNA evidence which would lead to
              the prosecution of the perpetrator. The reporting requirement
              creates the real possibility that a minor victim will have to carry
              a child to term that is the result of her being subjected to sexual
              assault.

[¶106] The State presented no evidence countering Mr. Blonigen’s statements about the
problems with obtaining an appropriate report in a timely fashion or demonstrating law
enforcement reports are necessary because women commonly provide falsified claims of
incest or assault to obtain abortions. Instead, the evidence shows this requirement, which
is out of step with normal law enforcement procedure, will likely create a barrier that will
prevent victims from accessing abortion care. See Okla. Call for Reproductive Justice, 543
P.3d at 115–16. The State has not shown that requiring a woman who has already been a
victim of violence to follow a flawed process to obtain authorization for an abortion is the
least restrictive alternative. Like the other exceptions we have discussed, the requirement
unduly infringes on the woman’s constitutional right.

[¶107] A woman has a fundamental right to make her own health care decisions, including
the decision to have an abortion. The State did not meet its burden of demonstrating the
Abortion Laws further the compelling interest of protecting unborn life without unduly
infringing upon the woman’s fundamental right to make her own health care decisions. As
such, the Abortion Laws do not constitute reasonable and necessary restrictions on a
pregnant woman’s right to make her own health care decisions.




                                              39
                                    CONCLUSION

[¶108] The State did not meet its burden of proving the Abortion Laws are necessary to
achieve a compelling government interest or are narrowly tailored to avoid unduly
infringing on a woman’s right to make her own health care decisions under Article 1, § 38
of the Wyoming Constitution. Having concluded the Abortion Laws violate Article 1, § 38,
we need not address Plaintiffs’ claims that the laws are unconstitutionally vague, or that
they violate the equal protection, substantive due process, and religious freedom and
establishment provisions of the Wyoming Constitution.

[¶109] Affirmed.




                                           40
FENN, Justice, specially concurring.

[¶110] I concur with the result reached by the majority. I agree with the majority the
decision to terminate or continue a pregnancy is a woman’s own health care decision. I
also agree with the majority’s departure from the distinction between facial and as-applied
challenges. However, I cannot agree with the majority’s conclusion that strict scrutiny
applies to the right recognized in Article 1, § 38 of the Wyoming Constitution. I would
find Article 1, § 38 allows the legislature to enact reasonable and necessary restrictions that
do not unduly infringe on the right to make one’s own health care decisions. Because the
State failed to meet its burden of proving the Abortion Statutes meet this standard, I would
find the statutes are unconstitutional and affirm the district court’s decision.

   I. The Plain, Unambiguous Language of Article 1, § 38 Requires the Application of
      a Constitutionally Defined Level of Scrutiny, Not Strict Scrutiny.

[¶111] “Interpreting the constitution is exclusively the province of the courts. . . .”
Rodriguez-Williams v. Johnson, 

, 

 (Wyo. 2024). “The
Wyoming Constitution is a fundamental law ‘established by and expressing the will of the
people.’” Powers v. State, 

, 

 (Wyo. 2014) (citation
omitted). This Court has the responsibility to “preserve, protect, and defend the people’s
fundamental law.” 

 “Where a constitution asserts a certain right, or lays down a certain
principle of law or procedure, it speaks for the entire people as their supreme law, and it is
the paramount authority for all that is done in pursuance of its provisions.” Cathcart v.
Meyer, 

, 

 (Wyo. 2004) (quoting 16 Am. Jur. 2d
Constitutional Law § 1 (1998)). The “fundamental law” created by a constitution is
“absolute and unalterable except through amendment by the people from which it
emanated.” Id. (quoting 16 Am. Jur. 2d Constitutional Law § 1). It is this Court’s duty to
ascertain the meaning of the Wyoming Constitution and the meaning of any statute passed
by the legislature. State v. Campbell Cnty. Sch. Dist., 

, 

(Wyo. 2001) (quoting The Federalist No. 78 (Alexander Hamilton)). The power of the
people is superior to both the power of the judiciary and the power of the legislature. 

 at
¶¶ 30–31, 

. Where the will of the legislature as declared in its statutes is in
opposition to that of the people as declared in the Constitution, courts are and must be
governed by the will of the people and must regulate judicial decisions by the fundamental
law found in the Constitution. Id.; see also Wyo. Const. art. 1, § 1 (“All power is inherent
in the people, and all free governments are founded on their authority, and instituted for
their peace, safety and happiness; for the advancement of these ends they have at all times
an inalienable and indefeasible right to alter, reform or abolish the government in such
manner as they may think proper.”). This Court cannot ignore or disregard the mandates
of the Wyoming Constitution. See 16 Am. Jur. 2d Constitutional Law § 61 (November
2025 Update).




                                              41
[¶112] To decide if the Abortion Statutes are constitutional, this Court must interpret
Article 1, § 38 to determine the extent to which this provision limits the legislature’s power
to regulate a competent adult’s right to make his or her own health care decisions. Our
rules of constitutional construction and interpretation are well known. “In cases of
constitutional interpretation, ‘[w]e are guided primarily by the intent of the drafters.’”
Powers, 

, ¶ 8, 

 (quoting Cantrell v. Sweetwater Cnty. Sch. Dist.
No. 2, 

, 

 (Wyo. 2006)).

              The primary principle underlying an interpretation of
              constitutions or statutes is that the intent is the vital part, and
              the essence of the law. The object of construction, as applied
              to a written constitution, is to give effect to the intent of the
              people in adopting it. In the case of all written laws, it is the
              intent of the lawgiver that is to be enforced.

 318 P.3d at 303–04 (quoting Rasmussen v. Baker, 

 (1897)) (citation
modified). To determine the intent of the people adopting a written constitution or
amendment thereto, we look first at the plain and unambiguous language used in the text
of the constitution. 

 at ¶¶ 8–9, 318 P.3d at 303–04. “If the language employed is plain
and unambiguous, there is no room left for construction. It must be presumed that in [the]
case of a constitution the people have intended whatever has been plainly expressed.
Courts are not at liberty to depart from that meaning which is plainly declared.” Id. at ¶ 8,

 (quoting Rasmussen, 

).

              It is the duty and responsibility of the court to ascertain the
              meaning of the constitution as written, neither adding to nor
              subtracting from it, and neither deleting nor distorting the
              document. A court’s obligation is to give to the words of a
              constitution a reasonable interpretation consistent with the
              plain meaning understood by the ratifiers.

16 Am. Jur. 2d Constitutional Law § 71 (November 2025 Update). We apply harmonizing
rules like those employed in interpreting statutes, and we interpret the Wyoming
Constitution in a manner that gives effect to every word, clause, and sentence, without
rendering any portion meaningless. Powers, 

, 

 (citations
omitted). With these rules in mind, I turn to the constitutional provision at issue in this
case.

[¶113] Article 1, § 38 of the Wyoming Constitution is different than all the other
declarations of rights contained in Article 1 of the Wyoming Constitution. See Wyo. Const.
art. 1, §§ 1–39. Whereas the other 38 rights set forth in Article 1 contain relatively short,
simple statements, § 38 has four subsections, which under our harmonizing rules must be
read together. Section 38 states:


                                              42
                Sec. 38. Right of health care access.
                 (a) Each competent adult shall have the right to make his or
                her own health care decisions. The parent, guardian or legal
                representative of any other natural person shall have the right
                to make health care decisions for that person.

                 (b) Any person may pay, and a health care provider may
                accept, direct payment for health care without imposition of
                penalties or fines for doing so.

                 (c) 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.

                  (d) The state of Wyoming shall act to preserve these rights
                from undue governmental infringement.

Neither party asserts Article 1, § 38 is ambiguous. I agree this provision is unambiguous
and must be applied according to its plain terms.

[¶114] The plain language of subsection (a) recognizes a competent adult has the right to
make his or her own health care decisions. Wyo. Const. art. 1, § 38(a). Subsection (b),
which is not at issue in this appeal, recognizes a citizen’s right to make direct payments to
a health care provider without paying penalties or fines. Wyo. Const. art. 1, § 38(b).
Subsection (c) contains language that expressly qualifies the right described in (a), and it
specifically acknowledges the legislature may determine “reasonable and necessary
restrictions” on “the rights granted under this section” for certain purposes, including to
protect the health and general welfare of the people. Wyo. Const. art. 1, § 38(c). Subsection
(d) imposes an affirmative obligation on the State to preserve the right to make health care
decisions from “undue governmental infringement.” Wyo. Const. art. 1, § 38(d). Because
the language of Article 1, § 38 is plain and unambiguous, there is no room for construction,
and we “are not at liberty to depart from that meaning which [has been] plainly declared.”
Powers, 

, 

 (quoting Rasmussen, 

). Based on
the plain language of Article 1, § 38, when determining whether a challenged statute that
involves a health care decision is constitutional, courts must determine whether the statute
is a “reasonable and necessary” restriction that does not unduly infringe upon a competent
adult’s right to make his or her own health care decisions. 17

17
   The dissent suggests Article 1, § 38(d) applies only to governments other than the State, i.e. federal,
tribal, county, and municipal governments. I cannot agree. Such an interpretation requires the Court to



                                                   43
[¶115] As the majority points out, this Court has traditionally applied either the rational
basis test or the strict scrutiny test when determining the constitutional validity of statutes.
However, we have left open the possibility there could be circumstances where some other
level of scrutiny applies. See White, 784 P.2d at 1315–17 (discussing whether a citizen’s
right of access to the courts should be subject to a heightened level of scrutiny). The
majority acknowledges there are instances where this Court does not apply strict scrutiny
even when a statute purportedly impacts a “fundamental right,” “because the express
language of the constitution suggests a more appropriate test.” Article 1, § 38 is unlike any
other provision this Court has ever been asked to interpret, and it contains language
specifically setting out the appropriate test that should be applied.

[¶116] The majority recognizes Article 1, § 38 is unique. The majority also concedes the
plain meaning of this provision controls, and the Court is not at liberty to read restrictions
into this provision. Despite these admissions and acknowledgements, the majority looks
at the definitions of the words “reasonable,” “necessary,” and “undue” and determines
these words are “easily harmonized with the strict scrutiny standard.” Based on this
harmonization, the majority concludes this Court must apply strict scrutiny to determine if
the Abortion Statutes are constitutional under Article 1, § 38. Under the majority’s
interpretation, the legislature must have a compelling interest before it can regulate health
care decisions, and each regulation must be narrowly tailored to achieve that interest. Such
an interpretation ignores the language the people voted into the measure and replaces those
words with others to shoehorn the unique right recognized in Article 1, § 38 into a judicially
created standard that is contrary to the plain language of the constitutional provision. “We
should decide constitutional issues based on the words used in the Wyoming Constitution,
not in spite of them.” Powers, 

, 

 (Davis, J. concurring).

[¶117] Because the plain language of Article 1, § 38 sets forth the standard that should be
applied to any statute that allegedly violates this constitutional provision, the Court does
not need to apply any judicially created standard. This Court, like all other branches of the
State government, is bound by the limitations expressed in the Wyoming Constitution. See
Campbell Cnty. Sch. Dist., 

, ¶¶ 30–31, 

 (stating courts are subject
to the will of the people as expressed in the constitution); 16 C.J.S. Constitutional Law § 12


read words into Article 1, § 38(d) that are not there, which goes against our principles of constitutional
interpretation and construction. See Gordon, 

, ¶ 39, 

 (“We will not read words
into the [constitutional] provision that the drafters omitted.”). Section 38(d) imposes an affirmative duty
on all three branches of the State government to “preserve these rights from undue governmental
infringement.” The language in (d) is not “superfluous,” and reading this provision as applying to the State
government would not produce a “borderline absurd” result. Any health care restrictions passed by the
legislature must comply with the test set out in the constitutional provision. The executive branch bears the
burden of proving any statutes challenged under this constitutional provision do not unduly infringe on the
rights granted therein. The judicial branch must preserve the rights granted by this provision by holding
the State to that burden when any health care statute is challenged.


                                                    44
(November 2025 Update) (“The constitution of a state is a limitation on the power of the
legislature, binding on the several departments of state government, all its officers and
agencies, the state’s supreme court, and the people themselves.”). The people, through the
constitutional amendment process, can dictate this Court’s standard of review. See
Rasmussen, 

 (citation omitted) (“The sovereignty resides in the people,
although, by written constitutions, they have delegated the exercise of sovereign powers to
several departments. The people ‘retain in their own hands a power to control the
governments they create as far as they have thought needful to do so; and the three
departments are responsible to and subject to be ordered, directed, changed, or abolished
by them.’”); Campbell Cnty. Sch. Dist., ¶¶ 30–31, 

 (stating courts must be
governed by the will of the people, and they should regulate their decision by “the
fundamental laws” of the constitution). Constitutional provisions cannot be abrogated,
limited, or modified by this Court. See 16 C.J.S. Constitutional Law § 12. Our “jurisdiction
[] extends only to the construction and enforcement of the constitution . . . .” Grand Island
& N. Wyo. R.R. Co. v. Baker, 

 (Wyo. 1896); see also Mack v. Johnson, 

 (Ark. 1894) (citation modified) (“Courts must obey, not abrogate,
constitutional provisions. . . . [W]here a constitution contains a positive provision, the
courts cannot ignore it or annul it. . . .”); Smith v. Craddick, 

 (Tex.
1971) (“[T]his court may not abrogate any provision of the constitution for the sake of
simplicity.”). “If the people of the [State], by adopting a constitution, have committed
themselves to a mistaken policy, the only remedy is an amendment, by constitutional
methods, of that instrument.” Grand Island & N. Wyo. R.R. Co., 

. Accordingly,
this Court must apply the standard of review adopted by the people in the Constitution
rather than modifying the constitutional provision through the application of strict scrutiny.

[¶118] Contrary to the majority’s assertion, I am not suggesting speculation about “the
possible scope of [future] constitutional challenges” should dictate how this Court
determines “how those challenges will be addressed.” The majority misunderstands the
reason why it is relevant to consider the number of statutes which may be subject to
constitutional review following the issuance of this opinion when interpreting Article 1,
§ 38. The majority passes off a potential increase in litigation as merely “an unintended
consequence” of the passage of this constitutional amendment. However, when
interpreting Article 1, § 38, this Court must “give effect to the intent of the people” who
adopted it. Powers, 

, 

 (citation omitted). “Constitutional
provisions, like legislative enactments, are presumed to be logical, reasonable, and just.”
Cantrell, 

, 

 (citations omitted). As the majority points
out, in some cases it is appropriate to use extrinsic aids of construction to confirm our
interpretation of the plain, unambiguous language of a constitutional provision. See Solvay
Chems., Inc., 

, 

. Given the unique nature of this
constitutional provision, I believe it is appropriate to use extrinsic aids of construction to
confirm whether our proposed interpretation of the constitutional provision is correct.




                                             45
[¶119] The Court can consider “the mischief the act was intended to cure, the historical
setting surrounding its enactment, the public policy of the state, the conditions of the law
and all other prior and contemporaneous facts and circumstances that would enable the
court intelligently to determine the intention of the lawmaking body.” Cantrell, 

, 

 (citations omitted). At the time it was passed, Article 1, § 38 was
considered a “message” amendment, “expressing the state’s displeasure with the
controversial federal Affordable Care Act . . . .” Keiter, The Wyoming State Constitution
110. After the Affordable Care Act was upheld, it became unclear what portions of Article
1, § 38 had been preempted by federal law and which remained viable. See id. When
Article 1, § 38 was enacted, health care was heavily regulated by the State and the federal
governments, and it remains so today. See, e.g., Gonzales v. Carhart, 

,

, 

 (2007) (stating the government has “an interest
in protecting the integrity and ethics of the medical profession,” and plays a “significant
role” in regulating the medical profession); Taylor v. Wyo. Bd. of Med., 

(Wyo. 1997) (recognizing the practice of medicine in the State of Wyoming is governed
by the Medical Practice Act, 

 through 33-26-511, and by
regulations “necessary to implement the Act” imposed by the Wyoming Board of
Medicine); 

 to 35-13-206 (2025) (containing numerous
statutes regulating public health and safety). When Article 1, § 38 was drafted and passed
in 2012, the strict scrutiny standard existed. See, e.g., Mills, 

 (applying the
strict scrutiny test in 1992). Yet, the drafters chose not to use the words “compelling
interest” or “narrowly tailored” from the strict scrutiny standard when drafting Article 1,
§ 38. Instead, they specifically used the words “reasonable,” “necessary” and “undue
governmental infringement.” See Wyo. Const. art. 1, § 38(c), (d). Therefore, these extrinsic
aids of construction confirm that by passing Article 1, § 38, the drafters and ratifiers
intended to create a unique right that would be subject to a different type of scrutiny than
other rights set forth in the Wyoming Constitution.

[¶120] Article 1, § 38 recognizes the right of every competent adult to make his or her own
health care decisions, not just the narrow right to make a decision concerning abortion care.
Therefore, this Court is tasked with determining the test that applies when any statute that
restricts a health care decision is challenged. If, as the majority suggests, strict scrutiny
applies to every statute that implicates the rights guaranteed under Article 1, § 38, the State
would have to have a “compelling interest” before it could pass a statute that impacted even
the most mundane health care decision, and each statute would have to be “narrowly
tailored in pursuit of that interest.” The application of such a standard could lead to absurd
results and completely undermine the legislature’s ability to “enact laws for the health,
safety, comfort, moral, and general welfare of the people,” which “is an attribute of
sovereignty [that] is essential for every civilized government . . . .” State v. Langley, 

 (Wyo. 1938); see also Wyo. Const. art. 10, § 2 (“The police power of the
state is supreme over all corporations as well as individuals.”). Constitutional provisions
“should not be read so as to produce absurd results.” Cantrell, 

, 133 P.3d
at 986–87 (citing Corkill v. Knowles, 

 (Wyo. 1998)). Article 1, § 38


                                              46
expressly allows the legislature to “determine reasonable and necessary restrictions on the
rights granted under this section . . . .” Wyo. Const. art. 1, § 38(c). “For us to hold otherwise
would be tantamount to holding the constitution unconstitutional.” White, 

.

   II. The State Failed to Meet Its Burden of Proving the Abortion Statutes are
       Constitutional.

[¶121] Because we have never been called upon to interpret Article 1, § 38, this Court has
never determined which party has the burden of proving the constitutionality of a statute
challenged under this provision. In cases where the rational basis test applies, the heavy
burden of proving a statute is unconstitutional falls on the challenger. Hicks v. State, 

, 

, 389 (Wyo. 2025). However, in cases where strict scrutiny or
intermediate scrutiny applies, the burden falls on the government to justify the validity of
the statute. See Martin, 

, 503 P.3d at 73 (discussing the State’s burden
when strict scrutiny applies); United States v. Skrmetti, 

, 

,
1828–29, 

 (2025) (stating the intermediate scrutiny test places the burden
on the State to show a gender classification “serves important governmental objectives and
that the discriminatory means employed are substantially related to the achievement of
those objectives”). Article 1, § 38(d) places an affirmative obligation on the State to
“preserve these rights from undue governmental infringement.” Wyo. Const. art. 1, § 38(d).
I would hold the test created by Article 1, § 38 places the burden of proof on the State to
prove a statute passes constitutional muster.

[¶122] At the summary judgment stage, the State presented the following “evidence”: a
summary of the history of abortion laws in Wyoming from its territorial days through the
enactment of the Abortion Statutes; a discussion of the legislative history of the Abortion
Statutes; a discussion of the legislative history of Article 1, § 38; and newspaper articles
and a “voter guide” that indicate Article 1, § 38 was passed in response to the Affordable
Care Act. The State asserted the test announced in Article 1, § 38 was equivalent to a
rational basis test. Therefore, the State argued under a rational basis type review, it did not
need to present evidentiary proof to support the constitutionality of the Abortion Statutes,
and facts such as those provided by the Appellees were not material or relevant to
determining whether the statutes were constitutional under Article 1, § 38(c). The State
asserted the constitutionality of the Abortion Statutes posed a purely legal question. The
State argued the district court should afford great deference to the legislature’s
determination the Abortion Statutes were reasonable and necessary. Although the State
asserted the Abortion Statutes struck a reasonable balance between the “legally protected
rights of the pregnant woman” and “the legally protected rights of the unborn baby,” none
of the evidence presented by the State was directed at showing why the Abortion Statutes
are reasonable and necessary restrictions that do not unduly infringe upon a competent
woman’s right to make her own health care decisions. Because the State presented no
evidence making this showing, I would find the State failed to meet its burden of showing



                                               47
the Abortion Statutes comply with Article 1, § 38, and the Abortion Statutes are
unconstitutional. I would affirm the district court’s decision on this basis.




                                      48
GRAY, Justice, dissenting.

[¶123] I respectfully dissent. The Majority, like the district court, holds that the Life is a
Human Right Act (Life Act), 

 through -138, and the Chemical
Abortion statute, 

 (collectively abortion statutes), violate article
1, section 38 of the Wyoming Constitution, which gives each competent adult the right to
make his or her own health care decisions. The Majority decides that a pregnant woman’s
decision to terminate or continue a pregnancy is her own health care decision, that the
constitutional right to make one’s own health care decisions under article 1, section 38 is a
fundamental right, and any restriction on the right to make one’s own health care decisions
is subject to strict scrutiny. Applying strict scrutiny to the abortion statutes, the Majority
assumes the State has a compelling interest in preserving prenatal life at all stages of
development but concludes the State did not meet its burden of showing the abortion
statutes are narrowly tailored to achieve that interest.

[¶124] The abortion statutes, in their application, may pose difficulties under constitutional
provisions other than article 1, section 38, but the district court did not reach the plaintiffs’
other constitutional arguments, and the statutes have yet to be applied to any of the
plaintiffs. As a result, the only question before us is whether the abortion statutes violate
article 1, section 38. I agree with the Majority that the decision to terminate or continue a
pregnancy is a health care decision and that it is a woman’s own health care decision under
article 1, section 38. I also do not dispute that article 1, section 38 creates a fundamental
right to make one’s own health care decisions. I disagree, however, that strict scrutiny
applies. Under the plain terms of article 1, section 38(c), a restriction on a competent
adult’s right to make his or her own health care decisions will pass constitutional muster if
the legislature could “determine” such restriction was “reasonable and necessary . . . to
protect the health and general welfare of the people or to accomplish the other purposes set
forth in the Wyoming Constitution.” When properly construed, the abortion statutes
constitute a “reasonable and necessary” restriction by the legislature on the right of a
pregnant woman to make her own health care decisions for the purpose of preserving
prenatal life at all stages of development. The abortion statutes do not violate article 1,
section 38.

A.     Interpretation of Article 1, Section 38 and the Applicable Standard of Review

[¶125] Article 1, section 38 is unique to Wyoming’s constitution and has not been
previously interpreted. As the Majority correctly recognizes, the interpretation of article
1, section 38 does not turn on the nature of the statutes before us and is not limited to the
question of abortion. The interpretation of article 1, section 38 will apply in other
circumstances that might affect a competent adult’s right to make “health care decisions,”
including questions ranging from assisted suicide to medical marijuana and vaccines.




                                               49
[¶126] When interpreting the constitution, “[w]e are guided primarily by the intent of the
drafters[.]” Cantrell v. Sweetwater Cnty. Sch. Dist. No. 2, 

, 

 (Wyo. 2006) (citing Cathcart v. Meyer, 

, 

 (Wyo.
2004)); see also Rasmussen v. Baker, 

, 

 (1897) (“The constitution
derives its force from the people who adopted it, and it is the intention of the people which
is to be sought for.” (citation omitted)).

              In determining that intent, we look first to the plain and
              unambiguous language used in the text of the constitution. If
              the language is plain and unambiguous, there is no room left
              for construction.

                     It must be presumed that in [the] case of a constitution
                     the people have intended whatever has been plainly
                     expressed. Courts are not at liberty to depart from that
                     meaning which is plainly declared.

Gordon v. State by & through Capitol Bldg. Rehab., 

, ¶ 30, 

 (Wyo. 2018) (internal citations omitted) (quoting Saunders v. Hornecker, 

, 

 (Wyo. 2015)).

              Further, in interpreting the plain and unambiguous language of
              the [c]onstitution, we follow harmonizing rules similar to those
              employed when interpreting statutes[:]

                     Our cases explain that every statement in the
                     constitution must be interpreted in light of the entire
                     document, rather than as a series of sequestered
                     pronouncements, and that the constitution should not be
                     interpreted to render any portion of it meaningless, with
                     all portions of it read in pari materia and every word,
                     clause and sentence considered so that no part will be
                     inoperative or superfluous.

Powers v. State, 

, 

 (Wyo. 2014) (quoting Geringer v.
Bebout, 

 (Wyo. 2000)).

[¶127] Article 1, section 38 states:


              (a)   Each competent adult shall have the right to make his or
              her own health care decisions. The parent, guardian or legal


                                             50
              representative of any other natural person shall have the right
              to make health care decisions for that person.

              (b)    Any person may pay, and a health care provider may
              accept, direct payment for health care without imposition of
              penalties or fines for doing so.

              (c)    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.

              (d)   The state of Wyoming shall act to preserve these rights
              from undue governmental infringement.

Wyo. Const. art. 1, § 38.

[¶128] Subsection (a) and (b) outline certain rights. Subsection (b) is not before us, as the
plaintiffs did not allege the abortion statutes violate subsection (b). Subsection (a) gives
each competent adult the right to make his or her own health care decisions. If the person
is not a competent adult, the person’s parent, guardian, or other legal representative shall
have the right to make health care decisions for that person. I agree with the Majority that
the decision to terminate or continue a pregnancy is a “health care decision” and that it is
a woman’s own health care decision under article 1, section 38.

[¶129] The Majority decides the right of a competent adult to make one’s own health care
decisions is a fundamental right. Because the right is explicitly guaranteed by our
constitution, I do not dispute that the right to make one’s own health care decisions under
article 1, section 38 is a fundamental right. See San Antonio Indep. Sch. Dist. v. Rodriguez,

, 

, 

 (1973) (“[T]he key to discovering
whether education is ‘fundamental’ is not to be found in comparisons of the relative
societal significance of education as opposed to subsistence or housing. Nor is it to be
found by weighing whether education is as important as the right to travel. Rather, the
answer lies in assessing whether there is a right to education explicitly or implicitly
guaranteed by the Constitution.”); Mills v. Reynolds, 

 (Wyo. 1992) (“A
fundamental right is a right which the constitution explicitly or implicitly guarantees.”).
But see Vaughn v. State, 

, ¶¶ 27–28, 

, 1095–96 (Wyo. 2017) (in
the due process context, “[f]undamental rights are those liberties that are objectively deeply
rooted in this country’s history and tradition”).

[¶130] The Majority then determines that any restriction on the right of a competent adult
to make one’s own health care decisions is subject to strict scrutiny, which requires the


                                             51
State to prove (1) the restriction is necessary to further a compelling state interest and (2)
that interest cannot be served in a less onerous or restrictive manner or, stated differently,
the restriction is narrowly tailored to achieve the compelling state interest. I disagree that
strict scrutiny applies.


[¶131] It is a misconception that strict scrutiny applies whenever a fundamental right is
involved. For example, the Fourth Amendment of the United States Constitution and
article 1, section 4 of the Wyoming Constitution provide: “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]” U.S. Const. amend. IV; Wyo. Const., art. 1, § 4. Yet,
neither the United States Supreme Court nor this Court applies strict scrutiny to determine
the validity of a governmental search or seizure, but instead looks to whether the search or
seizure was reasonable. See Lange v. California, 

, 

, 2017,

 (2021) (“As [its] text makes clear, ‘the ultimate touchstone of the Fourth
Amendment is “reasonableness.”’” (quoting Brigham City, Utah v. Stuart, 

, 

, 

 (2006))); Boyer v. State, 

,

, 165 (Wyo. 2025) (stating “the standard governing our analysis under article
1, section 4 of the Wyoming Constitution is whether the traffic stop is ‘reasonable under
all of the circumstances’” (quoting O’Boyle v. State, 

, ¶¶ 30–31, 

 (Wyo. 2005))).

[¶132] Similarly, “the right to a speedy trial is a fundamental right guaranteed by the Sixth
Amendment to the Constitution of the United States, and it applies to the states by virtue
of the due process clause found in the Fourteenth Amendment.” Wehr v. State, 

 (Wyo. 1992) (citing Harvey v. State, 

 (Wyo. 1989) (citing Klopfer
v. State of N.C., 

, 

, 

 (1967))). See also Wyo. Const.
art. 1, § 10 (“In all criminal prosecutions the accused shall have the right . . . to a speedy
trial . . . .”). When determining whether an accused’s right to a speedy trial was violated,
we do not apply strict scrutiny. Instead, “we look to the four factors set forth in Barker v.
Wingo, 

, 

, 

 (1972): ‘(1) the length of the delay,
(2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice
to the defendant.’” Cotney v. State, 

, 

, 66 (Wyo. 2022)
(quoting Crebs v. State, 

, 

 (Wyo. 2020)).

              We conduct this analysis to determine whether the delay in
              bringing the accused to trial was unreasonable, that is, whether
              it substantially impaired the right of the accused to a fair trial.
              No single factor is dispositive. Instead, we consider the factors
              together and balanced in relation to all relevant circumstances.
              The State has the burden to prove delays in bringing the
              defendant to trial are reasonable and necessary.



                                              52


 (quoting Fairbourn v. State, 

, 

, 424–25 (Wyo. 2020)).

[¶133] Indeed, there are more fundamental rights not subject to strict scrutiny than those
that are subject to strict scrutiny. As one commentator has aptly explained:

              Fundamental rights do not trigger strict scrutiny, at least not all
              of the time. In fact, strict scrutiny—a standard of review that
              asks if a challenged law is the least restrictive means of
              achieving compelling government objectives—is actually
              applied quite rarely in fundamental rights cases. Some
              fundamental rights trigger intermediate scrutiny, while others
              are protected only by reasonableness or rational basis review.
              Other fundamental rights are governed by categorical rules,
              with no formal “scrutiny” or standard of review whatsoever.
              In fact, only a small subset of fundamental rights triggers strict
              scrutiny—and even among those strict scrutiny is applied only
              occasionally. In short, the notion that government restrictions
              on fundamental rights are subject to strict scrutiny review is
              fundamentally wrong.

Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 Const. Commentary
227, 227–28 (2006).

[¶134] Because a fundamental right does not automatically invoke strict scrutiny, we must
determine the standard of review triggered when a statute is challenged as a violation of
the rights set forth in article 1, section 38. The answer is found in the plain language of the
provision. Article 1, section 38(c) 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 or to accomplish
              the other purposes set forth in the Wyoming Constitution.

Reading article 1, section 38 as a whole, Wyoming voters placed the right of each
competent adult to make his or her own health care decisions into the constitution, and they
simultaneously allowed the legislature to “determine reasonable and necessary
restrictions” on that right “to protect the health and general welfare of the people or to
accomplish the other purposes set forth in the Wyoming Constitution.” The standard of
review established by the people in the constitution for legislative restrictions on health
care decisions is whether the restrictions are “reasonable and necessary” to protect the
health and general welfare of the people or to accomplish the other purposes set forth in
the Wyoming Constitution. This standard, not strict scrutiny, applies.



                                              53
[¶135] To decide what the drafters intended by subsection (c) and what the voters approved,
“we attempt to understand the meaning of the words at the time [article 1, section 38] was
ratified [in 2012].” Gordon, ¶ 31, 

 (citing Powers, ¶ 36, 

).
In 2012, the word “may” meant “have permission to . . . : be free to.” May, Merriam-
Webster’s Collegiate Dictionary (11th ed., 2012). “Determine” was defined as “to fix
conclusively or authoritatively” and “to settle or decide by choice of alternatives or
possibilities” and “to bring about as a result: REGULATE.” Determine, Merriam-Webster’s,
supra. “Reasonable” meant “being in accordance with reason,” “not extreme or excessive”
and “MODERATE, FAIR,” while “necessary” was defined as “absolutely needed: REQUIRED.”
Reasonable & Necessary, Merriam-Webster’s, supra. The word “and” is conjunctive and
requires that both conditions—reasonable and necessary—be met. Nunamaker v. State,

, 

 (Wyo. 2017) (citing Prickett v. Prickett, 

, 

 (Wyo. 2007)). “Restriction” meant “something that restricts:
as . . . a regulation that restricts or restrains” and “restrain” meant “to prevent from doing,
exhibiting, or expressing something” and to “limit, restrict, or keep under control.”
Restriction & Restrain, Merriam-Webster’s, supra. “Accomplish” was defined as “to bring
about (a result) by effort” and “to bring to completion: FULFILL.”

[¶136] Subsection (c) is unambiguous. It gives the legislature the ability to place
“reasonable and necessary” restraints on the right of competent adults to make their own
health care decisions to either protect the safety and general welfare of the people of
Wyoming or to fulfill other purposes set forth in the Wyoming Constitution. The plain
meanings of the terms “reasonable” and “necessary” require any restriction or restraint on
the right to be (1) in accordance with reason, not extreme or excessive, moderate, fair and
(2) absolutely needed: required. Reasonable & Necessary, Merriam-Webster’s, supra. We
use a “reasonable and necessary” test to determine whether an accused’s constitutional
right to a speedy trial was violated, Cotney, ¶ 19, 503 P.3d at 66 (in speedy trial cases,
“[t]he State has the burden to prove delays in bringing the defendant to trial are reasonable
and necessary” (quoting Fairbourn, ¶ 42, 465 P.3d at 424–25)), and the United States
Supreme Court applies it to decide whether a law impermissibly impairs a contract in
violation of the Contracts Clause of the United States Constitution. U.S. Tr. Co. of New
York v. New Jersey, 

, 

, 

 (1977) (stating a
state law which impairs a contract can only be sustained if it “was both reasonable and
necessary to serve the admittedly important purposes claimed by the [s]tate”). These
decisions, though arising in different contexts, are instructive with respect to the balancing
of interests that determines whether legislation is “reasonable and necessary.” As the
Supreme Court stated in U.S. Tr. Co. of New York:

              Legislation adjusting the rights and responsibilities of
              contracting parties must be upon reasonable conditions and of
              a character appropriate to the public purpose justifying its
              adoption. As is customary in reviewing economic and social
              regulation, however, courts properly defer to legislative


                                              54
              judgment as to the necessity and reasonableness of a particular
              measure.

U.S. Tr. Co. of New York, 

, 97 S.Ct. at 1518 (citations omitted). Deference
to legislative judgment in this case is consistent with subsection (c) of article 1, section 38
which gives “[t]he legislature [the authority to] determine reasonable and necessary”
restrictions on the right of competent adults to make their own health care decisions. Wyo.
Const. art. 1, § 38(c) (emphasis added). Given that the legislature has the ability to
“determine” reasonable and necessary restrictions—in other words, “to settle or decide by
choice of alternatives or possibilities”—subsection (c) necessarily gives the legislature
discretion in determining what is “reasonable and necessary.” Determine, Merriam-
Webster’s, supra.

[¶137] The Majority recognizes “[t]here are instances . . . when we do not apply strict
scrutiny to statutes which purportedly infringe on fundamental constitutional rights
because the express language of the constitution suggests a more appropriate test.”
Nevertheless, relying on Almada v. State, 

 (Wyo. 1999), White v. State, 

 (Wyo. 1989), and Mills, the Majority states “[o]ur precedent . . . teaches that
courts determine the level of constitutional scrutiny by considering the nature of the right
guaranteed in the constitution and the express language of the constitutional provision.”
(Emphasis added.)

[¶138] As explained above, a fundamental right does not, standing alone, trigger strict
scrutiny. The language of the constitution can (and here does) provide the standard of
review. See, e.g., Lange, 

, 141 S.Ct. at 2017 (“As [its] text makes clear,
‘the ultimate touchstone of the Fourth Amendment is “reasonableness.”’” (quoting
Brigham City, 

, 

)). See also U.S. Const. amend. VIII
(“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”); United States v. Bajakajian, 

, 

, 

 (1998) (the Eighth Amendment prohibits the
imposition of “excessive fines”; whether a fine is excessive turns on whether it is “grossly
disproportionate to the [gravity of the] offense”); Martinson v. State, 

,

 (Wyo. 2023) (“the Wyoming Constitution’s prohibition against cruel or
unusual punishment prohibits punishment that is grossly disproportional to the gravity of
the crime”).


[¶139] The cases relied upon by the Majority are not to the contrary. Almada involved a
right explicitly granted in the Wyoming Constitution—a fundamental right—yet we did
not apply strict scrutiny. We applied the level of scrutiny/standard of review delineated in
the constitutional provision. Almada, 994 P.2d at 308–10 (article 1, section 4 prohibits
“unreasonable” searches and seizures). Mills and White addressed challenges to statutes
as violative of equal protection and substantive due process. Mills, 

 (equal


                                              55
protection); White, 

 (equal protection and substantive due process).
Because the equal protection and due process provisions of the Wyoming Constitution do
not contain a level of scrutiny or standard of review, we look to the nature of the right to
determine the level of scrutiny. Mills, 837 P.2d at 52–54; White, 784 P.2d at 1315–17. We
are not applying the due process or equal protection provisions of the Wyoming
Constitution here.


[¶140] The right at issue in White was article 1, section 8 of the Wyoming Constitution
which states:

                All courts shall be open and every person for an injury done to
                person, reputation or property shall have justice administered
                without sale, denial or delay. Suits may be brought against the
                state in such manner and in such courts as the legislature may
                by law direct.

White, 

 (emphasis omitted) (quoting Wyo. Const. art. 1, § 8). In addressing
Mr. White’s challenge, we recognized that “[w]e have long held the second sentence of
[article 1, section 8] grants the legislature the power to determine the extent to which the
State and its subdivisions are subject to suit.” Id. (citing Troyer v. Dep’t of Health & Soc.
Servs., Div. of Vocational Rehab., 

, 162–63 (Wyo. 1986); Worthington v.
State, 

, 800–04 (Wyo. 1979); Hjorth Royalty Co. v. Trs. of Univ. of Wyo., 

, 

 (1924)). We held the power of the legislature to determine the extent
to which the State and its subdivisions are subject to suit “was established as a direct
limitation on a right of the people, as declared in the first sentence of Article 1, § 8.” 18 Id.
(emphasis added). The same can be said of article 1, section 38. Article 1, section 38(a)
grants a right to the people but article 1, section 38(c) directly limits that right, making it
subject to “reasonable and necessary” restrictions determined by the legislature.

[¶141] The Majority starts from a faulty premise—strict scrutiny applies because a
fundamental right is involved. It then strains the conjunctive force of “reasonable and
necessary” in subsection (c) and connects it with language addressing “undue

18
  We also found it
                noteworthy that the framers of the Wyoming Constitution did not include
                [the power of the legislature to determine the extent to which the State and
                its subdivisions are subject to suit] in Article 3 which generally sets out
                the powers, limitations on powers, and duties of the legislature. Rather,
                they chose to establish that power in the Declaration of Rights of Article
                1.
White, 

. The power of the legislature to determine “reasonable and necessary” restrictions
on the right of competent adults to make their own health care decisions is similarly contained in the
Declaration of Rights in article 1, not article 3.


                                                   56
governmental infringement” in subsection (d) to conclude challenges brought under article
1, section 38 are subject to strict scrutiny. It states:

                      These constitutional terms are easily harmonized with
              the strict scrutiny standard. Under strict scrutiny, the State
              must first show the statutory restriction on a woman’s
              fundamental right to make her own health care decisions is
              necessary to achieve a compelling state interest. This comports
              with the language of subsection (c), which requires the
              restriction to be necessary/absolutely needed to protect the
              health and welfare of Wyoming citizens. The second part of
              the strict scrutiny test requires the State to show the restriction
              provides the least onerous/restrictive means of furthering the
              compelling interest or, in other words, the restriction is
              narrowly tailored to achieve the interest. Subsection (c)’s
              requirements that the regulation be reasonable (not extreme or
              excessive) and necessary (absolutely needed) and subsection
              (d)’s requirement that the State’s action not unduly
              (excessively) infringe on the constitutional right to make health
              care decisions fit seamlessly into the second element of the
              strict scrutiny test. The statutory means of furthering the
              compelling state interest must be the least restrictive or
              onerous, i.e., may not unduly/excessively infringe, on the
              fundamental right. Subsection (d) also clearly places the
              burden on the State to show any statutory restriction does not
              unduly interfere with the fundamental right to make health care
              decisions.

I am unable to join that conclusion.

[¶142] Taking the Majority’s conclusion in reverse order, I first address subsection (d). I
part company with the Majority’s and the Concurring Opinion’s reliance on subsection (d)
to supply the standard of review. Subsection (d) directs the State of Wyoming to preserve
the rights in subsections (a) and (b) “from undue governmental infringement.” When the
provision is read as a whole, the most coherent interpretation is that “governmental
infringement” refers to action by governmental entities other than the State itself—most
naturally the federal government, but also tribal, county, or municipal governments.
Protection against overreach by our own state government is already structurally
guaranteed by the Wyoming Constitution’s separation of powers among the three branches:
the legislature enacts legislation, the judiciary checks unconstitutional legislation, the
executive may decline to enforce it, and every branch is independently bound by the
Declaration of Rights. Wyo. Const., art. 2, § 1; art. 3, art. 4, art. 5; see also 16A Am. Jur.
2d Constitutional Law, § 235 (2025) (“The separation-of-powers principle distributes the


                                              57
authority to make law to the legislature, the authority to execute law to the executive, and
the authority to interpret law to the judiciary.”). It would therefore be superfluous—and
borderline absurd—to interpret subsection (d) as commanding the State (including the
legislature) to protect citizens from the legislature’s own enactments. Cf. Seherr-Thoss v.
Teton Cnty. Bd. of Cnty. Comm’rs, 

, ¶ 19, 

 (Wyo. 2014) (we
strive to avoid interpretations that yield absurd results). Because the statutes before us
were enacted by the Wyoming Legislature, subsection (d) does not govern their validity or
prescribe the standard of review we must apply. 19

[¶143] Turning to subsection (c), the Majority correctly recognizes it allows the legislature
to determine “reasonable and necessary” restrictions on the right of competent adults to
make their own health care decisions, and both conditions—reasonable and necessary—
must be satisfied. It decides both conditions “fit seamlessly” into strict scrutiny’s demand
that the restriction be the least onerous/restrictive means available (the second element of
strict scrutiny). The plain meanings of the terms “reasonable” and “necessary” have no
resemblance to the second element of the strict scrutiny test. To say otherwise ignores the
word “reasonable” in subsection (c), which requires restrictions to be in accordance with
reason, fair, moderate, and not extreme or excessive. This requirement is incompatible
with the strict scrutiny’s requirement that the restriction be the least onerous/restrictive
means of achieving a compelling state interest or, stated differently, that the restriction be
narrowly tailored to achieve that interest. While the Majority faults the State for relying
on the rational basis test because that test does not give effect to the word “necessary” in
article 1, section 38, the Majority’s interpretation—that “reasonable and necessary”
comports with the strict scrutiny test—focuses on the word “necessary” but fails to give

19
   The Majority and the Concurring Opinion also read subsection (d) as placing the burden of proof on the
State to prove a statute passes constitutional muster under article 1, section 38. Nothing in subsection (d)
speaks to the burden of proof. The Majority places the burden on the State because it concludes strict
scrutiny applies. Strict scrutiny does not apply. Both the Majority and the Concurring Opinion recognize
“the State” includes all three branches of state government but read “the State” as “the executive branch”
for purposes of interpreting subsection (d) as assigning “the State” the burden of proof. Had the legislature
intended subsection (d) to only apply to the executive branch, it would have said so as it did in subsection
(c) when it referred only to “the legislature.” Cf. Leal v. State ex rel. Dep’t of Workforce Servs., Workers’
Comp. Div., 

, 

 (Wyo. 2024) (“We are guided by the full text of the
statute, paying attention to its internal structure and the functional relation between the parts and the whole.
Each word of a statute is to be afforded meaning, with none rendered superfluous. . . . We presume that the
legislature acts intentionally when it uses particular language in one statute, but not in another.” (quoting
Seherr-Thoss, ¶¶ 19–20, 

)). The question of who has the burden of showing a statute is a
reasonable and necessary restriction on the right of competent adults to make their own health care decisions
is complicated and not clearly addressed in our precedent. I need not decide that issue here. As I will
explain, the abortion statutes set forth the legislature’s purposes for adopting them and the public record
shows the number of abortions performed in the state each year. In this case, these matters, combined with
the deference we owe the legislature under article 1, section 38(c), are sufficient to decide that the legislature
could determine the abortion statutes are a reasonable and necessary restriction on a pregnant woman’s
right to make her own health care decisions to preserve prenatal life at all stages of development.



                                                       58
effect to the word “reasonable.” Both are required, and to ignore either is contrary to our
rules of constitutional interpretation. Powers, ¶ 9, 

 (“Our cases explain . . .
that the constitution should not be interpreted to render any portion of it meaningless, with
all portions of it read in pari materia and every word, clause and sentence considered so
that no part will be inoperative or superfluous.” (emphasis added) (quoting Geringer, 

)). Strict scrutiny also cannot be reconciled with subsection (c)’s deliberate
grant of discretion to the legislature to “determine” reasonable and necessary restrictions
on the right to make health care decisions. Campbell Cnty. Sch. Dist. v. State, 

 (Wyo. 1995), as clarified on denial of reh’g (Dec. 6, 1995) (recognizing that
the presumption in favor of constitutional validity does not apply when applying strict
scrutiny).

[¶144] According to the Majority:


                   No part of [article] 1, [section] 38 expresses an intention to
                   abrogate our long-standing means for testing the
                   constitutionality of statutes or to disallow use of the strict
                   scrutiny standard to protect the fundamental right granted
                   therein. This is particularly poignant given the legislature
                   knew, when proposing the language of [article] 1, [section] 38
                   to the people: 1) it was creating a new constitutional right, 2)
                   separation of powers principles assign courts the duty to
                   determine the applicable standard to test the constitutionality
                   of statutes, 3) courts routinely apply strict scrutiny to statutes
                   restricting fundamental rights, and 4) the plain language of
                   [article] 1, [section] 38, including the terms “necessary” and
                   “undue governmental infringement,” would signal a
                   heightened level of scrutiny. 20

The Majority’s analysis proceeds as if the voters were incapable of understanding the
amendment they ratified—one that explicitly balances the fundamental right with
“reasonable and necessary” restrictions determined by the legislature. It then addresses the
amendment as if it was a statute and not a constitutional amendment. Article 1, section 38
was ratified by Wyoming voters. The people—not the legislature—determined the scope
of protection their new right would receive. Although the legislature may not have the
power by statute to abrogate our standard of review, the people, through the constitutional
amendment process, do have that power:

                   The sovereignty resides in the people, although, by written
                   constitutions, they have delegated the exercise of sovereign

20
     The Majority again ignores the word “reasonable” in article 1, section 38(c).


                                                      59
                 powers to several departments. The people “retain in their own
                 hands a power to control the governments they create as far as
                 they have thought needful to do so; and the three departments
                 are responsible to and subject to be ordered, directed, changed,
                 or abolished by them. But this control and direction must be
                 exercised in the legitimate mode previously agreed upon.”

Rasmussen, 

, 

 (quoting Thomas M. Cooley, A Treatise on the
Constitutional Limitations Which Rest Upon the Legislative Power of the States of the
American Union, *598 (4th ed. 1878)). The people, through article 1, section 38(c), have
dictated our standard of review. By concluding subsection (c) “comports” with the strict
scrutiny standard, the Majority not only deprives the word “reasonable” in subsection (c)
of independent force but also displaces the people’s deliberate choice of a more deferential,
legislatively centered standard with a judicial test the voters did not adopt. 21

21
   Although the practical consequences of a ruling are not dispositive in determining the appropriate level
of scrutiny—or in disregarding an otherwise applicable constitutional standard—the Majority’s
acknowledgment that article 1, section 38 extends to the full scope of health care decision-making carries
profound implications beyond the context of abortion. The Majority’s holding—that any restriction on the
right of competent adults to make their own health care decisions is subject to strict scrutiny—logically
extends far beyond abortion and places virtually the entire body of Wyoming health-care regulation in
constitutional jeopardy. See Burson v. Freeman, 

, 

, 

(1992) (“[W]e readily acknowledge that a law rarely survives such scrutiny[.]”); Campbell Cnty. Sch. Dist.,

 (recognizing that the presumption in favor of constitutional validity does not apply when
applying strict scrutiny).      Among the ordinary, long-accepted regulations now presumptively
unconstitutional (unless the State carries its heavy burden of proving the subject regulation is both necessary
to achieve a compelling state interest and the least restrictive means of achieving that interest) are:
    • mandatory vaccination or immunization requirements for school/daycare attendance (

; 21-4-309; Wyo. Dep’t of Health Admin. Rules, Mandatory Immunizations for
         Children Attending Schools and Child Caring Facilities, ch. 3);
    • mandatory disease/infection reporting (smallpox, cholera, AIDS, syphilis, etc.) and contact-
         tracing/quarantine authority (

, 35-4-104, 35-4-107, 35-4-108, 35-4-
         113, 35-4-130, 35-4-132, 35-4-133; Wyo. Dep’t of Health Admin. Rules, Rules and Regulations
         for Reportable Diseases and Conditions, chs. 1, 11; Sexually Transmitted Diseases, chs. 1, 2);
    • controlled substances prescribing limits and prohibitions, mandatory Prescription Drug Monitoring
         Program checks, and opioid quantity/duration caps (

 (Advanced
         Practice Registered Nurse Compact) Article III(f)), 33-23-102, 33-24-136, 33-26-510(c), 35-7-
         1031, Board of Pharmacy Rules, Commissioner of Drugs & Substances Control, chs. 7, 8);
    • substance abuse control plan for the prevention, early intervention, and treatment of alcohol and
         controlled substance abuse (

(a), 9-2-2701; Wyo. Dep’t of Health
         Admin. Rules, Mental Health and Substance Use Disorder Services, ch. 2);
    • involuntary mental-health commitment and forced-treatment statutes for persons dangerous to self
         or others (Wyo. Stat. §§ 25-10-109 through -111);
    • health care facility licensure requirements (Wyo. Stat. §§ 35-2-901 through -914);
    • end-of-life treatment restrictions and Provider Orders for Life Sustaining Treatment Program Act
         (

 through -509)[.]



                                                     60
[¶145] In sum, to pass constitutional muster under article 1, section 38, a restriction on the
right to make health care decisions must be (1) in accordance with reason, moderate, fair,
not extreme or excessive (reasonable) and (2) absolutely needed: required (necessary) for
the protection of the people’s health and general welfare or for the accomplishment of other
purposes set forth in the Wyoming Constitution. By giving the legislature the power to
“determine”—that is, to settle or decide by choice of alternatives or possibilities—what is
reasonable and necessary, the people necessarily contemplated judicial deference to the
legislature’s judgment on both reasonableness and necessity. I now turn to the application
of these principles to the abortion statutes.

B.      Application of Article 1, Section 38 to the Abortion Statutes

[¶146] Applying strict scrutiny, the Majority determines the abortion statutes violate article
1, section 38. I disagree that the abortion statutes violate article 1, section 38. The abortion
statutes constitute a “reasonable and necessary” restriction by the legislature on the right
of a pregnant woman to make her own health care decisions for the purpose of preserving
prenatal life at all stages of development.

[¶147] The abortion statutes contain the legislature’s finding that an unborn baby is a
member of the species homo sapiens from conception and therefore a member of the human
race under article 1, section 2 of the Wyoming Constitution. 

-
121(a)(i). See also Wyo. Const. art. 1, § 2 (“In their inherent right to life, liberty and the
pursuit of happiness, all members of the human race are equal.”). One of the stated
purposes of the abortion statutes is to respect and to preserve prenatal life at all stages of
development. 

(a)(vi).


[¶148] To determine whether the abortion statutes constitute a “reasonable and necessary”
restriction on a pregnant woman’s right to make her own health care decisions to respect
and to preserve prenatal life at all stages of development, we must first determine what
restrictions the statutes impose on the right.


[¶149] When interpreting a statute, we apply the same rules we use to interpret the
constitution. Cantrell, ¶ 6, 

. “[O]ur goal is to give effect to the intent of

These are not fringe or hypothetical laws; they are the core framework under which the practice of medicine
and public health have operated in Wyoming for decades. Unless article 1, section 38 is amended or today’s
decision is overruled, virtually every health-care regulation in Wyoming is now on constitutional life
support, inviting years of litigation, enormous defense costs, and profound uncertainty for providers,
schools, employers, and public-health officials. This result is precisely what the voters avoided in 2012
when they empowered the legislature—not this Court—to “determine reasonable and necessary
restrictions” on the rights they created.


                                                   61
the legislature, and we ‘attempt to determine the legislature’s intent based primarily on the
plain and ordinary meaning of the words used in the statute.’” PacifiCorp, Inc. v. Dep’t of
Revenue, State, 

, 

 (Wyo. 2017) (quoting Fugle v.
Sublette Cnty. Sch. Dist. No. 9, 

, 

 (Wyo. 2015) (quoting
Krenning v. Heart Mountain Irr. Dist., 

, 

 (Wyo. 2009))).
We also “construe each statutory provision in pari materia, giving effect to every word,
clause, and sentence according to their arrangement and connection.” PacifiCorp, ¶ 10,
401 P.3d at 908 (quoting Nicodemus v. Lampert, 

, 

(Wyo. 2014)).


[¶150] The Life Act prohibits a person from knowingly performing an abortion on a
pregnant woman. 

. Any person (with the exception of the
pregnant woman upon whom the abortion is performed) who violates § 35-6-123 is guilty
of a felony. 

. In addition to this criminal penalty, the Life Act
calls for the State Board of Medicine to immediately revoke, after due process, the license
of “a physician or any other professionally licensed person who intentionally, knowingly
or recklessly violates W.S. 35-6-123.” 

(a) (LexisNexis 2025).
“No civil penalty shall be assessed against a pregnant woman upon whom an abortion is
performed or attempted for a violation of [the Life Act].” 

(b).
The Life Act also allows a pregnant woman upon whom an abortion has been performed,
induced, or coerced in violation of the Life Act to bring a civil action for damages against
the violator and allows her, the district attorney, or the attorney general to seek injunctive
relief against the violator. Wyo. Stat. Ann. § 35-6-127.

[¶151] While the Life Act prohibits a person from knowingly performing an abortion on a
pregnant woman, it specifically excludes from the definition of abortion the termination of
a pregnancy if the termination is done with the intent to (1) “[s]ave the life or preserve the
health of the unborn baby”; (2) “[r]emove a dead unborn baby caused by spontaneous
abortion or intrauterine fetal demise”; (3) “[t]reat a woman for an ectopic pregnancy”; or
(4) “[t]reat a woman for cancer or another disease that requires medical treatment which
treatment may be fatal or harmful to the unborn baby.” 

-
122(a)(i)(A)–(D). The Life Act also provides exceptions to the prohibition on abortion (1)
“to prevent the death of the pregnant woman [or] a substantial risk of death for the pregnant
woman because of a physical condition or the serious and permanent impairment of a life-
sustaining organ of a pregnant woman,” provided that the physician first “makes all
reasonable medical efforts under the circumstances to preserve both the life of the pregnant
woman and the life of the unborn baby in a manner consistent with reasonable medical
judgment”; (2) when the provision of medical treatment to a pregnant woman “results in
the accidental or unintentional injury to, or the death of, an unborn baby”; (3) when the
pregnancy is the result of incest as defined by 

 or sexual assault
as defined by 

; and (4) “when in the physician’s reasonable
medical judgment, there is a substantial likelihood that the unborn baby has a lethal fetal


                                             62
anomaly [as defined by 

(a)(vi)] or the pregnancy is determined
to be a molar pregnancy.” 

(a)(i)–(iv). The Life Act does not
prohibit “the use, sale, prescription or administration of a contraceptive measure, drug,
chemical or device” so long as the contraceptive measure “is used, sold, prescribed or
administered in accordance with manufacturer instructions and is not used, sold, prescribed
or administered with the specific intent to cause or induce an abortion.” 

(b).

[¶152] The Chemical Abortion statute makes it a misdemeanor “to prescribe, dispense,
distribute, sell or use any drug for the purpose of procuring or performing an abortion on
any person” but exempts “[a] woman upon whom a chemical abortion is performed or
attempted” from this criminal penalty. 

(a), (c), (d). The
prohibition on chemical abortions does not apply to (1) “[t]he sale, use, prescription or
administration of any contraceptive agent administered before conception or before
pregnancy can be confirmed through conventional medical testing;” (2) “[t]he treatment of
a natural miscarriage according to currently accepted medical guidelines;” or (3)
“[t]reatment necessary to preserve the woman from an imminent peril that substantially
endangers her life or health, according to appropriate medical judgment, or the pregnancy
is the result of incest as defined by [

] or sexual assault as defined
by [

].” 

(b)(i)–(iii).


[¶153] In plain terms, abortion is restricted (and can be prohibited) only in situations where
none of the listed exceptions apply—such as elective procedures unrelated to saving the
baby’s or mother’s life, treating serious medical conditions, or addressing pregnancies
resulting from incest/sexual assault. The statutes allow abortions to protect the woman’s
life and health. In other words, the abortion statutes target only elective abortions that do
not qualify under a listed exception. This targeted approach is the focus of our analysis—
whether the legislature could determine these restrictions on a woman’s right to make
health care decisions are reasonable and necessary to advance the state’s interest in
protecting prenatal life at all stages of development.


[¶154] By statute, all licensed practitioners must report abortions performed or prescribed
in Wyoming to the state health officer, and the office of vital record services is required to
prepare and issue a public report with this information. See 

through -132 (formerly 

 through -108). The record reveals
that 91 abortions were reported in 2020, 103 abortions were reported in 2021, and 200
abortions were reported in 2022. For those three years, all but two abortions were
performed at a gestational age of 10 weeks or less. The gestational age of the other two
was unknown. Based on this information, the legislature could, in its discretion, determine
that the abortion statutes were reasonable and necessary to preserve prenatal life at all
stages of development, from conception to birth.


                                             63
[¶155] The plaintiffs do not dispute that the preservation of prenatal life is a legitimate basis
to regulate health care but argue such interest “does not become compelling until after
viability.” The record reflects there are many differing views on the question of when a
fetus achieves viability. When a fetus is entitled to legal protection is quintessentially a
policy judgment about the relative weight of competing interests. In our constitutional
system, such judgments belong in the first instance to the people’s elected representatives,
who must answer to the people at the ballot box. The Wyoming Legislature decided
prenatal life is entitled to protection from conception, and we are not at liberty to second-
guess the wisdom or soundness of that policy judgment. 

(a)(i),
(v), (vi); Starrett v. State, 

, 

 (Wyo. 2012) (“[O]ur
legislature is the policy-making branch of our state government. . . . Members of this Court
are vested with the authority to interpret . . . statute[s]; but we do not possess either the
expertise or the prerogative to make policy judgments. Those judgments are entrusted to
our state’s elected leaders, who can be removed from office on election day if our state’s
citizens disagree with those policy judgments. It does not fall to the courts to protect the
citizens from the consequences of their political choices.”). Because strict scrutiny does
not apply, the State need not show the abortion statutes are the least restrictive means of
furthering a compelling state interest.

[¶156] Next, the plaintiffs advance contradictory critiques of whether the abortion statutes
are “reasonable and necessary” to accomplish the legislature’s objective of preserving
prenatal life at all stages of development. First, they contend the statutes are over-inclusive
because they prohibit abortions even when the fetus has no chance of survival due to a
lethal fetal anomaly. 22 At the same time, they assert the abortion statutes are under-
inclusive in terms of preserving prenatal life as they ban multi-fetal reductions, a procedure
used to remove one or more fetuses in a pregnancy involving three or more fetuses to
increase the chance that the remaining fetuses will survive. By prohibiting multi-fetal
reductions, they claim the abortion statutes reduce rather than promote the preservation of


22
  While the plaintiffs recognize the abortion statutes contain an exception for lethal fetal anomalies, they
argue the exception is illusory as the exception applies only if there is a “substantial likelihood” that the
anomaly will result in the baby’s death within “hours” of birth and the evidence showed it is impossible to
know whether a fetal anomaly will result in the baby’s death within hours of birth, as opposed to a few days
or weeks. As a result, they claim there are no fetal anomalies that could result in death after birth that will
qualify for the exception. I disagree. The Life Act states it will not be unlawful for a licensed physician to
“[p]erform an abortion on a woman when in the physician’s reasonable medical judgment, there is a
substantial likelihood that the unborn baby has a lethal fetal anomaly . . . .” 

-
124(a)(iv). “‘Lethal fetal anomaly’ means a fetal condition diagnosed before birth and if the pregnancy
results in a live birth there is a substantial likelihood of death of the child within hours of the child’s birth[.]”

(a)(vi) (emphasis added). The “substantial likelihood of death of the child
within hours of the child’s birth” does not apply to all lethal fetal anomalies—only those where the
pregnancy will result in a live birth.


                                                        64
prenatal life. 23 The plaintiffs also maintain the exceptions to the abortion ban to protect
the health of the pregnant woman and, in the circumstance when the pregnancy is the result
of incest or sexual assault, defeat the notion that the abortion statutes were intended to
preserve all prenatal life.


[¶157] Arguably, in its effort to preserve prenatal life at all stages of development, the State
could have attempted to prohibit all abortions and had it done so argued such prohibition
was “necessary.” Article 1, section 38 requires restrictions on the right to make health care
decisions to be not only “necessary” but “reasonable.” In the abortion statutes, the
legislature allowed exceptions on the abortion ban to save the baby’s life, to save the
mother’s life, to treat serious medical conditions, and to address pregnancies resulting from
incest/sexual assault. These exceptions respect a pregnant woman’s health care choices
while allowing the regulation of non-essential procedures.


[¶158] Perfection is not required under the “reasonable and necessary” standard adopted
by the people in article 1, section 38(c). Even under the more demanding strict-scrutiny
framework, a law “need not address all aspects of a problem in one fell swoop;
policymakers may focus on their most pressing concerns.” Williams-Yulee v. Fla. Bar, 

, 

, 

 (2015). The legislature’s judgment
to preserve prenatal life from conception, while carving out exceptions it deemed
reasonable and necessary (including for lethal fetal anomalies, maternal life/health, and
incest/sexual assault), falls well within the discretion the people expressly granted it. The
legislature has implemented statutes that pass constitutional muster by establishing a
reasonable and necessary method to achieve the preservation of prenatal life.


[¶159] Because article 1, section 38 allows the legislature to establish “reasonable and
necessary” restrictions on the right to make health care decisions to protect the safety and
general welfare of the people or to accomplish other purposes of the Wyoming
Constitution, and the abortion statutes reflect the legislature’s policy choice of preserving
prenatal life at all stages of development, but recognize exceptions in a variety of
circumstances, they constitute a reasonable and necessary restriction and do not violate
article 1, section 38. I would reverse the decision of the district court.

23
  The plaintiffs misread the abortion statutes. While the statutes define abortion as including multi-fetal
reductions when done with knowledge that the termination by those means will reasonably likely cause the
death of an unborn baby, they specifically exclude multi-fetal reductions from the definition of abortion if
they are done with the intent to save the life or preserve the health of the unborn baby, remove a dead
unborn baby caused by spontaneous abortion or intrauterine fetal demise, or treat a woman for an ectopic
pregnancy, cancer, or another disease that requires medical treatment which treatment may be fatal or
harmful to the unborn baby. 

(a)(i)(A)–(D). Multi-fetal reduction procedures
are also not prohibited if they fit within the exceptions contained in § 35-6-124(a)(i)–(iv).


                                                    65