Tom Lubnau: How Sloppy Writing Cripples Wyoming’s New Abortion Law, Part 2

A prior column detailed the language of Wyoming’s abortion statute. This column does not discuss the Wyoming Constitutional issues which prompted a judge to block Wyoming’s new abortion laws from being enforced.

Instead, this column outlines some of the unintended consequences of the new abortion ban, titled the Life Is A Human Right Act, due to sloppy draftsmanship and not understanding the rest of Wyoming law.

The first issue is a conflict between the Life Act’s proclamation that fetuses are human beings at conception, and a different definition also etched into Wyoming law. In the Life Act, “Unborn baby” or “unborn human being” means an individual living member of the species homo sapiens throughout the entire embryonic and fetal stages from fertilization to full gestation and childbirth.” 

Yet, another Wyoming statute defines “unborn child” as a member of the species homo sapiens, at any state of development, who is carried in a womb. 

The differences in definitions have some interesting consequences. Under the Life Act, a child conceived through in vitro fertilization is a human being with full rights and privileges of a human being. Under the old statute, the child had to be carried in the womb to be an unborn child. The Life Act’s distinction appears to treat frozen embryos, after conception, as human beings with full rights and privileges under the law.

A myriad of unanswered questions arise.

If frozen embryos die, is it manslaughter under Wyoming’s criminal statutes? If the embryos are never implanted, is it child neglect under Wyoming’s child protection statute? If the parents of the embryos die, do the frozen embryos inherit part of their parent’s estate?  Do the embryos have to be born to inherit, or do they have the full rights and privileges to inherit as frozen embryos? 

All of these issues could be addressed with careful statutory drafting, but were not. If for some reason the embryos die, under this statute as written, the in vitro fertilization facility would potentially be liable for criminal, civil and licensure penalties. The unintended consequence of this statutory change makes in vitro fertilization in Wyoming unfeasible under the law. 

The second issue deals with the language of the criminal statute. The problematic operative language of the criminal statute is to use or employ means upon a pregnant woman with the specific intent of abetting an abortion. The term “means” is undefined in the statute. The Oxford English Dictionary defines “means” as an action or system by which a result is brought about.

Does the statute mean that if a practitioner refers a patient to an out-of-state provider in a state where abortion is legal, that the referring practitioner can be prosecuted for abetting an abortion in Wyoming for simply making the referral?

The third issue revolves around the rights of the mother and the rights of the fetus. If a woman presents to a hospital after having tried to self-inflict an abortion because none are available in Wyoming, can the State of Wyoming take the woman into custody and hold her until she delivers the baby?

Wyoming’s civil commitment statute, commonly known as Title 25, says that if a person is a danger to herself or others, that person can be held under the civil commitment law. Since the fetus is a person with full rights under the law, the fetus falls within the category to make the mother a “danger to others.”

A physician cannot “abet” an abortion, and if releasing the mother means she will try again, the physician’s choice is to either take custody of the woman or release the woman and face criminal charges for abetting the abortion.

If the civil commitment matter goes to a hearing, then a judge will decide to keep or release the pregnant woman from the state’s custody based upon whether she’s a danger to herself or others. Can she be held as a gestational vehicle until the baby is delivered?

The fourth issue is, the Life Act is widely understood to provide an exception to the abortion prohibition to save the life of the mother. But when you dig into the actual exceptions, the “life of the mother” exception only covers the period before the fetus is viable.

One could argue there’s no need for an exception once the fetus is viable, because it can then simply be delivered. But when you look at the definition of “abortion” in the Life Act, it includes anything done to terminate a pregnancy “with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn baby.” 

So, if the procedure is post-viability (for which there’s no good standard), and it’s likely the unborn baby will die as a result of being delivered early, it’s still an abortion and there’s no exception for the mother’s life.

There are other examples of statutory vagueness like the definition of “lethal fetal anomaly,” for instance, which requires that there be a substantial likelihood of death of the child within hours of the child’s birth. How many hours? Six? 24? 48? 72? How could a doctor ever use that standard to determine whether a fetal anomaly was “lethal”?

Other red states use three months, including Indiana and Nebraska. If the intent was to make the standard so vague that everyone is afraid to use it, then the goal is achieved.  But if the goal was to make a workable law, however strict, that can be applied in real life, then the Legislature failed miserably.

Our legislature uses words to craft laws. Those words mean something. In this case, the statute is long on philosophy, and very short on consideration and workability.  Careful draftsmanship could have avoided all of these issues.

And what is the ultimate consequence of putting a word salad like this on the books? Obstetrics/gynecology practitioners who know about this statute are thinking long and hard about establishing a practice in Wyoming with so many undefined pitfalls.

When these statutes reach the courts, as they already have, you will hear legislators claim it is “activist judges” who are asking hard questions about these statutes.

The truth is legislators long on campaign slogans and short on legislative draftsmanship did not pass cogent laws. 

Legislators have a job to do. That job is crafting laws that make sense – laws that we can all read and understand without having to ask questions as to what they mean. An ineffective unclear statute full of loopholes and questions does no one any good.

We deserve better.

Tom Lubnau served in the Wyoming Legislature from 2004 - 2015 and is a former Speaker of the House.  Thanks to attorney Nick Healey for his input in drafting this column.

He can be reached at: YourInputAppreciated@gmail.com