Jonathan Lange: The Supreme Court Owes Us An Explanation

Wyoming has protected unborn citizens since its inception. What compelling interest could possibly trump that fundamental right? The Wyoming Supreme Court owes us an explanation.

As early as 1869, decades before becoming the Equality State, Wyoming gave an unborn baby’s life protection equal to that of any other citizen. The territorial law prohibited doctors and snake-oil salesmen alike from administering medicine “with the intention to procure a miscarriage of any woman then being with child.”

Violators of the Hippocratic Oath faced a penalty of “not less than three years in the penitentiary, and [to be] fined in a sum not exceeding one thousand dollars” unless the procedure was done “with intent to save the life of such woman, or to prevent serious and permanent bodily injury to her.”

Two decades later, not only did that territorial law become state law, but the fundamental right behind it was enshrined in the Wyoming Constitution. “In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal” (Art. 1, Sec. 2).

Then, after a century of protecting her people equally, the Roe Court created out of thin air a new “constitutional right to abortion.” As a result, the federal courts - being neither elected nor a state authority - illegitimately prohibited the State of Wyoming from protecting the most basic right of its citizens.

For nearly 50 years, this voodoo jurisprudence robbed babies of their rights and deprived Wyoming of untold cowboys and cowgirls. But Wyoming’s elected Legislature refused to cede the constitutional rights of its citizens to federal overreach.

In time, it passed the “Trigger Bill.” This legislation simply stated that when and if the U.S. Supreme Court came to its senses and overruled Roe v. Wade, Wyoming would return immediately to protecting the fundamental rights of its citizens.

That law was triggered and went into effect in the summer of 2022, when the United States Supreme Court finally admitted that the “Constitution does not confer a right to abortion.”

No sooner had it been enacted than it was tied up in the courts. On Jan. 6, Wyoming’s Supreme Court effectively overruled the right of Wyoming to enforce its own Constitution.

The Court did not dispute any of the above history. Rather, it claimed that a new constitutional right - one that did not exist until 2012 - effectively replaced Roe’s “right to an abortion” with “an adult’s right to make his or her own healthcare decisions.”

The court argued that this right is a “fundamental right” because it “was put in a section of the Wyoming Constitution called the ‘Declaration of Rights.’”

Based on this judgment that the right to make healthcare decisions is a “fundamental right,” the Court rejected the Constitution’s own language allowing the Legislature to enact “reasonable and necessary restrictions” of that right (Art. 1, Sec. 38(c). Instead, it imposed a “strict scrutiny” standard.

Strict scrutiny requires the government to prove that “the law serves a compelling state interest, is narrowly tailored to achieve that interest, and uses the least restrictive means available” (legalclarity.org).

Of course, if every right listed in the “Declaration of Rights” is, by definition, a fundamental right, then the right to life for every member of the human race is also a fundamental right.

Why, then, did the Court impose strict scrutiny on the newest right in our constitution, while failing even to mention the fundamental right that is both older and higher ranking?

Shouldn't the court’s denial of a baby’s fundamental right to life need to satisfy the strict scrutiny standard?

Nowhere in its Jan. 6 ruling did the court either recognize this fact or explain why strict scrutiny should not apply. This utter blindness to the fundamental right to life simply must be corrected.

On January 20^th, Special Assistant Attorney General Jay Jerde filed a petition with the Wyoming Supreme Court to rehear Wyoming v. Johnson. In it, the A.G.’s office asked the Court to look at four specific errors of law that it made in applying “strict scrutiny” to Wyoming’s abortion law.

That section of the petition is great. But my favorite part of the petition is the last part. There, the Attorney General details how, “The majority did not address whether an unborn baby from conception has a constitutionally protected right to life under article 1, section 2 of the Wyoming Constitution.”

“When all is said and done,” writes Jerde, “article 1, section 2 either protects the life of an unborn baby or it does not. If section 2 protects the life of an unborn baby, then this Court must account for that constitutional right in its merits analysis.”

The Court owes Wyoming an explanation.

Jonathan Lange is a Lutheran Church—Missouri Synod pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. Follow his blog at https://jonathanlange.substack.com/. Email: JLange64@protonmail.com