One year after Dobbs decision, abortion remains legal in Wyoming

SHERIDAN – Sheridan City Councilor Andrew Patceg begins each regular meeting reciting the Pledge of Allegiance, with an addition.

“...With liberty and justice for all — born and unborn,” he says.

Patceg isn’t the first to say those three extra words; he said he first heard it from Wyoming State Rep. Mark Jennings, R-Sheridan. The phrase demonstrates the amount of respect he has for everyone, Patceg said.

“When I finish up the Pledge of Allegiance and I say, ‘with liberty and justice for all, born and unborn,’ all I’m simply saying is that I respect the right to life for both those people that are already born and those that have yet to be born,” Patceg said. “For me, the phrase is about giving respect to everyone – and when I say everyone, I mean no matter their size or level of development or the environment they live in or the degree of dependency.”

The earliest instance of adding “born and unborn” at the end of the Pledge of Allegiance was reported by The Associated Press Oct. 11, 1990. While slightly different, Lorain Catholic High School, in Lorain, Ohio, “revised the Pledge of Allegiance to say ‘with liberty and justice for the born and unborn,’” as reported by the AP.

Wyomingites who utter the phrase “born and unborn” at the end of the Pledge of Allegiance trace its Wyoming origins to former Wyoming Rep. Marti Halverson, R-Jackson. Halverson said she uses the phrase as a reminder.

“To remind people and to remind ourselves that liberty and justice for all includes our preborn Wyoming neighbors,” Halverson said.

Halverson said she started the born and unborn caucus, a tongue-in-cheek caucus, in the Wyoming Legislature that comprised fellow legislators who added “born and unborn,” at the end of the Pledge of Allegiance. Halverson said the caucus was rather informal.

The phrase is not without its criticism, though, especially among groups that support a person’s right to choose whether to receive an abortion.

“I think it’s a real shame that in this pledge that is supposed to affirm the indivisibility of our nation, the forced birthers insert an extraneous statement that’s guaranteed to divide, and not unify, our nation,” said Christine Lichtenfels, a director for Chelsea’s Fund, an organization that supports abortion access in Wyoming.

Lichtenfels also said individuals who add the phrase “born and unborn,” to the end of the Pledge of Allegiance violate the U.S. Flag Code; 4 U.S. Code § 4 lays out the Pledge of Allegiance and how it should be delivered. Nowhere in the code are the words “born and unborn,” mentioned.

For nearly 50 years, the protection of the unborn was left to a decision between a mother and their medical provider and was a right guaranteed in the U.S. Constitution, according to the U.S. Supreme Court’s decision in Roe v. Wade in 1973.

The U.S. Supreme Court opened the door to allow a state to determine whether abortion is permitted within its borders with a decision released June 24, 2022. The court’s decision in Dobbs v. Jackson Women’s Health Organization was a landmark case that eliminated the constitutional right to choose whether to have an abortion, a right that had been established in 1973 by the U.S. Supreme Court’s decision in Roe v. Wade.

“The Dobbs vs Jackson decision simply means it is in the hands of the states and the voters will decide the outcome in Wyoming,” Legacy Pregnancy Center Executive Director Maureen Metcalf said in an email.

Wyoming, according to the Guttmacher Institute, was the final of 13 states to pass a trigger bill allowing an abortion ban to be enacted very quickly following the release of a U.S. Supreme Court decision overturning Roe v. Wade.

House Bill 92 was passed during the 2022 Wyoming Legislative session, prohibiting abortion in the state. The bill earned final approval from both the House and Senate March 10, 2022 and was signed by Gov. Mark Gordon March 15, 2022.

The law prohibits abortion in any instance except to save the mother from serious risk of death or irreversible physical impairment.

The ban officially came into effect July 27, 2022 after Gordon, on the advice of Attorney General Bridget Hill, affirmed to the Secretary of State that the U.S. Supreme Court had made a decision overturning Roe v. Wade. Within hours of the ban coming into effect, Teton County District Judge Melissa Owens allowed a restraining order suspending the law, as reported by The Associated Press in August 2022.

The Wyoming Legislature passed House Bill 152, the Life is a Human Right Act, March 2 and Gov. Mark Gordon allowed it to go into law without his signature March 17, because it seemed “to be the will of the Legislature,” as reported by Wyoming Tribune Eagle at the time. Rep. Rachel Rodriguez-Williams, R-Cody, sponsored the bill and said it “is specifically focused on the destruction of innocent life.”

“We tried the previous year with the trigger bill, which got hung up in court,” bill co-sponsor Rep. Chip Neiman, R-Hulett, said. “So, we wanted to move (the Life is a Human Right Act) along as quickly as possible and our thoughts were the Life is a Human Right Act would expedite that so that we could meet the wishes of our citizens in prohibiting elective abortions.”

According to the Pew Research Center, 49% of 316 Wyoming adults surveyed said abortion should be illegal in all or most cases; 48% said abortion should be legal in all or most cases and the remaining 3% didn’t know.

HB 152 expanded on the trigger law passed by the Wyoming Legislature in 2022 and laid out the definition of abortion for the legislation, offering exceptions to the law and potential civil and criminal penalties for abortion providers, the only people or person punishable under the act. A violation would be punishable by a fine of up to $20,000, a prison sentence of up to five years, or both.

Wyoming became the first state to explicitly ban medication abortions in March. Senate File 109 outlaws the prescription of drugs to perform an abortion. The file was signed by Gordon March 17 and was scheduled to go into effect July 1. The Life is a Human Right Act was blocked by a temporary injunction by Judge Owens March 22. Judge Owens also ruled Thursday the medication abortion ban would be suspended as a challenge to the law proceeds in court.

“The court relies on the irreparable harm test in deciding if the laws should be stayed. She has written that the plaintiffs are likely to suffer irreparable harm if the law goes into effect while the litigation is underway,” Rep. Art Washut, R-Casper, said. “It would seem that the babies who are aborted during this time are suffering a much greater and permanent irreparable harm, but they have no voice in these proceedings. Pro-life people and their elected representatives want the babies to be factored into the discussion.”

Rep. Martha Lawley, R-Worland said she thought the laws should have been allowed to go into effect as court challenges proceeded.

“I would say that I’m personally disappointed that both of those have been stayed by the court,” Rep. Martha Lawley, R-Worland, said. “I believe as a lawyer that even though people have challenged the law, I don’t believe it was necessary to stay the law while that challenge went forward.”

Chelsea’s Fund is part of both challenges to the laws; both blocks remain as the lawsuits proceed.

“We are challenging the two new abortion bans because we do not think that that allows for liberty, for people to make very private decisions about their own body and to control their own body,” Lichtenfels said. “The freedom and authority over your own body, that’s the core of liberty, right? With these abortion bans, Wyoming is not providing for that liberty or justice.”

Co-sponsors of the Life is a Human Right Act believe the laws will not be overturned by Wyoming courts, though whether that can happen in Judge Owens’ courtroom was called into question. Rep. Jeanette Ward, R-Casper, suggested the laws would only be upheld in a different courtroom.

“(They stand a good chance) if they were heard in front of a judge who interpreted law instead of legislating from the bench and engaging in activism from the bench,” Rep. Jeanette Ward, R-Casper, said in an email.

As the lawsuits proceed and the bans are suspended, abortion remains legal in Wyoming. The state is one of six where bans or restrictions are currently blocked by courts The Chelsea’s Fund website indicates two facilities in Wyoming offer abortions, one in Casper and another in Jackson.

“I’m thankful that abortion isn’t illegal yet in Wyoming and that there are people fighting for the rights of women in Wyoming,” Amanda Alexander, executive director of Sheridan’s Reproductive Healthcare of the Big Horns, said in an email.

There are also several facilities in Wyoming that help guide people through unexpected pregnancies, including Legacy Pregnancy Center in Sheridan.

“Legacy exists to embrace, encourage and empower women and families facing an unexpected pregnancy, offering hope through educational, social, emotional, spiritual and practical support,” Metcalf said in an email.

The end goal for many Wyoming Republicans remains to prohibit elective abortions in Wyoming. Neiman said the hope is Wyoming courts will uphold the bans on abortion, but the backup option is placing a constitutional amendment on the general election ballot to allow citizens to directly determine whether elective abortions should be made illegal.

“It’s overwhelmingly supported by the citizens of Wyoming and we will, as representatives of the citizens, do what we can to get something like that passed that will be able to stand up to the courts,” Neiman said.

To refer an amendment to the ballot, a two-thirds vote of approval is required from both the Wyoming House and Senate. A constitutional amendment must receive a majority of ballots cast in order to pass.

“This being a watershed issue for many people, it is reasonable to ask the people of Wyoming to weigh in through a vote on a constitutional amendment and make the final decision,” Rep. Ben Hornok, R-Cheyenne, said in an email.

This story was published on June 24, 2023.