Wyoming abortion ban blocked as a consequence of Obamacare-era change

Abortion is legal again in Wyoming, oddly as a result of a state constitutional amendment pushed by anti-Obamacare conservatives more than a decade ago.

Teton County District Court Judge Melissa Owens, in a ruling Wednesday, temporarily blocked enforcement of the state’s newly enacted abortion ban that went into effect Sunday.

Owens’ decision pointed to a 2012 amendment to the state constitution that gave Wyoming citizens the right to make their own decisions about healthcare.

Wyoming voters overwhelmingly passed this amendment, which was intended to protect them from hypothetical harm contained in then-President Barack Obama’s Affordable Care Act.

Anti-abortion lawmakers in Wyoming have attempted to circumvent the 2012 amendment by passing the abortion ban.

The state’s sweeping ban, titled Life is a Human Rights Act, asserts that abortion is not a form of health care.

“Abortion is not healthcare, it is the deliberate termination of the life of an unborn child,” says the law, which specifically targets the anti-Obamacare amendment to the constitution.

The ban prohibits abortion in most cases, and provides exceptions for incest, sexual assault, cases of “fatal fetal abnormality” or when the life of the pregnant person is in danger. Breaking the law is a felony, punishable by up to five years in prison and a $20,000 fine.

But Owens said in her decision Wednesday the state legislature exceeded its powers.

“To declare that abortion isn’t health care when there’s evidence that it is — the legislature can’t come to terms with essentially providing for constitutional amendment,” she said during a hearing, according to a New York Times report Wednesday.

Owens added: “The state cannot prohibit a constitutional right by statute. It is not clear whether abortion is healthcare or not, and the court then has to decide.”

She also told Jay Jerde, an assistant attorney general for Wyoming, who is defending the law for the state, “I still believe abortion isn’t health care,” the Times reported.

“An abortion can only be performed by a licensed medical professional. So what authority does the legislature have to declare that abortion is not health care when our laws only allow a licensed medical practitioner to administer one?” she asked Jerde during the hearing.

Owen’s decision is pausing the abortion ban pending further trials in a lawsuit challenging it. It’s unclear whether the court will ultimately agree that the anti-Obamacare amendment bans a state ban on abortion.

The constitutional amendment contains wording that could enable the ban to take effect. That amendment states that the state legislature may establish “reasonable and necessary limitations on the rights granted” through the amendment.

In other states, constitutional amendments have become unlikely weapons in the fight against abortion restrictions. For example, in October an Ohio judge temporarily blocked the state’s ban on abortion over a constitutional provision passed in 2011 in response to Obamacare.

In South Carolina, the Supreme Court overturned the state’s abortion ban after six weeks, ruling that it violated the state’s constitutional right to privacy. Similarly, in June a Florida judge temporarily suspended the ban on abortions after 15 weeks of pregnancy because it violated the state’s constitutional right to privacy.

These measures represent a broader shift in abortion rights litigation after the Supreme Court upheld the half-century-old Roe v. Wade had picked up. After that, the right to abortion was largely left to the individual states. Some states have rushed to ban the procedure outright, while others have gradually introduced new restrictions. Most abortions are now banned in more than a dozen states, including Texas, Idaho, Wisconsin, Tennessee, Oklahoma and West Virginia.

The Wyoming judge’s decision on Wednesday comes as Republican opposition to Obamacare has eased significantly.

Obamacare aimed to make health care more affordable by offering tax credits for individual private health insurance plans and expanding Medicaid, the joint federal and state program that provides health insurance to low-income Americans.

Obamacare also required health insurance plans to include certain minimum coverage benefits.

Republicans strongly opposed the law at the time, arguing it represented “a government takeover of healthcare” that deprived Americans of the ability to choose their own doctors and make medical decisions.

GOP lawmakers during the Trump administration have repeatedly failed to repeal the ACA, let alone approve a replacement law. Meanwhile, 39 states have expanded their Medicaid programs to include more beneficiaries under the ACA.

Wyoming is the only western state that has not expanded Medicaid.

— CNBC’s Dan Mangan contributed to this report.

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