Saturday, October 13, 2012

Pro-choice? You should vote for Constitutional Amendment A.

Remember the canticle to the unintended consequences of Jed’s squirrel hunt.

“Come and listen to a story about a man named Jed
A poor mountaineer, barely kept his family fed,
Then one day he was shootin’ at some food,
And up through the ground came a bubblin’ crude.”

Reviewing the ballot and reading Constitutional Amendment A, I started humming those lyrics. If enacted, it will write protections for a woman’s right to choose an abortion into the Wyoming constitution.

A group of anti-Obama ideologues who thought they “was shootin” at Obamacare, hit “a bubblin’ crude…oil that is…Texas tea” for those who believe abortion is a health care decision that should be reserved to the woman involved. The sponsors hoped somehow that state law could trump the federal constitution. They were trying to negate Obamacare, but the U.S. Supreme Court has already upheld the act. Therefore, the anti-Obamacare provisions of the proposal mean absolutely nothing.
But, the unintended consequences may shock the sponsors. Anti-choice legislators, whose disdain for Obamacare exceeded their ability to recognize the unintended consequences of their inability to think through an issue, proposed the constitutional amendment. Included among them was Laramie County state senator Leslie Nutting, known by some supporters as a “full-spectrum” conservative. Her legislation will most certainly enshrine a woman’s right to choose as a state constitutional guarantee.

Roe v. Wade was the Supreme Court decision holding that the U.S. Constitution protects the right of women to make healthcare choices consistent with with their own conscience. Legal scholars may find Constitutional Amendment A provides an even clearer protection for Wyoming women. Amendment A will prevent the legislature from imposing unreasonable restrictions on the right of a woman to choose.
Read it yourself. Introduced/SJ0002.pdf. Article 1, Section 38 entitled “Right of health care access” proposes: (a) “Each competent adult shall have the right to make his or her own health care decisions.” Further the ballot proposition includes this explanation of legislative intent. “The adoption of this amendment will provide that the right to make health care decisions is reserved to the citizens of the state of Wyoming.” They could not have made it any clearer.
Constitutional Amendment A provides legislative authority to “determine reasonable and necessary restrictions” on the right to choose. However, the language of the proposition places strict limits on those restrictions. The legislature is prohibited from establishing any regulation on the right of anyone to “make his or her own health care decisions” unless those restrictions are “reasonable and necessary restrictions on health care consistent with the purposes of the Wyoming Constitution.” That would certainly not include invasive ultra-sounds, waiting periods or legislatively mandated medical advice.
Finally the constitutional amendment requires the state of Wyoming to protect the right to choose. The last paragraph “provides that this state shall act to preserve these rights from undue governmental infringement.” The attorney general is required to go to court and defend the right to choose from any right-to-life legislation lawmakers, (which would undoubtedly include the sponsors of this amendment) might want to enact.
Sponsors of Constitutional Amendment A never intended to give women the right to choose. The founding fathers never intended to protect pornography either but it’s our courts, not our legislators who interpret laws. A good bet is bright lawyers will argue persuasively the language enshrines the right to choose as a state constitutional right. Right-to-life advocates will make the argument that the legislature can still restrict abortion rights. But proposal’s own words say the primary purpose of the provision is to allow “each competent adult” to “have the right to make his or her own health care decisions.”

Who knows what the courts may do but language the legislature hastily adopted can clearly be read by reasonable people to give broader protection to the right to choose than Roe v. Wade gave under the United States Constitution.

Let’s vote for Constitutional Amendment A and watch what the courts do.


  1. Very interesting. My concern is this provision: "the amendment permits the legislature to place reasonable and necessary restrictions on health care consistent with the purposes of the Wyoming Constitution"

  2. That is where the argument will come BUT the court would have to be convinced (1) that the restriction is "reasonable and Necessary" and (2) that it is "consistent with the state purposes of the constitution." The amendment itself says the purpose is to permit citizens to make their own health care choices. The lawyer in me says those are tough provisions to get around if you want to place restrictions on choice in the face of Roe v. Wade and this new amendment. PLUS the Wyoming Attorney general is required to protect the rights created under the provision.

  3. Great post Rodger. Is it also possible that the Amendment could apply to making assisted suicide a personal choice?

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  5. I don't know! It is the consitution after all. It makes me nervous. But thanks for making me re-think it. I guess now I am one of the undecideds.

  6. Hmmm Scrape...hadn't thought of that but I was also asked about medical marijuana. I do think the legislature radically failed to think about the unintended consequences.The bottom line is this proposal has no effect on Obamacare...whatever else it may do.