Every member of the human race should be equal in Wyoming law

Photo: Nowshad Aarefin, unsplash.com

Clarissa was born on the bathroom floor, weighing only three and a quarter pounds. She was delivered six weeks before her mother’s due date. Three siblings before her had already been removed from her custody due to her mother’s ongoing drug addiction. In fact, it was an overdose on methamphetamine, cocaine and, possibly, heroine that caused the premature labor.

As Clarissa lay unbreathing on the floor, she was discovered by her maternal grandmother. Acting quickly, she revived the tiny baby and called an ambulance. Once in the hospital, Clarissa suffered from neonatal abstinence syndrome (NAS). In essence, this is withdrawal from the illegal drugs that were given her through the umbilical cord.

After the initial struggle with NAS, she was diagnosed with “failure to thrive.” Unable to process enough nutrition to sustain a normal growth curve, she lost even more ground in her struggle to survive. By the grace of God, she overcame all these challenges. The love of her foster family and the skill of the medical team combined to bring her to full health.

Clarissa’s rough entry into the world is now a story she likes to tell. She has a passion to share her story because she knows that she speaks for others. Statistically, there is a child born with NAS every fifteen minutes. The tragedy of America’s addiction epidemic is that it affects not only men and women, but tens of thousands of unborn persons every year.

Not all are as fortunate as Clarissa. Some are still born. Others die unattended. Survivors sometimes have life-long birth defects. The injury and death inflicted upon some unborn children, but not others, is an inequity that cries out for justice. When a mother injures her own child with illicit drugs, the state has a duty to intervene for the protection of the child.

In recognition of this duty, the State of Wyoming recently filed charges against a Torrington mother. The facts of the case are undisputed. On August 18, 2019, a mother under the influence of methamphetamine gave birth to a child who also tested positive for the drug.

“She was charged with felony child abuse and delivery of methamphetamine to a minor,” according to the Torrington Telegram. On December 9, she was arraigned in the Eighth District Court. Then, on March 26, 2020 her charges were dismissed.

Public Defender, David MacDonald, successfully argued that Wyoming’s statutory language does not specifically say that an unborn child is a “child” in the eyes of the law. Therefore, the charge of delivering meth to a minor child must be dismissed. He further argued that it does not specifically call a pregnant woman a mother. If not a mother, she cannot be a “parent” in the eyes of the law. Therefore, she cannot be charged with felony child abuse for action taken before the birth.

The Torrington Telegram triumphantly headlined the story, “Charges dropped; attorney proves a fetus isn't a person, according to state statute.” Actually, MacDonald is more modest about his achievement. His success at court fell short of proving that Wyoming law considers a fetus to be a non-person. Rather, he proved that the statutory language fails to stipulate that an unborn child is a person, or that a pregnant woman is a mother.

Goshen county courthouse

This ought to alarm every pregnant woman and every expectant couple in the state. The Eighth District Court has now established case law denying that a fetus has any parents prior to birth. In a bid to exonerate a woman of her parental responsibilities, the court wiped away all corresponding parental rights.

Anybody from a doctor to a state agency can treat a child in the womb without consent from either the mother who is carrying her or the man who fathered her. Neither parent has any legal rights to make decisions for the care of the child prior to birth.

As for the unborn child, the Eighth District Court has just wiped away any legal protection that the child formerly had under Wyoming law. If it is legal to deliver harmful substances to an unborn child, it is also legal for anybody to kill the child and the state has no statutory authority to punish the crime against the child. Enhanced penalties for killing a pregnant woman (enacted in 2010) do nothing to address this injustice.

Senator Lynn Hutchings

If this problem in Wyoming law seems vaguely familiar, you may be remembering that Senator Lynn Hutchings tried to repair it during the 2019 general session. By introducing the Unborn victims of violence act (SF 128) she sought to provide statutory language that would allow Wyoming to prosecute the murder of an unborn child.

Sadly, the bill was heavily amended in the Senate Judiciary Committee. Every reference to “unborn child” was replaced with “fetus,” and every reference to “mother,” was replaced with “pregnant woman.” Although these amendments were removed on the senate floor, the bill ultimately failed. It remains legal in Wyoming to murder an unborn child against the will of her mother.

Now, the Torrington case has shown that it is likewise legal to deliver harmful drugs to an unborn child. MacDonald did not find and exploit a hidden loophole. Hutchings and others pointed out the loophole long ago. But, rather than fix it when they had the opportunity, the senate defeated SF 128 11-18.

It is no longer possible to be dismissive of Hutching’s concerns. It has now been proven in court that nothing short of a legislative fix will address the problem. Until the statutory language is corrected, Wyoming law will continue to conflict with the state constitution.

The Declaration of Rights, Paragraph 2 of the Constitution of the State of Wyoming stipulates “In their [the people’s] inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”

The equality of the people of Wyoming is not affected by any subjective stage of development or subcategory of human being. Whether a member of the human race is called: “embryo,” “child,” “fetus,” or “person,” the Constitution recognizes equality for “all members of the human race.”

In recent centuries, deeply anti-human philosophies have sought to separate “human beings” from “persons.” By this sleight of hand, they have justified the blight of slavery, the Jewish holocaust, and a host of racist policies. Wyoming’s Constitution, written after the war to free the slaves, binds our lawmakers to give equal protection under law to all members of the human race without regard to the vile distinction between persons and non-persons.

I was disappointed to learn that the state’s prosecutor did not represent the constitution’s language to the Eighth District Court. Regardless, the court should have recognized its constitutional duty even where the statutory language fails to articulate the plain meaning of the constitution.

The Torrington case highlights the failure of Wyoming law to adequately guarantee the protections promised in the Wyoming Constitution. Clarissa’s life reminds us that this failure is not merely theoretical. It causes tangible harm to real people with lives worth protecting.

It is past time for Wyoming's executive branch, judicial system, and legislators to enact and enforce laws that give equal protection to every member of the human race as the Constitution demands.