All eyes are on Governor Gordon

Photo credit: Isaac Quesada on Unsplash.com

Dobbs v. Jackson is, hands-down, the most important decision of the Supreme Court in more than five decades. Front and center (p. 1) are the thunderous words, “Roe and Casey are overruled.” Page 8 explains, “Roe and Casey arrogated that authority [for each state to regulate or prohibit abortion]. The Court overrules those decisions and returns that authority to the people and their elected representatives.”

The majority opinion goes on to repeat those words after twice declaring: “Roe and Casey must be overruled.” Justice Clarence Thomas, concurring, writes, “the Court rightly overrules Roe and Casey.” Justice Brett Kavanaugh repeats four times, “Roe should be overruled.” 

Even the dissenting opinion of Justices Breyer, Sotomayor, and Kagan acknowledges four times, “The majority has overruled Roe and Casey.” And Chief Justice, John Roberts, disagreed with the majority while twice acknowledging “the Court’s decision to overrule Roe and Casey.” Thus, while the decision to do so was split 5-4, there was no disagreement about what SCOTUS actually did. No fewer than 15 times do the nine justices make explicit that Wyoming’s “trigger” has been pulled.

Moreover, despite the continued false claims of various pundits, politicians, and press outlets, all nine justices agreed that there is no constitutional basis for Roe. The dissent openly admits that “there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one” (Dissent, p. 13). 

The majority underscores this, and more. “The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a ‘deeply rooted’ one, ‘in this Nation’s history and tradition.’ …The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise” (p. 35 citations omitted, emphasis original).

Note especially the words, “no state constitutional provision.” On Monday after SCOTUS dropped the Dobbs decision, lawsuits were filed in Louisianna, Utah, Kentucky, and Idaho. More are sure to follow. All these lawsuits claim that “trigger laws” in those states violate that state’s constitution. 

Regarding one such claim, Bill Duncan, a research fellow at the Sutherland Institute admits, “I think that’s going to be a really hard thing to establish for them. I don’t think that the Utah Constitution has ever been read to require that, and I don’t think the history or tradition of the state’s constitution supports that idea.”

As of this writing, no lawsuits have been filed against Wyoming’s trigger law. Any such suit would face “an uphill battle” for at least two reasons. 

First, at the center of Dobbs is the judgment, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including …the Due Process Clause of the Fourteenth Amendment.” This judgment ought to hold for Wyoming’s Constitution which contains the language of the Fourteenth Amendment verbatim: “No person shall be deprived of life, liberty or property without due process of law” (Art. 1, Sec. 6). 

Even more fundamentally, Wyoming’s constitutional provision of “Equality of all” explicitly states, “In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal” (Art. 1, Sec. 2). Prior to Wyoming’s statehood, a theory that denies “personhood” to certain human beings caused a great Civil War. This discredited religio-philosophical theory had been used by the Taney Court to deny Dred Scott his constitutional rights. It was decisively overruled by the Thirteenth and Fourteenth amendments. Against that sad history, Wyoming grounded equality not on “personhood,” but purely on one’s membership in “the human race.”

Almost a year ago, (July 2021), Wyoming's attorney general, Bridget Hill, signed an amicus brief at the direction of Governor Mark Gordon. Wyoming joined 23 other states in arguing, “The Court’s abortion precedent is erroneous, inconsistent, uneven, and unreliable. Traditional stare decisis principles cannot save it. Roe and Casey should be overruled.” Last Friday, when the Court agreed and granted their petition, Governor Gordon tweeted, “This is a decisive win for those who have fought for the rights of the unborn for the past 50 years. I signed Wyoming’s prohibition on abortion bill because I believe that the decision to regulate abortions should be left to the states.” 

Governor Mark Gordon

The eyes of Wyoming are now on the Governor’s office. Wyoming law gives Attorney General, Bridget Hill, thirty days from last Friday to review Dobbs and report “to the joint judiciary interim committee and the governor.” Her review is to advise “that the supreme court (sic) of the United States has overruled Roe v. Wade, 410 U.S. 113 (1973) in a manner that would authorize the enforcement of [the Abortion prohibition law].”

Upon receipt of this review, Governor Gordon can certify those results to the Secretary of State. Five days later, Wyoming’s statutes will be updated to reflect the people’s desire to give equal protection in law to “all members of the human race,” as our Constitution demands. 

No doubt these public servants are facing significant pressure from special-interest groups to find some avenue to deny certification of the trigger law. Wyomingites can help them by praying for them, encouraging them, and defending them in the performance of their duties. Together the people can reclaim the right to enact Wyoming’s Constitution after five decades of unjust interference from the federal judiciary.