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.

Defend the rights of the poor and needy

America is holding her collective breath and waiting. Will the highest court in the land judge righteously? Will the Supreme Court of the United States defend the rights of the neediest and most vulnerable people in the land?

For nearly five decades has America thus been waiting. Year after year, all eyes look to see if nine black-robed judges might utter the magic words that would protect the lives of all. Year after year another million children have been lost, their parents wounded, their families hollowed out.

But why are we waiting? Is not God’s command clear and immediate? “Open your mouth, judge righteously, defend the rights of the poor and needy” (Proverbs 31:9). The imperatives are personal and singular. Nothing in these words requires others to act. Much less do they require you to wait for permission to act.

Imagine a nation where citizens are legally forbidden to stop a public lynching. Consider a country where it is illegal to defend some ethnic or religious class. 

Would such laws be valid? Should we obey them? Would the situation be improved if such outrages were performed in a clinic dedicated to the purpose? Would the perpetrator be justified if the legal guardian first signed a form granting consent?

These are not imaginary scenarios. Looking back, we are not hampered by moral uncertainty. We judge evil harshly—and rightly so. Corrie ten Boom, Oskar Schindler and Harriet Tubman are uncontested heroes. The Nuremberg defense abjectly failed to lessen the villainy of Rudolf Hess and Herman Göring who were “only following orders.” The cold, steady eye of posterity inevitably sees through even the densest fog of the cultural wars.

With this 20/20 vision, we assure ourselves that we would have been on the right side of history had we lived in those days. But we blind ourselves to what our own posterity will judge us to be. 

And what is it, exactly, that we praise in Schindler, ten Boom, and Tubman? The word is “interposition.” They interposed themselves between innocent victims and government actors who hunted them down. They saw injustice in real time and acted to protect the innocent. 

Interposition is neither insurrection nor complicity in evil. It is the full and free use of your own resources and position to do always, and only, the right thing. Ten Boom lied to the Nazis. Tubman defied the Fugitive Slave Act. Schindler bought slaves from the Nazis in order to save them. 

In every case, interposition involves both wisdom and personal risk. It recognizes that government authority has limits. “Under God,” means that the most powerful ruler remains subject to “Nature’s God.” It also means that even the lowliest official has a divine mandate to resist evil from above. 

In early May, an anonymous actor leaked a draft opinion on Dobbs v. Jackson, written by Justice Samuel Alito. The leak triggered pro-abortion activists into obnoxious and illegal contortions designed to keep the draft from becoming the official opinion of the Court. Will the five signatories hold the line, or won’t they? We will soon find out.

But Alito’s draft is far more than just one possible opinion. It changed the game by exposing both Roe and Casey for what they are. They are not constitutional, statutory, judicially sound, or moral. Even if the assassination attempt on Justice Kavanaugh, or the illegal protests at Justice Barrett’s home, or the current blockade of the Supreme Court were to succeed in cowing the Court and suppressing this opinion, Alito’s words cannot become unsaid.

Roe and Casey have forever lost the fig leaf of judicial legitimacy. They were nothing but naked power grabs from the start. Through this leaked draft, the world has been given the rare opportunity to know the judgment of posterity in real time. What will our children and grandchildren say about us? Read Alito’s opinion and you know. 

Nevertheless, the draft stops short of justice. It declines to protect every human life as legitimate governments are duty-bound to do. Rather, it merely takes the federal judiciary out of the game. 

One illegitimate claim to power has been deflated. But justice will still require wisdom and courage on the part of every office holder. If SCOTUS’ ultimate opinion follows Alito’s draft, the battleline will shift from the judicial branch to the legislative—where it properly belongs. But the duty of interposition will not have changed in the slightest. 

The unborn will still need governors to protect them from federal injustice. State legislators will still need to craft laws that defend the innocent from congressional overreach. County commissions, city councils, fathers, mothers and grandparents can no longer wait for nine black-robed judges to do the right thing. Each one, every day, without exception must be both wise and bold to do always, and only, the right thing. “Open your mouth, judge righteously, defend the rights of the poor and needy.”

Your life matters. Don’t let anyone tell you otherwise.

Photo credit: Joonyeop Baek on Unsplash

Your life matters. It matters to me. It matters to God. It matters to your family. It matters because your individual, unique life gives joy and meaning to countless others. This is the most basic fact of life. Always remember it. 

In bouts of depression and despair, remembering that you are wanted by others will always bring you through. Not only is this a source of abiding joy, it’s the best suicide prevention there is. Those, especially, who feel unwanted and purposeless need to know that they are loved. Tell them that their life matters to you. Tell them why it matters. Remind them that it matters to others as well. 

Photo credit: Dan Meyers on Unsplash

When you remind people that their lives matter, you are not speaking empty words only to make them feel better. You are expressing the truth in its deepest and most universal sense. We know it instinctively. We know it by reason. And we know it by God’s revelation. It is one of the last abiding and unifying truths that we can all agree on.

For this reason, those who care about suicide prevention must recoil at the claim that life is meaningless. We should oppose this false idea wherever we encounter it. It’s not enough to whisper it in private conversations. It should also be embedded in medicine, taught in the academy, and framed in our laws. This is nothing less than our duty of love.

Every word or act that says otherwise—that some lives do not matter—is not only a lie, it is an evil word that deprives people of hope and drives them toward suicide. The cheapening of one human life cheapens every human life. It screams meaninglessness to the very people who are most in need of hearing that they matter. 

Against this backdrop of suicide prevention, I was chilled to learn that a new corporation, dedicated to aborting Wyoming children, has adopted the same name as Wyoming’s suicide prevention charity. Wyoming Circle of Hope is a chapter of the American Foundation for Suicide Prevention. It exists to encourage people with the message that their lives matter. 

But if you Google that name in Wyoming, one of the first sites to pop up is an abortion corporation that exists for the express purpose of bringing surgical abortion to the Cowboy State. Scroll to the bottom of the page and it provides a corporate address: Circle of Hope, 712 H Street NE, Suite 1825, Washington, D.C. That piqued my curiosity. Who in Washington is so interested in aborting Wyoming children? Who wants to say that some lives don’t matter?

Circle of Hope corporate headquarters

The address does not help answer that question. Rather, it is only a run-down, non-descript storefront that serves as an anonymous mail-collection service. It has no office and no staff. But the website does list three “founding members,” who are “highly skilled in abortion delivery services.” 

Julie Burkhart is listed as the Founder. Her sister, Christie Burkhart, and Molly Oakley, are listed as “Founding Board Members.” None of these people is a doctor, none a nurse. Nor do they appear to have any medical or mental health training. Their main qualification is abortion activism. They have worked together for years to bring abortion to towns that were not asking for it.

Sisters Christie and Julie Burkhart

Julie Burkhart boasts of working for seven years with Dr. George Tiller, the notorious late-term abortionist from Kansas. He hired her, first, as a spokeswoman and, later, to run his pro-abortion political action committee. After his 2009 murder, she reopened his abortuary under a new name. Since then, she has opened two others, in Oklahoma City and Seattle. 

If none of the founders has medical qualifications, who will be doing the abortions? There’s no clear answer to that question. But, according to a 2019 article in the Guardian, Burkhart’s Kansas and Oklahoma enterprises have been unable to hire any local doctors. So, doctors are flown in from other states. Chances appear to be good that this pattern will be repeated in Casper.

Out-of-state abortion activists setting up an abortion mill, where out-of-state, anonymous doctors perform assembly-line abortions, do not do much to convey the warmth and meaningfulness of community. Presumably, that’s why Burkhart announced the existence of a 15-member “community advisory board.”

The leader of Casper’s Unitarian Universalists, Leslie Kee, has identified herself as one board member. But the names of the other 14 could not be found. Here, again, like the anonymous mailbox in Washington and the unnamed flying doctor, anonymity is the order of the day.

It is disturbing that a largely anonymous corporation is undermining Wyoming’s suicide prevention efforts by acting as if some lives don’t matter. For the record: you should know without a doubt that your life does in fact matter—now, and even before you were born.

Dear Rebecca...

Rebecca Kiessling, human being

On the Ides of March, Governor Mark Gordon signed into law HB 92 Abortion prohibition-supreme court decision. This was one of the most important pieces of legislation to be passed in years. Its importance lay in the fact that 45 of 60 representatives, 24 of 30 senators, and the sitting governor of Wyoming all acknowledged that Wyoming law should, by right, protect all human life from conception to natural death.

HB 92 recognizes unborn children as proper subjects of the law’s protection. In so doing, it also recognizes that current Wyoming abortion law has been hijacked by the Supreme Court. In 1973 seven men in black robes propounded a novel doctrine based on an arbitrary division of gestation into three trimesters. 

With this non-scientific and morally arbitrary doctrine, the Warren Court stripped protections from the youngest and the weakest—based precisely on their age and size. Up to that point, Wyoming had protected all members of the human race equally, while allowing for tragic circumstances when the life of the mother was threatened by pregnancy complications. 

Photo by Lennart Nilsson

Not only was Roe v. Wade bad law and bad medicine, it also violated the Tenth Amendment of the U.S. Constitution by denying states the right to protect their own citizens through sound legislation. In Wyoming, Roe also violated our State Constitution. Wyoming’s entire governance is constituted upon the truth that “In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal” (Art. 1, Sec. 2). 

By these deliberately chosen words, the framers of Wyoming’s Constitution chose not to discriminate against any member of the human race—whether because of race, sex, religion, age, or any other accident of birth. So, when the Supreme Court mandated that Wyoming give less protection to some members of the human race, and more protection to others, this was in violation of our most basic value. 

Every legislator who voted to enact HB 92, the governor who signed it, and the countless Wyoming citizens who supported its passage with emails, phone calls, and personal visits, should all be commended. The passage of HB 92 truly exemplifies a constitutional republic at its best.

Around midnight after the signing, one email sounded a somber note: “It’s sad for my people group because of the targeted, lethal discrimination expressly contained within it.” The author was Rebecca Kiessling, President of “Save the 1.” 

According to its website, “Save The 1’s mission is to educate everyone on why all pre-born children should be protected by law and accepted by society, without exception and without compromise.” They fight what is commonly known as the “rape and incest exception.”

Rebecca and her birth mother, Joann

One week before Governor Gordon signed HB 92, senators Case (R-Lander) and Rothfuss (D-Laramie) jointly sponsored an amendment that denied protection to the unborn if “the pregnancy is the result of incest …or sexual assault.” The amendment squeaked through on a 15-14 vote.

Rebecca Kiessling was conceived during a violent assault by a serial rapist. Her mother was the sort of innocent victim that this amendment was intended to protect. But years later, after Rebecca came to know her birth mother, she became truly grateful that Michigan law had prevented her from aborting Rebecca.

Now, Rebecca is a mother of five, a successful attorney, and an internationally known speaker on human rights. She has a tendency to take it personally when people say she should be dead.

Her email haunted me. I could not push it out of my mind. While I woke up with a full day’s work ahead of me. I could not focus on any of it. I had to give her an answer.

So, I set aside my work and wrote: “Dear Rebecca, I can only imagine the sadness and injustice that you feel in your heart when you see fellow human beings devalue your life so callously. I can also imagine that the rage against injustice is not only felt towards those who worked to exempt you from law, but also against your friends and allies that did not fight hard enough to protect you.”

“I cannot blame you. I am certainly culpable for not doing enough on my part. Considering how many minds and hearts were changed by your brief appearance in the Capitol, imagine what we could have done if we had talked about this more openly for a period of months, not days. I am sorry. Please forgive me. And please don’t give up on us.”

Wyoming should be profoundly grateful for the accomplishment that is HB 92. It will make a difference for generations to come. But we should also recognize the legitimate needs of people like Rebecca, and never stop until every member of the human race is equally protected by Wyoming law.

Also published in the Wyoming Tribune Eagle, March 18, 2022.

Real women who conceived in sexual assault should be heard

Photo by Nathan Dumlao on Unsplash.com

House Bill 92 “Abortion prohibition-supreme court decision” earned the unanimous approval of the Senate Labor committee last Monday. Before that, it cleared the House by a 43-16 margin. There, opponents of the bill raised the emotional issue of rape conception.

Representative Provenza (D-Laramie) shared her own story of sexual assault and wondered, “what would happen if I was pregnant?” It’s a fair question. Even well-meaning people who speculate about the needs and feelings of such women, are only guessing. So, I sought out two women to give them voice. 

Meet Kristi Kollar. This native of Afton, Wyoming, had just earned acceptance into the American Musical and Dramatic Academy—a world-renowned acting school in New York. Then her life changed. A classmate driving her home from school assaulted her in his car and she became pregnant. 

“When I found out I was pregnant,” she said, “I remember just, immediately, knowing that I had a life.” This motivated her to learn the facts and write about them. “I felt her [my baby] like, kicking and moving, and she had hiccups while I was writing this essay.” This was her 20th week, “And I remember thinking, I don’t know how anyone can feel this and still go through it [abortion].”

Kristi and Addy Kollar

At that point in our conversation, her three-year-old daughter wandered into the room. Kristi apologized for the interruption, but it was no interruption, at all. This child was the reason for our conversation. We were speaking, not about abortion, but about a person. Still, with the child in the room, the question I planned to ask caught in my throat.

When she left and was no longer within earshot, I swallowed hard and asked: “Was there ever an impulse where you just feel like this baby growing in me is a daily reminder of what happened to me?” Kristi’s reply was immediate: “No.” There were a thousand challenges that the pregnancy brought on, not the least of which was the prospect of losing her dream education. But, “it was never, like, because it was ‘a reminder.’” 

“When I look at Addy, and when I looked at her the day she was born, and every day that I look at her, I don’t see ‘a reminder.’ I see the person who got me through all that… I don’t know how I would have recovered from my assault if it had not been for Adeline. I think that would have been an even deeper wound than it already is.”

Ashley Sigrest agrees. She doesn’t just think it; she knows it. Ashley was drugged and raped in the spring of 1998. When she learned that she was pregnant, she didn’t want an abortion. She wanted an escape. But she believed those who promised her that abortion would give her escape.

Choiceless, she remembers “thinking, every day, that I HAD to go to the abortion clinic.” Still, she secretly mused, “If someone was out there screaming at me, maybe I’ll be too scared to go through with it… or [maybe] someone would intervene on my behalf.”

Ashley Sigrest

Once at the clinic, she told the receptionist that she had been raped, and said, “I don’t want to do this.” “No one cared that I had been raped. No one cared that I was not sure [about the abortion].” Instead, she laments, “they tell you THE BIG LIE, that you can just have the abortion and go on with your life as if nothing had happened.”

Too late, Ashley learned the truth. “My abortion did not help my rape… I ended up getting diagnosed with PTSD because of the abortion.” The escape she sought only took her son, Joshua Schuyler, and gave her another injury, deeper than the first. “Abortion is not the answer for a rape victim.” Rather, “It just really prolonged my healing from my assault.”

Representative Lebeau (D-Ethete) claimed otherwise in debate on the House floor. She supposed that this bill would “allow the pregnant victim to be reminded every living moment of the very intimate horrifying crime done to them.” I asked Ashley and Kristi if that is true.

“Regardless, the rape victim is going to think about the attack, always,” Ashley replied. “But if you add abortion on top of that, then you’re adding a whole new layer of trauma and victimization.” Kristi answered, “People who think that way aren’t bad people. They just don’t understand. And they have been lied to by a system that knows how to lie very well.”

Kristi didn’t miss her dream education, either. Last spring, she became the first mother, ever, to graduate from the American Musical and Dramatic Academy. “The narrative is that you can’t continue life afterward. But I felt so empowered that I could do both. That I was capable of going to school and still having Addy—that I was capable of healing and being a good mom despite what had happened.”

Ashley, also, has healed from both the assault and the abortion. Now she advocates for women like herself: “Women deserve better than abortion. Rape victims deserve better than abortion.”

Also published in the Wyoming Tribune Eagle, March 11, 2022; and in the Cowboy State Daily, March 9, 2022.

Four canards that harm women and children

Photo by Devon Divine on Unsplash

Wyoming’s annual legislative scramble is underway. Over 260 bills are clamoring to win an “Introduction” vote. Only those that cross this threshold by Friday night will have a chance to become law this year. Pro-life citizens will be pulling for at least one bill from each chamber. 

House Bill 92 “Abortion prohibition-supreme court decision,” sponsored by Rachel Rodriguez-Williams (R-Cody), addresses the very real possibility that the U.S. Supreme Court may soon abandon its legally unsound, and constitutionally unfounded decision of Roe v. Wade. If the Court decides to return states’ rights, HB 92 would return Wyoming values to Wyoming’s Statutes.

Senate File 83 “Prohibiting chemical abortions” would protect Wyoming women from a corrupt FDA that is quietly stripping standard medical protections from women. This enables Big Pharma to make big money while exposing women to serious risks. SF 83 would stop these shoddy medical practices.

Of course, that’s not the way that pro-abortion lobbyists will portray it. You can expect to hear a litany of well-worn canards in opposition to these, and any other pro-life bills that may yet be filed before the deadline.

First, you will notice a refusal to grace the preborn with the status of “human being” or “person.” States that count people as people will always protect them from harm. To deny such protection in law requires, first, the denial of personhood in language. Often, the Latin word for child, “fetus,” is used as a sleight of hand to accomplish this dehumanization. 

A second canard is to claim that advocates for the unborn care nothing for the children after they are born. This is refuted once you notice that the same people who advocate for the unborn are those who establish, fund, and operate a dozen pregnancy resource centers around the state. Centers, like those run by Rodriguez-Williams, provide a cornucopia of gifts to mothers and fathers who need physical, financial, and emotional support both before and after the birth of the child. 

Churches often provide free diapers, formula, clothing, and other child-care necessities. My own denomination (the Lutheran Church—Missouri Synod) recently launched a “Million Dollar Life Match” to help fund local congregations’ care for all children. The initiative is inspired by the biblical charge, “Little children, let us not love in word or talk, but in deed and truth” (1 John 3:18). Look for these services in your town.

Third, it is falsely claimed that Roe v. Wade protects the life of the mother. Since those who came of age after 1973 have little recollection of Wyoming Statute beforehand, this misinformation often goes unchallenged. The fact is that Wyoming’s abortion law always protected the lives of women. 

For nearly eight decades before seven men in black robes nullified our state laws, Wyoming recognized that medical procedures to save the life of a pregnant woman were both appropriate and legal. Even if an unborn child died in the process, this was never forbidden by pre-Roe abortion laws.

Roe gave no additional protections to the life of mothers. Rather, the Court inserted the word “health,” and deliberately left it undefined. As any lawyer knows, undefined words are legal gold mines. To insert an undefined term into law is to insert a wild card that can be interpreted to mean anything and everything. 

According to a January 2022 Marist Poll, 83 percent of Americans believe that there should be reasonable restrictions on abortion and 71 percent believe it should be restricted to  the first trimester. Few realize that the Supreme Court’s undefined term acted like a wrecking ball to demolish any and every reasonable limit. As a result, America allows abortion up to the moment of birth. This aligns us among the six most unreasonable and barbaric nations in the world,

Fourth, abortion lobbyists often claim that the needs of women and the needs of their children are in conflict. They assume that granting rights to children takes rights from women. This is not true. 

Pro-life efforts to support both the born and the unborn are informed by a deep understanding of the needs of women. Countless psychological studies tell us what our hearts already know: To support a mother’s desire to nurture her child is to support the mother herself.

The book, “Victims and Victors: speaking out about their pregnancies, abortions, and children resulting from sexual assault” (Reardon, Makimaa, and Sobie, 2000), thoroughly documents this fact. This study allows 200 women to speak for themselves. Their unfiltered words cut through artificially manufactured narratives and speak the truth with authenticity.

As citizens and legislators engage in lawmaking over the next several weeks, these four facts can help make sound policy decisions and contribute to a more civil society. Mahatma Gandhi had it right when he said, “The true measure of any society can be found in how it treats its most vulnerable members.”

Also published in the Wyoming Tribune Eagle, February 18, 2022, and in the Cowboy State Daily, February 17, 2022.

Wyoming weighs in on Dobbs v. Jackson

The 2021 Supreme Court

Monday, December 13, will mark the 50th anniversary of oral arguments in the case of Roe v. Wade. Thirteen months later the Supreme Court handed down arguably the most destructive decision in SCOTUS history. It has resulted in the legalized extermination of 63.7 million Americans. In addition to the staggering human costs, Roe v. Wade, together with Planned Parenthood v. Casey, have inflicted additional injuries upon the body politic. 

On Wednesday, December 1, 2021, council for the state of Mississippi stood before the Supreme Court and said, “Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise. For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.”

Mississippi AG, Lynn Fitch

These were the opening lines of oral argument in defense of Mississippi’s Gestational Age Act. They echoed Mississippi Attorney General, Lynn Fitch, who wrote, “Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court.” 

Mississippi’s Gestational Age Act was carefully crafted by an extensive legislative process to balance multiple interests. It allows abortions after the 15th week of gestation, but only under circumstances designed to protect women, the medical community, and babies according to the constitutional duties of the state. Nevertheless, lower courts have blocked its enforcement based on the arbitrary “viability test” imposed by Roe and Casey.

This case, Dobbs v. Jackson, has garnered national attention because it is the first case in nearly 30 years that directly calls for Roe to be overruled. More than 80 Amicus Briefs were filed in support of the state of Mississippi (30 more than those opposing the state’s rights).

Wyoming, along with 23 other states, filed a brief arguing that both “Roe and Casey should be overruled” because they have severely distorted the most foundational legal doctrines. By them, states are denied their Constitutional right to protect their own citizens by publicly debated and carefully balanced laws.

Another brief, signed by 396 state legislators from 41 different states included signatures from Senators Biteman, Hutchings, and Steinmetz of Wyoming, along with former Representative Winters. It argues that the “viability prerequisite to abortion regulations prevents state legislatures from” keeping their “oath to uphold the Constitution of the United States and the constitution of the particular state in which he or she serves.”

Wyoming’s entire Washington delegation (Barrasso, Lummis and Cheney) joined a brief filed by 228 Members of Congress saying: “It is long overdue for this Court to return lawmaking to legislators.” 

All three of these amici highlight a constitutional problem at the heart of Roe and Casey. The Tenth Amendment guarantees: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Yet the Supreme Court has robbed the right of states to regulate the practice of medicine within their borders. This is nowhere granted by the Constitution. 

Roe forced 46 states, including Wyoming, to rewrite laws, not based on science and the rational consensus of its citizens, but in order to satisfy seven unelected men in Black robes. In so doing, it froze in place outdated science and prevented America from keeping up with modern medical advances. 

The 1973 Supreme Court

In 1971 ultrasounds were not yet invented, and “viability” translated to 28 weeks of gestation. Today ultrasounds can see beating hearts at eight weeks gestation, and fingers by the tenth week. As for “viability,” an Alabama boy born at 21 weeks recently celebrated his first birthday.

For nearly a half-century, America’s medical practice has been hobbled by Roe. While the rest of the world was modernizing its laws to protect mothers and children after the 12th week of gestation, Roe and Casey have weighed us down like a millstone. Embarrassingly, America is one of only six nations on the planet allowing unrestricted abortion through all nine months of pregnancy.*

During Wednesday’s oral arguments, Justices Barrett and Kavanaugh, the critical swing votes on the Court, signaled their willingness to overturn Roe and Casey. If that happens, it will not change abortion law overnight. Rather, it will take a huge thumb off the scales of justice.

Five decades after the Supreme Court unconstitutionally demanded that Wyoming change her laws, legislative debates are still short-circuited by the non-scientific and non-democratic question: What will the Supreme Court say? It’s high time that the high court ask, instead: What do the people of Wyoming say? 

* Note: an earlier version of this article errantly included Singapore in this list, bringing the total to seven. While every other country bans abortion after 20 weeks, Singapore's limit is 24 weeks.

Also published in the Cowboy State Daily, December 1, 2021 and the Wyoming Tribune Eagle, December 3, 2021.