Kansas voters’ overwhelming decision on Tuesday to enshrine abortion protections in the state’s constitution demonstrated the power and importance of direct democracy. Given the opportunity to weigh in on the specific question of whether abortion procedures should remain protected statewide, voters turned out in record-breaking numbers to cast their ballots and safeguard the right to choose. But there are fronts in the fight for reproductive freedom beyond Kansas, many of which won’t be fought on the convenient terrain of a ballot referendum. And in some of these confrontations, abortion rights supporters are availing themselves of an unlikely tool: Weapons that conservatives left behind in their battle against the Affordable Care Act.
When the U.S. Supreme Court’s Dobbs decision erased the federal constitutional right to abortion care, overturning a precedent which had been in place for decades in a single opinion, the focus soon turned to state constitutions. As each state has its own foundational document, many offering broader protections than the U.S. Constitution, the fight over abortion care now hinges on whether and how different states guarantee residents rights to things like privacy and health care.
As it turns out, a number of state constitutional amendments passed by Republicans in the early 2010s in an effort to counter the Affordable Care Act, symbolically or otherwise, are now being explored as avenues to overturn restrictive abortion bans. These so-called “health care freedom” amendments—versions of which were proposed in at least 44 states and successfully written into five state constitutions—were put forth by conservatives when opposition to Obamacare was near its highest point. A decade later, Obamacare remains mostly intact and highly popular, while these amendments are suddenly proving to be useful in ways their authors never intended.
“When you look at the political context in which [the constitutional amendments] were happening, there was this anti-Obamacare debate,” said Dr. Philip Rocco, a political science professor at Marquette University and co-author of a book exploring state challenges to the ACA. “Now a part of these state constitutions, they could be read far more broadly.”
Nowhere is this phenomenon more evident than in Wyoming, one of the 13 states with a “trigger” law on the books that was designed to immediately outlaw abortions once Roe was overturned.
In late-July, a coalition of Wyoming residents, medical providers, and abortion-supporting nonprofits filed a lawsuit alleging that House Bill 92—the state law which makes performing an abortion in Wyoming a felony crime punishable by up to 14 years in prison except in rare cases of rape, incest or health risks—was unlawful and unenforceable. Among the plaintiffs’ many arguments against the legislation was that it allegedly violated Article 1, Sec. 38 of the Wyoming state constitution, which guarantees that “each competent adult shall have the right to make his or her own health care decisions.”
That language was inserted into the constitution via a 2012 ballot initiative designed to push back against Obamacare’s individual mandate. A couple years earlier, efforts to amend the constitution with language more specifically tailored to the ACA fell short of the two-thirds legislative majority required to send the matter to the voters. Instead, broader language was put forth, with proponents promising the amendment would “preserve individual rights.” Even at the time, however, some worried the sweeping amendment might go too far—then-State Representative Mary Throne, a Democrat who represented Cheyenne, told a local paper the amendment might have unintended consequences. Nonetheless, on November 6, 2012, Wyomingites voted 73–22 to approve the broad provision enshrining the right to health care determination for residents of the Equality State.
That the amendment was intended as a spiteful measure, kicking back against Obamacare, is not in question; indeed, during a hearing before Teton County District Judge Melissa Owens, who was presiding over the abortion-rights supporters’ suit last week, attorneys for the state of Wyoming argued as much in an effort to uphold the abortion trigger law. “That statute was supposed to push back on the Affordable Care Act,” Special Assistant Attorney General Jay Jerde told the Wyoming judge, “not to implicitly confer the right to an abortion.”
But Jerde’s argument fell flat. On July 27, the day the abortion ban was set to take effect, Owens temporarily blocked the law from being enforced for at least two weeks, finding that the plaintiffs would suffer “a possible irreparable injury” if the ban took effect and that the law “appears to conflict” with the health freedom provision in the state constitution.
Naturally, this was just the first hurdle. Plaintiffs must now convince the judge that a preliminary injunction should be imposed to stay the law while the court adjudicates the matter, and ultimately that the law itself should be struck down. The next hearing in the case is scheduled for August 9.
But even in deep-red Wyoming, legal experts believe the case has a solid chance of success. “The language is pretty clear that ultimately the legislature in framing the [health freedom] amendment was interested in protecting individual health care decisions,” said Robert Keiter, a professor of law at the University of Utah who wrote a prominent volume on the history and interpretations of Wyoming’s constitution. That the amendment appears in Article 1 of the constitution, the state’s bill of rights, “would seem to suggest that it concerned individuals’ rights regarding health care rather than more directly attacking the Obamacare legislation.”
However Judge Owens rules, Keiter predicted the Wyoming matter would ultimately make its way to the state’s supreme court, which has historically been willing to extend rights to Wyoming citizens that go further than those offered in the U.S. Constitution. “It seems to me that the Court, you know, is likely to continue with its tradition of recognizing an array of individual rights that in some instances go beyond what are available at the federal level,” Keiter said.
Beyond Wyoming, conservatives in four other states passed similar constitutional amendments in the early 2010s to push back against the ACA: Alabama, Arizona, Ohio, and Oklahoma. Each of those states has some type of abortion ban on the books, some of which are currently facing court challenges. The constitutional amendments adopted outside of Wyoming were more directly focused on Obamacare, attempting to prohibit citizens and employers from being compelled to participate in the health insurance marketplace. Nevertheless, they could still prove to be useful to abortion rights activists.
In addition to the Wyoming case, plaintiffs in Ohio are pointing to similar anti-Obamacare provisions in that state’s constitution as a reason to strike down its restrictive abortion ban. And abortion rights supporters in the Buckeye State argue that the Ohio’s anti-Obamacare constitutional language, when considered with the state’s due process clause, should be interpreted as guaranteeing Ohioans’ right to bodily autonomy.
“The Health Care Freedom Amendment further bolsters the Ohio Constitution’s strong emphasis on protection of liberty and personal autonomy, and reinforces that these protections extend to Ohioans’ right to make decisions about their own bodies—including the fundamental right to make a decision as private and central to a person’s bodily integrity as the decision to have an abortion,” plaintiffs’ lawsuit states.
The irony in all of this is that those ballot initiatives designed to kneecap Obamacare did almost nothing; once the U.S. Supreme Court upheld the individual mandate’s legality in 2012, Rocco said, state challenges to that policy “really didn’t come to any fruition.” But those efforts could be successful yet—at least in preserving the right to abortion care in some of the nation’s most conservative states.