Jackson Judge Sends 14 Questions to the Supreme Court

But not the most important one

In the latest salvo against “Wyoming’s Life as a Human Right Act,” Judge Melissa Owens of Jackson sent 14 questions to the Wyoming Supreme Court. All fourteen questions are about Title 35--Wyoming’s laws on public health and safety. They ask whether Chapter 6 is unconstitutional.

The first question is whether public health and safety regulations concerning abortions violate Article 1,

Section 38 of Wyoming’s Constitution, which says, “Each competent adult shall have the right to make his or her own health care decisions.” It further specifies that for children and the mentally competent, his or her “parent, guardian or legal representative…shall have the right to make health care decisions for that person.”

Of course, the entirety of “Title 35 – Public Health and Safety” puts restrictions on what medical procedures are allowed, under what conditions, in what places, and by what practitioners in the state of Wyoming. For instance, it prevents a citizen from asking his dentist to remove his appendix. It impinges on your freedom to have a random drug pusher prescribe oxycodone. In fact, it even restricts you from getting oxycodone from your family doctor if it is not for a strictly defined use that advances your health and does not destroy it.

The reason that these laws pass constitutional muster is that the same Article 1, Section 38, stipulates: “The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”

Representatives Chestek (D-Laramie), Provenza (D-Laramie), Sherwood (D-Laramie), Storer (D-Jackson), Yin (D-Jackson), and Dave Zwonitzer (R-Cheyenne) co-sponsored “Right of health care constitutional amendment (HJ0004) to delete this sentence from the constitution. Had it passed, not only Chapter 6, but all 32 chapters of Title 35 might have become unconstitutional. Maybe that’s why they were overwhelmingly outvoted (7-54).

Among the 32 chapters of Title 35, abortion is the only procedure that merits its own chapter. There is no chapter covering heart transplants, appendectomies, or C-sections. This should give a thoughtful person pause. What is it about abortion that makes it unfit to be included with all other medical procedures?

It is not merely that it kills a living thing. Knee replacements and appendectomies do that. So also do many pharmaceuticals. Antibiotics kill bacteria. And chemotherapy kills cancer cells. But the thing killed by abortion is different. It is neither an organ belonging to the patient nor a non-human life form invading the patient. It is a distinct human life, living naturally and harmoniously within another.

This biological fact cries out for recognition. But, of course, it cannot cry out with its own voice. The baby is hidden from sight and voiceless until she draws her first breath. She needs others with a voice and a vote to speak on her behalf. Since 1869 Wyoming legislators have spoken for her by protecting her in law.

Wyomingites have created a special chapter to deal with abortion because Wyoming recognizes two distinct humans—one with a voice of her own, the other without a voice. The little life that has no voice is contemplated in the provision that his or her “parent, guardian or legal representative…shall have the right to make health care decisions for that person.” Before this section was added in 2012, Wyoming’s constitution simply said that “all members of the human race are equal” (Article 1, Section 2).

The remaining questions that Owens puts before the Wyoming Supreme Court ask if our chapter on abortion violates eleven other sections of the constitution. She even asks about a “right to privacy” that is found nowhere, at all. The sections named are: Article 1: Section 2 Equality of all; 3 Equal political rights; 6 Due process of law; 7 No absolute arbitrary power; 18 Religious liberty; 19 Appropriations for sectarian or religious societies or institutions prohibited; 33 Compensation for property taken; 34 Uniform operation of general law; or 36 Rights not enumerated reserved to the people—and two other sections: Article 7, Section 12, Sectarianism prohibited; and Article 21, Section 25, Religious liberty.

On the face of it, all these provisions favor the equal protection of life, political rights, due process, etc. for all human lives. There is only one conceivable construal that could pit these sections of the constitution against Wyoming’s abortion law. If—and only if—the thing killed by abortion is not a human life would that make sense.

So, while Owens posits 14 questions before the Supreme Court, in reality there is only one: Is the unborn child a human life or not? The people have already spoken through their elected legislature and governor. They have said unambiguously, “[T]he unborn baby is a member of the human race under article 1, section 2 of the Wyoming constitution” (W.S. 35-6-121).

Now the people of Wyoming wait to hear if the Supreme Court will hear their cries for the unborn.