Abortion bill stripped of trigger amendment, rape and incest exemptions added

Before moving it along, lawmakers on the committee stripped the bill of a House amendment that would have made it possible to enact the legislation only if the abortion ban currently on the books is overturned in court, and added two more to insert rape and incest exemptions while lowering the barrier for lawmakers to be appointed as intervenors in future court cases challenging the bill.

The bill, sponsored by Cody Republican Rep. Rachel Rodriguez-Williams and 36 lawmakers from the House and Senate, draws on lessons learned so far in the ongoing litigation challenging the constitutionality of last year’s abortion trigger ban, which went into effect briefly before being blocked by a state judge. For now, abortions remain legal in Wyoming.

The proposed legislation includes unusual characteristics that some lawmakers have argued would infringe on separation-of-powers principles in the U.S. Constitution. Its “findings and purposes” section, for example, makes interpretations of the Wyoming Constitution, a job that’s reserved for courts, and it would give the sponsor and cosponsors of the bill power to intervene in potential court cases challenging the legislation.

Last week, Senate President Ogden Driskill told reporters that he was still weighing whether or not to let the bill proceed, citing questions around the bill’s legality and constituents’ concerns about the proposed legislation’s elimination of rape and incest exemptions. As Senate president, Driskill is responsible for assigning bills to committees. Bills that aren’t assigned automatically die after they pass certain deadlines.

By then, the bill hadn’t moved since clearing the House more than a week before in a 46-16 vote.

Forward momentum

With the approaching deadline for bills to make it out of committee in their second chamber, House Majority Floor Leader Rep. Chip Neiman, a cosponsor of the bill, and Rodriguez-Williams decided to approach Driskill in the hopes of persuading him to allow the bill to proceed. Prior to Thursday’s vote, Driskill met multiple times with sponsors of the legislation as well as Frederick Harrison, a lawyer and former lawmaker who helped draft the bill and who represents the anti-abortion group Wyoming Right to Life.

Driskill told the Star-Tribune that there were additional people involved, but that he wouldn’t name them unless they wanted him to. When asked about his involvement or lack thereof in those meetings, Wyoming Family Alliance President Nathan Winters, who has lobbied in support of the bill, said that he has “been a part of the process in all of those situations.”

Driskill ultimately referred the bill to the Senate Agriculture Committee on Wednesday, where an affirmative vote for the bill was practically a foregone conclusion. Typically, abortion-related bills are referred to the Legislature’s labor and health committees. Driskill said in a Wednesday text to the Star-Tribune that the Senate Agriculture Committee requested the bill be referred there. The committee’s chairman, Lingle Republican Sen. Cheri Steinmetz, is a cosponsor of the bill, as are two other members of the panel.

When asked what she thought ultimately convinced Driskill to allow the bill to proceed, bill sponsor Rodriguez-Williams said it was “just a matter of having a conversation with [Driskill] to see where he was at on the bill and talking to him more in depth to understand the intent a little better.”

“He was easy to work with. He was forthcoming about what his thoughts were,” she said.

Though he allowed the bill to proceed, Driskill said the sponsors and their lawyers weren’t able to address all his concerns about the bill's legality.

“I think it’s worthy of debate,” Driskill told the Star-Tribune on Thursday.

“I honestly don’t think, and I told them so, that the bill does what they think it’s gonna do. It’s likely to be back in court.”

Significant changes

Prior to Thursday’s vote, the bill had been amended in the House so that it could only be enacted if the current abortion ban is overturned in courts, essentially making it a second trigger bill.

That amendment, brought by anti-abortion lawmaker Buffalo Republican Rep. Barry Crago, was meant to skirt the risk that the bill, which repeals the abortion ban that’s currently on the books, could lead to a situation where Wyoming is left with no abortion ban at all. Crago and other lawmakers have argued that the the bill infringes on separation-of-powers principles in the U.S. Constitution and would be rejected in courts, which would lead to that scenario.

But sponsors of the bill are confident that it’s legally sound. Rodriguez-Williams went as far as to call Crago’s amendment “unfriendly to the pro-life movement” on the House floor earlier this month. She reiterated that stance on Thursday, saying that the change “eliminates the whole purpose of the bill,” which is meant to end abortion sooner by answering questions that have come up in the course of litigation against the current abortion ban.

Steinmetz moved to strip the bill of Crago’s amendment, as well as some of the legislative findings that some lawmakers have said could be problematic, such as the bill’s statements that the Legislature “may make declarations interpreting the Wyoming constitution” and that the “life of every human being begins at conception.”

The Senate Agriculture Committee added two more amendments to the bill on Thursday: one that takes out the requirement for the Legislature to pass a joint resolution to appoint the sponsor or cosponsors of the bill as intervenors in potential court cases challenging the legislation, and another to add rape and incest exemptions.

Driskill, who sponsored the latter amendment, previously told reporters that constituents’ concerns about the bill’s erasure of rape and incest exemptions was one point that had made him hesitate to allow the bill to proceed. His amendment requires that incidents of rape or incest be reported to law enforcement — and that report provided to the physician — before an abortion could legally be performed.

Driskill said that he spoke with sponsors of the bill about the amendment prior to Thursday’s committee meeting, though Neiman and Rodriguez-Williams told the Star-Tribune after the meeting that they would have preferred moving the bill along without the change.

The bill still has to go through three votes in the Senate, as well as a possible concurrence vote in the House. If the House doesn’t agree with the changes, the two chambers would need to negotiate some sort of compromise.

Lawmakers in the Senate can reject the committee’s amendments or add new ones if they choose to. It’s very likely that the bill will clear the Legislature, though after that Gov. Mark Gordon could still veto it.