Wyoming Article 1, § 38 Protects Abortion as a Fundamental Health Care Decision; Strict Scrutiny Applies; Salerno “No-Set-of-Circumstances” Facial-Challenge Standard Rejected

Contents

• 1. Introduction
• 2. Summary of the Opinion
• 3. Analysis
  • 3.1 Precedents Cited
  • 3.2 Legal Reasoning
  • 3.3 Impact
• 4. Complex Concepts Simplified
• 5. Conclusion

1. Introduction

This appeal arose after Wyoming enacted two major abortion restrictions in 2023: the Life is a Human Right Act (Wyo. Stat. Ann. §§ 35-6-120 to 35-6-138) and a separate medication-abortion prohibition (Wyo. Stat. Ann. § 35-6-139). Immediately upon their effective dates, a coalition of plaintiffs—physicians, two nonprofits, and individual women—sued the State and enforcement officials, seeking declaratory and injunctive relief under the Wyoming Constitution.

The case’s constitutional center of gravity is a voter-adopted 2012 constitutional amendment—Wyo. Const. art. 1, § 38—providing: “Each competent adult shall have the right to make his or her own health care decisions,” and directing the State “to preserve these rights from undue governmental infringement,” while also stating: “The legislature may determine reasonable and necessary restrictions….”

Although the parties advanced multiple constitutional theories, the Supreme Court treated a single question as dispositive:

Do the Wyoming laws restricting access to abortion unduly infringe on a woman’s right to make health care decisions under Article 1, § 38 of the Wyoming Constitution?

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

A. Separation of powers and the judiciary’s duty to review constitutionality

The Court framed its role as constitutionally compulsory rather than discretionary, responding to the State’s urging that abortion policy should be left to the legislature. The majority invoked:

• Witzenburger v. State ex rel. Wyoming Cmty. Dev. Auth., 575 P.2d 1100 (Wyo. 1978) (courts must invalidate statutes that transgress the constitution despite deference).
• Billis v. State, 800 P.2d 401 (Wyo. 1990) (judicial review inherently affects legislative enactments).
• Conrad v. Uinta Cnty. Republican Party, 2023 WY 46, 529 P.3d 482 (Wyo. 2023), quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (“province and duty…to say what the law is”).
• Washakie Cnty. Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo. 1980) (Wyoming separation-of-powers confirms judicial authority to invalidate unconstitutional statutes).

These precedents mattered because the State’s core rhetorical move—“the legislature is closest to the people”—would have converted constitutional adjudication into political deference. The majority rejected that as incompatible with Wyoming’s explicit separation-of-powers clause (Wyo. Const. art. 2, § 1).

B. Levels of scrutiny, burdens, and Wyoming’s fundamental-rights cases

The Court’s strict scrutiny choice and burden-shift depended heavily on Wyoming’s existing doctrinal architecture:

• Martin v. Bd. of Cnty. Comm'rs of Laramie Cnty., 2022 WY 21, 503 P.3d 68 (Wyo. 2022) (rational basis for ordinary rights; heightened scrutiny for fundamental interests).
• Hardison v. State, 2022 WY 45, 507 P.3d 36 (Wyo. 2022) (when fundamental rights implicated, presumptions invert and government must justify the statute).
• Reiter v. State, 2001 WY 116, 36 P.3d 586 (Wyo. 2001) (quoted in Hardison for burden inversion).
• Mills v. Reynolds, 837 P.2d 48 (Wyo. 1992) (strict scrutiny applied to statutes restricting a fundamental right under Article 1, § 8).
• Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995) (fundamental right—education—requires compelling interest and least-onerous means; State’s generalized justifications insufficient).
• White v. State, 784 P.2d 1313 (Wyo. 1989) (example where explicit constitutional limitation altered scrutiny; used by majority to explain that express constitutional text can modify the test).
• Almada v. State, 994 P.2d 299 (Wyo. 1999) and Owens v. State, 2012 WY 14, 269 P.3d 1093 (Wyo. 2012) (Article 1, § 4 “reasonableness” framework for searches; used as example that text can define the test).

The majority positioned Article 1, § 38 as both: (i) an explicit fundamental-right guarantee (triggering heightened scrutiny under Mills/Campbell/Hardison), and (ii) a text that “embodies strict scrutiny principles” through its “necessary” and “undue infringement” language.

C. Constitutional interpretation methodology

The opinion leaned on Wyoming interpretive cases emphasizing plain meaning at ratification and whole-document harmony:

• Gordon v. State, 2018 WY 32, 413 P.3d 1093 (Wyo. 2018) (plain language; meaning at ratification; courts may not add words).
• Saunders v. Hornecker, 2015 WY 34, 344 P.3d 771 (Wyo. 2015) and Hede v. Gilstrap, 2005 WY 24, 107 P.3d 158 (Wyo. 2005) (in pari materia; no clause rendered superfluous).
• Steele v. Neeman, 6 P.3d 649 (Wyo. 2000), Parker Land & Cattle Co. v. Wyo. Game & Fish Comm'n, 845 P.2d 1040 (Wyo. 1993), and Solvay Chems., Inc. v. Wyo. Dep't of Revenue, 2022 WY 122, 517 P.3d 1123 (Wyo. 2022) (extrinsic aids when ambiguous, and sometimes to confirm plain meaning).

This framework underwrote the holding that “health care” includes abortion care despite evidence that the 2012 amendment was politically motivated by Affordable Care Act concerns. The majority treated the political impetus as extrinsic context that cannot narrow clear text.

D. Evidence, “legislative facts,” and strict scrutiny proof burdens

The Court adopted an expansive view of legislative/constitutional facts in constitutional adjudication, citing:

• Campbell v. Dep't of Fam. Servs., 881 P.2d 1066 (Wyo. 1994) (adjudicative vs legislative facts).
• Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (constitutional facts; error to exclude relevant materials for constitutionality review).
• Armour v. City of Indianapolis, 566 U.S. 673 (2012) (legislative facts in rational basis).
• Fisher v. Univ. of Texas, 579 U.S. 365 (2016) (evidence for strict scrutiny justification).
• Reno v. Am. C.L. Union, 521 U.S. 844 (1997), Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992), Brown v. Bd. of Educ., 347 U.S. 483 (1954), Minn. v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), and State ex rel. T.B. v. CPC Fairfax Hosp., 918 P.2d 497 (Wash. 1996) (courts may consider broad materials and studies to adjudicate constitutionality).

This evidentiary stance was pivotal because the State largely refused to engage on narrow tailoring (and attempted to cabin “relevant” facts to amendment history and abortion-regulation history), while Plaintiffs supplied extensive medical and public health evidence. The majority held that strict scrutiny is a legal test but turns on constitutional facts that must be proven by the government when burdens invert.

E. Facial challenges: overruling the Salerno “no set of circumstances” framing

One of the decision’s largest doctrinal shifts is not abortion-specific: the Court overruled Wyoming’s reliance on the Salerno-derived “no set of circumstances exists” formulation, previously referenced in Gordon v. State. The majority adopted the Tenth Circuit’s approach in:

• Doe v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012) (facial challenge attacks the statute’s terms; Salerno describes a possible result, not the test).

It traced Wyoming’s earlier borrowing to:

• United States v. Salerno, 481 U.S. 739 (1987) (origin of the disputed phrase).

And justified overruling under Wyoming’s stare decisis principles, relying on:

• Smith v. Bd. of Cnty. Comm'rs of Park Cnty., 2013 WY 3, 291 P.3d 947 (Wyo. 2013) (stare decisis not inexorable).
• Bienz v. Bd. of Cnty. Comm'rs, Cnty. of Albany, 2024 WY 102, 556 P.3d 227 (Wyo. 2024), quoting Brown v. City of Casper, 2011 WY 35, 248 P.3d 1136 (Wyo. 2011) (depart when unworkable/poorly reasoned).

The Court also aligned itself with federal criticisms, citing Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) (facial/as-applied line not rigid) and City of Chicago v. Morales, 527 U.S. 41 (1999) (Salerno not decisive).

F. Abortion and related state/federal authorities used as persuasive support

While the holding is grounded in Article 1, § 38, the Court used abortion-era precedent and post-Dobbs state cases to illuminate strict scrutiny concepts and narrow-tailoring failures:

• Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022) (federal baseline shifted; states regulate; cited for contextual framing, not as controlling under state constitution).
• Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992) (overruled on other grounds by Dobbs; cited for evidentiary approach and obstacle analysis examples).
• Okla. Call for Reproductive Justice v. Drummond, 543 P.3d 110 (Okla. 2023) (life-saving abortion restrictions; narrow tailoring concerns).
• Access Indep. Health Servs., Inc. v. Wrigley, 16 N.W.3d 902 (N.D. 2025) (Access Indep. Health Servs. Inc. I) (psychological-malady carve-outs appear arbitrary under strict scrutiny logic; later merits outcome noted in opinion).
• Students for Fair Admissions, Inc. v. Pres. & Fellows of Harvard Coll., 600 U.S. 181 (2023) (strict scrutiny must actually fit ends/means; internal inconsistency undermines narrow tailoring).
• United States v. Playboy Ent. Grp., Inc., 529 U.S. 803 (2000) and Shaw v. Hunt, 517 U.S. 899 (1996) (government’s evidentiary burden under strict scrutiny; least-restrictive-means proof).
• Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (underinclusiveness as a narrow-tailoring failure).

3.2 Legal Reasoning

A. Defining the right: “health care” includes abortion care

The Court treated statutory legislative findings (“abortion…is not health care”) as non-controlling because “a statute does not and cannot define the scope of constitutional rights,” citing Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584 (10th Cir. 1999), and similar logic from Powell v. Hocker, 516 S.W.3d 488 (Tex. Crim. App. 2017).

Using plain meaning at ratification (Gordon v. State), the Court relied on contemporaneous dictionary definitions of “health care,” “health,” and “decision,” and then grounded those definitions in record evidence about pregnancy-related physical and mental health risks and the relative safety of legal abortion. That method created a two-step syllogism:

• Pregnancy affects “sound[ness] in body, mind, or spirit” and may involve serious risk.
• Abortion, performed/administered by medical professionals, can “restore” health conditions affected by pregnancy; thus it fits “health care.”

The State’s “Obamacare-only” history argument was treated as insufficient to overcome unqualified constitutional text. The Court underscored it could not “add words to the Wyoming Constitution” (invoking Delcon Partners LLC v. Wyo. Dep't of Revenue, 2019 WY 106, 450 P.3d 682 (Wyo. 2019)), while noting lawmakers could seek a clarifying amendment—citing, by example, Planned Parenthood S. Atl. v. State, 882 S.E.2d 770 (S.C. 2023) and Planned Parenthood of Mont. v. State by and through Knudsen, 570 P.3d 51 (Mont. 2025).

B. “A woman’s own” decision vs fetal-life interests

The Court refused to let fetal-life considerations redefine the constitutional right out of existence. It called the State’s approach a conflation:

• Whether the choice is the woman’s health-care decision (yes, because it concerns her body, health, circumstances); versus
• Whether and to what extent the State may restrict that decision (the scrutiny/justification question).

C. Fundamental-right classification under Wyoming law

Relying on Mills v. Reynolds and similar Wyoming formulations (a right “explicitly or implicitly” guaranteed is fundamental), the majority held Article 1, § 38’s explicit guarantee makes the right fundamental. It also emphasized placement in the Declaration of Rights and (in a footnote) referenced legislative history showing the amendment was moved into Article 1 because it was meant to be a “right.”

D. Selecting the constitutional test: strict scrutiny vs “reasonable and necessary” as a standalone test

The key internal disagreement among the Justices concerns whether Article 1, § 38 supplies its own standard (“reasonable and necessary” restrictions; “undue infringement”) that displaces strict scrutiny. The majority held:

• Wyoming precedent generally applies strict scrutiny to statutes burdening fundamental rights (Mills, Campbell Cnty. Sch. Dist., Martin, Hardison).
• The text of § 38(c) and (d) (“necessary,” “undue”) is consistent with strict scrutiny’s demand for necessity and narrow tailoring; thus strict scrutiny is the appropriate operational test.
• The State’s preferred rational basis review fails to honor “necessary” and “undue infringement” and would invert the burden contrary to § 38(d)’s protective command.

Justice Fenn agreed the statute failed but would not “harmonize” into strict scrutiny; he would directly apply Article 1, § 38’s “reasonable and necessary restrictions” and “undue infringement” language as a constitutionally defined test. Justice Gray likewise centered § 38’s “reasonable and necessary” but would defer to legislative determination and warned strict scrutiny threatens broad health regulation.

E. Strict scrutiny applied: the State’s evidentiary failure was decisive

Even assuming (without deciding) that “protecting prenatal life at all stages of development” is compelling, the majority found the State presented no evidence to prove the laws are narrowly tailored. The Court emphasized strict scrutiny requires proof, not assertion, citing:

• Operation Save Am. v. City of Jackson, 2012 WY 51, 275 P.3d 438 (Wyo. 2012) (no evidence, no compelling-interest satisfaction).
• United States v. Playboy Ent. Grp., Inc., 529 U.S. 803 (2000) (least restrictive means requires evidentiary showing).
• Shaw v. Hunt, 517 U.S. 899 (1996) (compelling-interest and tailoring proof).

The Court then highlighted three examples where Plaintiffs’ evidence suggested non-tailoring, and the State supplied nothing to rebut it:

1. Lethal fetal anomaly exception (Wyo. Stat. Ann. §§ 35-6-124(a)(iv), 35-6-122(a)(vi)): Plaintiffs’ physicians described medical uncertainty in predicting whether death will occur “within hours” after live birth; criminal penalties create chilling effects and likely force continuation of lethal pregnancies. The State provided no evidence that the “hours” limitation advances fetal-life interests or is the least restrictive approach.
2. Life/health exception in Medication Ban excludes mental health and self-harm risk (Wyo. Stat. Ann. § 35-6-139(b)(iii)): Plaintiffs produced evidence that mental health conditions are a leading cause of maternal death and pregnancy can induce/exacerbate mental illness; the statute’s categorical exclusion appeared arbitrary and potentially counterproductive (risking both maternal and fetal death). The Court drew support from Access Indep. Health Servs., Inc. v. Wrigley, 16 N.W.3d 902 (N.D. 2025) (Access Indep. Health Servs. Inc. I).
3. Incest/sexual assault exception requires law-enforcement reporting and producing a copy to a physician (Wyo. Stat. Ann. § 35-6-124(a)(iii)): Plaintiffs’ prosecutorial expert described underreporting dynamics, modern reporting formats (often not “written”), and particular barriers for minors and victims in intrafamilial abuse contexts; the requirement may operate as an access barrier. The State offered no evidentiary justification that this mechanism is necessary or least restrictive.

Because the State did not carry its strict-scrutiny burden, the Court affirmed the injunction and did not reach vagueness, equal protection, substantive due process, or religion clauses claims.

3.3 Impact

A. Immediate doctrinal impact in Wyoming constitutional law

• Abortion is constitutionally protected health care decision-making under Article 1, § 38. This is a state-constitutional holding independent of federal Dobbs doctrine.
• Strict scrutiny (majority) becomes the operational test for statutes that substantially burden the Article 1, § 38 right—at least in the abortion context—shifting burdens to the State and requiring actual evidence of narrow tailoring.
• Facial challenge doctrine changes statewide: The Court overruled the Salerno “no set of circumstances exists” framing for facial challenges and adopted the approach described in Doe v. City of Albuquerque. This will affect constitutional litigation far beyond abortion (speech, firearms, criminal statutes, election law, etc.).
• Legislative/constitutional fact record matters: The Court signaled that broad evidentiary submissions (studies, reports, expert affidavits) are fair game in state constitutional litigation, and that government must meet evidentiary burdens under heightened review.

B. Practical impact for Wyoming abortion regulation

• The 2023 Life Act and Medication Ban are unenforceable as unconstitutional under Article 1, § 38, unless and until altered by constitutional amendment or replaced by a statute that can satisfy the applicable test (strict scrutiny per majority; “reasonable and necessary” per concurrence’s view).
• The Court invited a political-constitutional response: It suggested the legislature could ask voters to amend the constitution to more clearly address abortion, because courts cannot add limiting language to § 38.
• Future legislation must be evidence-driven: The majority’s approach implies that legislative findings alone are not enough; in litigation, the State must marshal proof that specific restrictions are the least burdensome means to protect prenatal life without undue infringement.

C. Broader regulatory ripple effects and the fault line within the Court

Justice Gray’s dissent previewed a major future battleground: whether strict scrutiny should apply to all Article 1, § 38 restrictions, potentially destabilizing broad health-care regulation (vaccinations, controlled substances, involuntary commitments, facility licensing, etc.). The majority attempted to cabin this concern by rooting strict scrutiny in fundamental-right doctrine and by insisting courts do not downgrade scrutiny simply because more litigation might follow. Still, the dissent’s warning underscores that the decision’s full sweep will likely be tested in subsequent cases.

4. Complex Concepts Simplified

• Fundamental right: A right the constitution explicitly guarantees (here, the right of each competent adult “to make his or her own health care decisions”). When a law burdens a fundamental right, courts usually demand stronger justification than “this seems reasonable.”
• Strict scrutiny: The toughest common constitutional test. The government must prove (1) a compelling interest and (2) the law is narrowly tailored—the least burdensome workable way to achieve that interest.
• Narrow tailoring / least restrictive means: The law can’t be broader than necessary. If a less burdensome approach could achieve the same objective, the challenged law fails.
• Overinclusive vs underinclusive:
  • Overinclusive: the law restricts more conduct than needed to serve the government’s interest.
  • Underinclusive: the law leaves unregulated conduct that undermines the claimed interest, suggesting the government’s explanation may not be the real reason or the fit is poor.
• Facial vs as-applied challenge:
  • Facial: attacks the statute’s terms “on its face.”
  • As-applied: attacks how the statute operates in a particular situation.
  Wyoming rejected the rigid Salerno “no set of circumstances exists” framing and adopted the view that the real question is whether the statute fails the applicable constitutional test; if it does, then it cannot be applied constitutionally.
• Legislative (constitutional) facts vs adjudicative facts:
  • Adjudicative facts: who did what to whom (typical trial facts).
  • Legislative/constitutional facts: general facts (medical data, social science, history) used to evaluate whether a law is justified under constitutional standards.

5. Conclusion

State v. Johnson is a landmark Wyoming constitutional decision in three ways. First, it squarely holds that abortion is “health care” and that deciding whether to continue a pregnancy is a woman’s “own health care decision” protected by Wyo. Const. art. 1, § 38. Second, the majority subjects abortion restrictions to strict scrutiny and invalidates the 2023 Life Act and Medication Ban because the State offered no evidence that the statutes’ architecture and exceptions are narrowly tailored to protect prenatal life without undue infringement. Third, it reshapes Wyoming constitutional procedure by overruling reliance on the Salerno “no set of circumstances” formulation for facial challenges and adopting the approach described in Doe v. City of Albuquerque.

The decision’s enduring significance will likely turn on how broadly lower courts and future panels apply its Article 1, § 38 framework beyond abortion—an issue highlighted by Justice Fenn’s textualist concurrence (favoring a constitution-defined test) and Justice Gray’s dissent (favoring deference to legislative determinations under § 38(c)).