In State of Wyoming v. Johnson, (WY Sup. Ct., Jan 6, 2026), the Wyoming Supreme Court by a vote of 4-1 held that Wyoming's nearly total abortion ban and its medication abortion ban violate Art. I, §38, of the Wyoming Constitution which provides that every competent adult has the right to make his or her health care decision, subject to reasonable and necessary restrictions imposed by the legislature. The majority opinion for 3 justices held that the decision whether to terminate or continue a pregnancy is a woman's own health care decision, and the right to make health care decisions protected by Art. I, §38 is a fundamental right. The majority rejected the state's argument that abortion is not health care and is not the woman's own health care decision since a fetus is involved.
The majority went on to hold that restricting a fundamental right is subject to strict scrutiny and the state had not shown that the state's abortion laws are narrowly tailored to serve a compelling government interest. The majority rejected the state's argument that the statutory exceptions to the abortion ban make the law narrowly tailored to protect unborn life without unduly infringing on a woman’s fundamental right to make the health care decision to have an abortion.
Justice Fenn filed a concurring opinion, saying in part:
I agree with the majority the decision to terminate or continue a pregnancy is a woman’s own health care decision.... However, I cannot agree with the majority’s conclusion that strict scrutiny applies to the right recognized in Article 1, § 38 of the Wyoming Constitution. I would find Article 1, § 38 allows the legislature to enact reasonable and necessary restrictions that do not unduly infringe on the right to make one’s own health care decisions. Because the State failed to meet its burden of proving the Abortion Statutes meet this standard, I would find the statutes are unconstitutional and affirm the district court’s decision.
Justice Gray filed a dissenting opinion, saying in part:
I ... do not dispute that article 1, section 38 creates a fundamental right to make one’s own health care decisions. I disagree, however, that strict scrutiny applies. Under the plain terms of article 1, section 38(c), a restriction on a competent adult’s right to make his or her own health care decisions will pass constitutional muster if the legislature could “determine” such restriction was “reasonable and necessary . . . to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.” When properly construed, the abortion statutes constitute a “reasonable and necessary” restriction by the legislature on the right of a pregnant woman to make her own health care decisions for the purpose of preserving prenatal life at all stages of development. The abortion statutes do not violate article 1, section 38.
Wyoming Public Media reports on the decision.
