A decade ago, when conservatives were attacking President Barack Obama’s Affordable Care Act as government encroachment in health care, they worked to amend state constitutions around the country to affirm a broad right for people to control their own medical decisions.

“Each competent adult shall have the right to make his or her own health care decisions,” reads section 38(a) of the Wyoming constitution’s Declaration of Rights, under the header “Right of healthcare access.” The provision was placed on Wyoming’s ballot by state lawmakers and approved by voters in 2012; voters saw ballot language that described the measure as preserving this right “from undue governmental infringement.”

Now these anti-ACA provisions—and their broad affirmations of a right to decide—have turned into an unlikely weapon in progressives’ fight against restrictions on abortion. 

Reproductive rights advocates in Wyoming have sued to strike down the state’s abortion ban, saying that this “right to make . . . health care decisions” protects abortion access. A lawsuit in Ohio has made the same case using a similar provision in Ohio’s constitution that was adopted by voters in 2011.

“If you have an amendment that says you have the freedom to choose your health care, then that’s going to apply to all health care: that’s the argument being made,” says David Cohen, a professor of law at Drexel University who studies constitutions and abortion. “It’s like, ‘you used broad words, and these broad words have certain meanings, and we’re just applying those meanings to this context.’”

In both Ohio and Wyoming, these claims have seen early success in courts. 

A trial court in Ohio issued a preliminary injunction against the state’s abortion restrictions in October. The judge found that the Health Care Freedom Amendment “bolsters the Ohio Constitution’s protection of liberty and personal autonomy and reinforces that these protections extend to Ohioans… the right to make decisions about their own bodies—including the fundamental right to make a decision as private and as central to a person’s bodily integrity as the decision to have an abortion.”

Freda Levenson, legal director of the ACLU of Ohio, which supports the lawsuit, says plainly, “The court was required to take this provision at its word: it preserves Ohioans’ freedom to choose their healthcare. And abortion is healthcare.”

In Wyoming, a trial court issued a preliminary injunction on a similar basis, concluding that it “could find that [section 38 of] the Wyoming Constitution affords all Wyoming citizens with a fundamental right to make their own health care decisions and that includes a Wyoming woman’s right to make her own decision regarding abortion.”

And provisions in several other state constitutions could be used for the same purpose.

Since the U.S. Supreme Court overturned Roe vs. Wade in June, legal organizations that are working to defend abortion rights have looked increasingly toward state courts and constitutions. This strategy’s most recent success came in January in South Carolina. Few states have constitutional language that explicitly protects abortion but many state courts have pointed to equal protection, due process, and privacy clauses to affirm a right to abortion under the state constitution, and strike down restrictions or bans on the procedure. 

Plaintiffs are now adding last decade’s anti-ACA provisions to their repertoire. In Wyoming, plaintiffs cited ten different provisions of their state constitution, including section 38 but also Wyoming-specific protections of equality and the state’s equal-protection and due-process analogs. Similarly, in arguing in court that their state’s constitution contains “broad protections for individual liberties,” Ohio plaintiffs cited its equal protection and due process analogs, as well as the health care-freedom provision created in 2012. 

“We see this as a very clear recognition by the voters of Ohio of the fundamental nature of the right to be free from government intrusion in private health care decisions,” Becca Kendis, one of the attorneys of record in the Ohio case and a Reproductive Rights Fellow at the Case Western Reserve School of Law, told Bolts about the state’s 2011 constitutional amendment. 

The ACA’s passage in 2010 was not smooth. Polling during the congressional deliberations over its provisions indicated that it was very unpopular at the time, and the immediate response by Republican attorneys general and legislatures was to undermine its provisions. Throughout the country, conservatives championed constitutional amendments that established individual rights to health care, which built on Republican messaging that the ACA deprived Americans of their ability to choose their own doctors and make medical decisions. Most of these amendments were written narrowly. They referred specifically to an individual “right” to not participate in a specific health care system and not purchase health care or insurance, or to a right of patients to directly pay for health care services and of doctors to accept direct payments.

But the amendments also included expansive language that hinted at something broader. They articulated some sort of right that went beyond not participating in regulated health care markets.

The Alabama, Arizona, Florida, and Oklahoma amendments referred—in materially identical terms—to the “freedom” of their state residents “to provide for their [own] health care,” language that echoes Wyoming’s “right” to “make health care decisions.” 

A measure in Colorado, which failed in 2010, even referred to a “right of health care choice.” 

Reproductive rights proponents today are pointing to the breadth of that language to build their case that these clauses ought to apply to the right to choose an abortion.

For Kendis, the Ohio amendment’s drafters made a political choice to phrase their measure in vague and broad terms in order to maximize support for it.

“You can’t write it to get broad support and claim afterwards that it has this narrow application,” Kendis told Bolts. “If you’re writing something broadly because you’re trying to appeal to the broader public, what you write is what you get.” She added, “There’s a lot of thought process that goes into this to determine how to gain a majority of the vote.”

In both Ohio and Wyoming, appellate courts have declined to step in to block the trial courts’ injunctions, preventing the laws from coming into effect and allowing the lawsuits to continue in the trial courts. 

Whether the Ohio and Wyoming supreme courts end up agreeing remains to be seen, though the new conservative majority in Ohio is likely uninterested in recognizing abortion rights. Still, these arguments have been cleverly framed to appeal to conservative jurists in both states. 

A mainstay of the contemporary conservative legal movement is textualism, or the idea that a text should be interpreted based on its words’ meaning at the time of its adoption, judged by what a so-called ordinary speaker of the language would understand. 

Kendis is framing her case as an easy one for such textualists. In 2011, she says, abortion was a “widely available, legal form of ‘health care’ by any plain meaning or definition of that word for four decades.”

The subjective intent of the amendment’s drafters may have been to push back against the ACA but “they could have very clearly worded this in a way that was targeting the ACA, the individual mandate,” she added. “They could’ve even defined ‘health care,’ so we really have to consider the plain meaning of the word in the text.” But that’s not what voters saw. 

“At the end of the day, when the voters are going to read their ballots and they’re reading the language, they’re deciding whether they agree with the language,” she said. “I don’t see how anyone could argue that the voters, who approved this amendment, . . . were specifically excluding the right to abortion from the type of health care that they approved protection for.” 

In two other states that adopted similar constitutional amendments last decade—Arizona and Oklahoma—abortion-rights activists are challenging the constitutionality of their state’s abortion restrictions. Litigants in neither case have cited their state constitutions’ similar health care freedom amendments—even though both are textually similar to Ohio’s. Alabama has a similar constitutional protection but voters ratified a constitutional amendment in 2018 establishing that “nothing in this constitution secures or protects a right to abortion.”

Whether litigants in Arizona or Oklahoma pursue similar arguments may depend on how the lawsuits play out in Ohio and Wyoming, though each state court system will be shaped by its own politics and members.

Still, the turnaround in these amendments’ use is a reminder of a history of unintended consequences for constitutional provisions that the right has used as well, for instance with the federal equal protections clause and affirmative action cases.

“It opens up a lot of possibilities once you look into what our constitution says, which we had not needed to rely on before Dobbs,” Kendis said.

The post How Attacks Against Obamacare Turned Into Tools to Protect Abortion Access  appeared first on Bolts.

Chuck Gray, a Wyoming lawmaker, became the first election denier running in 2022 to effectively secure promotion to secretary of state, the chief office that oversees elections in the state. 

Boosted by Trump’s endorsement, Gray prevailed in a competitive GOP primary to replace retiring incumbent Ed Buchanan; he beat fellow lawmaker Tara Nethercott 50 to 41 percent. His path forward is unobstructed since he is running unopposed in the general election. There will be no Democrat on the November ballot; an independent candidate has until Aug. 29 to jump in. (Update Aug. 30: The election division told Bolts that no independent filed by the deadline.) Someone could also mount an uphill write-in bid. 

Gray’s win in the smallest state in the union comes as politicians similarly aligned with Trump’s lies about the 2020 presidential race are advancing toward these critical election offices all around the country, including in critical swing states like Arizona, Michigan, and Pennsylvania. 

Already, sitting GOP secretaries of state who have ostensibly stayed away from the lie that the 2020 election was stolen have nevertheless trumpeted vague and baseless claims of widespread voter fraud to push for new voting restrictions.

Gray has outright called the 2020 presidential election “clearly rigged” and has echoed Trump’s specific lies about the race. He has developed relationships with like-minded Republicans elsewhere in the country who are pushing to audit results. He traveled to Arizona last year to observe an audit ordered by state Republicans—the operation ended up uncovering no major problems—and he has sought to bring that approach to Wyoming, a state dominated by Republicans that Trump won by 43 percentage points in 2020.  

Gray also proposed legislation last year to empower the state’s department of audit to audit election results, but his fellow Republican lawmakers rejected the bill last year, faulting him for disparaging the work of local election officials. 

Nethercott, Gray’s primary opponent, strongly rejected his statements about the 2020 election during the campaign, stressing that they have no objective basis.

“I called out my opponent for his rhetoric alleging that Wyoming’s election process has fraud in it, when there is absolutely no evidence of that,” Nethercott told Bolts on Thursday. “That kind of rhetoric just continues to serve to undermine the integrity of our elections, and therefore undermines democracy.”

Gray did not reply to requests for comment from Bolts.

Gray has focused his ire on ballot drop boxes, a secure method for voters to return absentee ballots in designated areas ahead of Election Day that was used sparingly in some Wyoming counties in 2020. During the campaign, Gray organized screenings of the widely–debunked film “2000 Mules,” which falsely blames ballot drop boxes for skewing the 2020 race. Gray says the movie shows “how the woke, big tech left has stolen elections with ballot drop boxes.”

In Wyoming counties that have made use of drop boxes in the past, local officials have said the practice was helpful to boost voting access, especially during a pandemic. But Gray wants to ban ballot drop boxes going forward. An outright ban would demand an intervention from the legislature, and it is largely up to county clerk offices whether to use them, but the secretary of state’s office is in a position to influence local officials; Nethercott stressed that county clerks had collaborated with the secretary of state’s office to set these up in 2020, and that Gray’s approach may chill future decisions.

Nethercott takes issue with Gray for raising false alarms about how local officials are handling elections. “I will continue to reinforce the confidence of Wyoming voters in our election system here in Wyoming through whatever voice I can and continue to support our 23 county clerks in Wyoming that administer our elections because I trust in their diligence ensuring we have that election integrity,” she said. “In Wyoming, particularly, due to our rural nature, our local county clerks know how to administer those elections best to their constituents.”

Local elections officials have faced targeted harassment since the 2020 election. All employees of the elections office of a staunchly red county in Texas resigned this week, citing threats. The use of ballot drop boxes has also grown into an issue in county clerk races around the country. 

Gray joined the legislature in 2017, and he has been a staunch conservative ever since on a wide range of issues, including fighting abortion access. But many of his legislative proposals have revolved around voting procedures. Besides his failed legislative proposal to audit elections, he was the lead sponsor of a voter ID law adopted in 2021. 

Gray routinely deploys innocuous-sounding praise for election security to say he is motivated by defending democracy, even as he champions limiting voting options and even as extensive investigations show the depths of his allies’ antidemocratic maneuvers. “Election integrity has been and will continue to be my top priority because without free and fair elections, nothing else in government that we do will matter because the will of the voters will be thwarted,” says his website. He has long used such rhetoric. “We should also want to make sure that these elections are run fairly,” he wrote in his 2011 column for the college paper The Daily Pennsylvanian. “One of the first steps in the decline of a democracy is the compromising of free and fair elections.” The column, which invited readers to support a GOP candidate in a local race in Philadelphia, alludes to allegations of voter intimidation and illegal electioneering in the Democratic city. 

Meanwhile, Gray has associated with Republicans, including Trump, who have actively plotted to overturn results. During his trip to observe what he called Arizona’s “incredible” audit, Gray trumpeted his meeting with Sonny Borrelly, a Republican state Senator who participated in “Stop the Steal” efforts to hand over Arizona’s electoral efforts to Trump despite Joe Biden’s victory in the state, including endorsing a list of fake electors that sought to overturn the will of the voters. 

Gray also faces a federal complaint, filed this month by Max Manfield, who served as Wyoming’s GOP secretary of state between 2007 and 2015, alleging that he filed fraudulent disclosures about the origin of his campaign funds while he briefly ran for Congress last year. Gray has responded that the complaint is “frivolous” and mounted by “liberal insiders.”

Heading into the 2022 midterms, proponents of Trump’s Big Lie created networks of candidates looking to take over secretary of state offices nationwide to assume more power over elections systems. Many who have run on these views have lost in Republican primaries, including in three states that border Wyoming: Idaho and Nebraska in May, and Colorado in June.

But many, like Gray, have been successful in grabbing the Republican nomination. The GOP nominees for secretary of state in at least Arizona, Michigan, Minnesota, Nevada, and New Mexico have denied the results of the 2020 election. The party’s nominee for governor in Pennsylvania, who will have the power to appoint a secretary of state if he wins, is a fervent election denier. And Republican candidates elsewhere, including in blue-leaning Connecticut and Vermont, have also voiced similar views. 

Wyoming is rarely on the radar of these conversations given its size. Since he faces no opponent, Gray is the first election denier to be virtually guaranteed that he will win a state elections office in November.  And the arrival of even one such candidate to power could help Trump allies sow further doubt about the integrity of elections by transforming an institution charged with running them into a relay for the former president’s lies. 

“What happens here is certainly an example to the rest of the nation for where the country is going, and how we get caught up in perceived fears that aren’t relevant to our own communities, based on the rhetoric that we’re constantly hearing,” Nethercott told Bolts. “And it’s important, I think, to disengage from some of that rhetoric.”

The post Meet the First Election Denier Poised to Win for Secretary of State This Year appeared first on Bolts.

The Wyoming Senate on a 18-12 vote rejected legislation that would have abolished the death penalty. The bill, which was sponsored by Republican lawmakers Jared Olsen and Brian Boner, had cleared the state House two weeks before. That alone was a significant step because the lower chamber had rejected similar legislation in each of the previous four years.

Proponents of abolition had argued that retaining the death penalty is too costly given the legal defense fund that the state maintains, even if there is no one on its death row. They also pointed to the potential for error. “It is impossible to impose the death penalty without mistakes, and the American criminal justice system provides no reliable safeguards against the execution of innocent people,” three men who were on death row before being exonerated wrote in an op-ed published Feb. 14 in the Wyoming Tribune Eagle. “Remember, there’s no reversing a wrongful execution.”

The Senate’s only three Democrats voted in favor of repeal, as did nine Republicans. Eighteen Republicans voted to keep the death penalty. One of the latter, Lynn Hutchings, offered a theological explanation. “The greatest man who ever lived died via the death penalty for you and me,” she said. “If it wasn’t for Jesus dying via the death penalty, we would all have no hope.” Others who opposed abolition defended the death penalty’s utility as a tool prosecutors can invoke when dealing with defendants.

Matt Redle, a former prosecutor, testified against abolition on behalf of the Wyoming County & Prosecuting Attorneys Association, a group that represents the state’s prosecutors. Redle told a Senate committee that 18 of the state’s 23 elected prosecutors were against repeal, while one backed it. I asked Redle which prosecutors held which position, and who were the four prosecutors who held neither position. He explained that he had reached out via email to those whose contact information he had, and that he had told them he would keep their individual stances confidential, in part to “encourage the maximum degree of honesty possible.”

The repeal bill was primarily championed by a coalition made up of the ACLU of Wyoming, the Catholic Diocese of Cheyenne, and the League of Women Voters of Wyoming. Susan Simpson, the league’s president, told me that success would require forming a broader coalition, and specifically getting the support of more religious denominations. “We need Episcopalians and LDS (The Church of Jesus Christ of Latter-day Saints) to the extent possible,” she wrote in an email.

Marguerite Herman, the group’s lobbyist, added that progress relative to past years will help in the years ahead. “The effort started small and local and grew as we gained publicity through the session,” she wrote in another email, pointing to the involvement of new actors such as Witness to Innocence, a national organization. “Awareness and apparent chance of actually succeeding will be useful in building support for future efforts.”

Legislation to abolish the death penalty also failed Wednesday, though at a much earlier stage of the process, in the Montana House Judiciary Committee.

However, two states moved forward on death penalty abolition over the past week.

In Washington, the Senate voted Friday to abolish the death penalty. The legislation now moves to the House. Washington’s Supreme Court already struck down the death penalty in October. The court pointed to a study documenting stark racial disparities in its application to rule that it was applied in an “arbitrary and racially biased manner.” This ruling left the door ajar for a legislative fix. SB 5339 looks to shut that door.

In New Hampshire, a House committee voted Wednesday in favor of an abolition bill. The bill now moves to the House floor. As I reported in November, the state’s 2018 elections gave abolition a veto-proof majority in the Senate and a likely one in the House.

Legislators have introduced bills to abolish the death penalty in other states, though they have yet to be voted on.

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