Abortion Originalism

The Wyoming Example

Originalists, since the 1970s, have critiqued Roe v. Wade primarily from a procedural vantage point. According to the original public meaning of the text of the Constitution, there is no right to an abortion. Therefore, the problem with Roe was that the judiciary usurped the decision-making power of the People in the States to decide this issue democratically, for themselves.

For instance, in a CNN interview with Pierce Morgan in 2012, while promoting his book Reading Law, Justice Scalia was asked “Should abortion be illegal, in your eyes?” He answered (as he did many times): “Should it be illegal? I don’t have public views on what should be illegal and what shouldn’t. I have public views on what the Constitution prohibits and what it doesn’t prohibit….. My view is regardless of whether you think prohibiting abortion is good, or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is, the Constitution does not say anything about it. It leaves it up to democratic choice. Some States prohibited it, some States didn’t. What Roe v. Wade said was that no State can prohibit it. That is simply not in the Constitution.”

More recently, in promoting her new book, Justice Barrett has reiterated (defending the Dobbs decision overturning Roe), “The Court’s role and essentially what the Court said in Dobbs was not that we were taking away a right but that, as properly interpreted, the Constitution did not protect that right. That it’s one left, like virtually every question, to the democratic process. That’s because … the Constitution is our fundamental document; it’s the super law. It trumps every other law and it represents our fundamental commitments as a people that we have agreed to. And that’s a product of the democratic process, that’s not a product of what the Court imposes on the democratic process.”

As a proponent of classical approaches to law, particularly when engaging with young conservatives about originalism, I often bring up a hypothetical to make a point and test the boundaries of just what we think law is really about. Is any dictate of We the People “law”? I typically then say, “What if the people of a State amend their constitution so that it entails a right to an abortion? Should we be doing ‘originalism’ there?” Unfortunately, as I have long predicted, the hypothetical is no longer hypothetical as of January 6, 2026 and the Wyoming Supreme Court’s opinion in State v. Johnson, 2026 WY 1.

Johnson concerns Wyoming’s 2023 “Life is a Human Right Act,” which prohibits the procurement of an abortion in Wyoming with certain exceptions. Groups of “doctors,” two non-profits, and an individual woman all sued the State, and the case eventually made it to the Wyoming Supreme Court. The issue was whether the Act is constitutional under Article I, Section 38 of the Wyoming Constitution, which provides:

“(a) Each competent adult shall have the right to make his or her own health care decisions.… (b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so. (c) 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. (d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.”

The upshot is that the Wyoming Supreme Court held, unanimously (5-0) that the “right” to abortion is protected by Article I, Section 38 of the Wyoming Constitution, with four Justices then concluding that the Life is a Human Right Act is unconstitutional. And it would be hard to describe their decision as anything but originalist and textualist, and self-consciously so. The Justices had some differing reasons for arriving at their ultimate conclusion, but let’s look at the majority’s reasoning (reasoning the concurrence and dissent all agreed with, making it the 5-0 holding of the Court):

How should the Court consider the issue before it? What theory of interpretation must it deploy? The Court unanimously answers: “[W]e are guided primarily by the intent of the drafters. In determining that intent, we look first to the plain and unambiguous language used in the text…. It must be presumed that in case of a constitution the people have intended whatever has been plainly expressed. Courts are not at liberty to depart from that meaning which is plainly declared. To determine what the drafters intended, we attempt to understand the meaning of the words at the time the provision was ratified.” (Citations omitted). One could not really ask for a more originalist framing of how the Wyoming Supreme Court is supposed to do its job.

Okay, now applying that framework to the key term “health care” (i.e., does that include an abortion?), what does the Court do? They are thoroughly originalist and textualist here. Neil Gorsuch could not have done it any better: “To understand the meaning of terms used in a constitutional provision, we look to their plain meaning at the time the provision was ratified.” “In 2012, the phrase ‘health care’ was defined as ‘efforts made to maintain or restore health especially by trained and licensed professionals.’” (Citing Merriam-Webster’s). The State argued that the “political climate surrounding the adoption of Article I, [Section] 38” showed that the provision was principally a “response to the Affordable Care Act, with no [public] discussion of abortion” related to it. The majority “d[id] not disagree,” but being good New Textualists, found that fact irrelevant. “That does not change the fact that the plain language of the amendment the voters ratified went beyond addressing concerns with the Affordable Care Act and granted ‘each competent adult’ ‘the right to make his or her own health care decisions.’ There is nothing in the plain language of the amendment which indicates abortion is not health care or otherwise limits access to abortion care. The plain meaning of the provision controls, and we are not at liberty to read restrictions into that language.”¹

There is a lot more to the opinion, but the core originalist/textualist reasoning is hard to miss. Indeed, the Justices in all the various opinions are emphatic about it.

I would note that all five of Wyoming’s Supreme Court Justices who decided the Johnson case were appointed by Republican governors. Justice Fenn concurred because he thought that rather than importing strict scrutiny, the test was found in the Constitution’s plain language, but his analysis was textually based, and even threw in a citation to Federalist No. 78 for good measure (he concurred, so he agreed the Act was unconstitutional). Justice Gray dissented, but not as to whether the Wyoming Constitution protects abortion. She explicitly agreed that such a right was created by the Wyoming Constitution for the reasons the majority stated—she only would have upheld the Act as a reasonable regulation of a the right to abortion.

The originalist dog has now caught the car, what shall he do with it? Is it really the case what whatever the People decide democratically is law? Will Catholic originalist judges need to recuse, as the “natural law originalists” tell us, in these kinds of cases? I do wonder how much longer we have to put up with the charade.

1. It is hard not to see Ronald Dworkin’s “level of generality” critique of originalism on full display here. The State argued for “expected applications” as the meaning fixed in 2012, while the Court chose, instead, a “semantic meaning.” This is reminiscent, of course, of the same problem in Bostock. So while the opinion styles itself originalist, we must keep in mind Professor Vermeule’s observation that originalism is ultimately illusory—judges deploy substantive principles of political morality to decide between these kinds of choices in level of generality, necessarily, and they view those principles as being internal to the law, not external, however much they may decry the use of substantive principles of political morality in judging in their rhetoric, books, speeches, interviews, and Fed Soc galas.