The sun was just coming up on May 25 when Julie Burkhart’s phone rang.
Burkhart had arrived in Casper, Wyoming, a day earlier to check on renovations to a new abortion clinic she was opening on East Second Street. The final cleaning in preparation for opening day was scheduled for the end of the week. That evening she’d done a walk-through; all looked good. But when she heard the voice of one of her contractors on the other end of the line, she knew something was wrong. “I was thinking there’s a plumbing issue,” she recalled. “‘There was a water break, right?’”
Burkhart has been involved with abortion care for decades. In 1991, she worked at a clinic in downtown Wichita, Kansas, which gave her a front-row seat to the infamous “Summer of Mercy,” when anti-abortion zealots swarmed the city determined to shut down abortion access. She later became a protégé of renowned Wichita doctor George Tiller — the main target of the 1991 protests — and worked with him up until his assassination in 2009 at the hands of a militant anti-abortion acolyte. After Tiller’s murder, Burkhart took over providing abortion care at the clinic he’d run and went on to open clinics in other states.
All of which is to say: Burkhart knows that providing abortion care can be a fraught proposition involving serious threats of violence. So when her contractor called that morning, Burkhart knew it wasn’t going to be good news, but she didn’t expect it to be as bad as it was. “‘Julie,’ he goes, ‘the building’s on fire.’ And I was like, ‘God, what the hell?’”
The clinic was slated to open in mid-June when a woman carrying a gas can broke in and set it on fire.
Burkhart had long eyed Wyoming as a prime candidate for expanding abortion access. At present, the state has one abortion provider, in Jackson, which only provides medication abortion, available up to about 10 weeks into pregnancy. Burkhart’s clinic, Wellspring Health Access, would provide medication and procedural abortion on top of a host of other health services. It would also expand abortion access in the broader region, where population centers are spread out amid a rural landscape — a swath of the country known as an “abortion desert.” In the fall of 2021, she secured the property just blocks from Casper’s bustling downtown drag and began renovations.
Although Wyoming has developed a reputation as a MAGA hotbed in recent years, its politics have always been more complicated, burnished with a live-and-let-live vibe that transcends political party. Wyoming is among a number of Western and Great Plains states that have progressive notions baked into their constitutions, including where equal rights and individual freedoms are concerned. Wyoming was the first territory in the country to grant women suffrage and led the way with a number of other firsts for women’s participation in civic and political life, earning it the nickname the Equality State.
For decades, abortion was legal in Wyoming with scant limitations up to the point of viability. Lawmakers rejected attempts to impose medically dubious restrictions that were proliferating across the country, and in the mid-1990s, voters roundly rejected a statewide ballot measure that would have banned abortion and defined life as beginning at conception.
Given that legal landscape, opening a clinic in Wyoming made sense to Burkhart. But not long after plans got underway, the future of abortion rights in the United States took a draconian turn. By the time the U.S. Supreme Court finished hearing oral arguments in the case known as Dobbs v. Jackson Women’s Health Organization in December, it was clear that the justices were poised to topple nearly 50 years of constitutional protection for abortion. In the wake of those arguments, several states intensified efforts to pass laws banning abortion that would be triggered by the imminent court ruling. Among them was Wyoming, where lawmakers rushed through a near-total ban in early 2022.
Wellspring Health Access was slated to open in mid-June when an unidentified woman carrying a gas can broke into the clinic and set it on fire. The arson remains unsolved. Just a few weeks later, the Supreme Court ruled in the Dobbs case, paving the way for Wyoming’s new abortion ban to take effect. “This is a decisive win for those who have fought for the rights of the unborn for the past 50 years,” Republican Gov. Mark Gordon said.
Despite the setbacks, Burkhart and her allies are moving ahead. The Casper clinic is being rebuilt, and a mobile clinic is in the works. If it all sounds a tad optimistic given the bleak outlook for abortion access, that’s because while federal protections for abortion have been decimated, state protections, and specifically those found in state constitutions, have not. Abortion rights advocates in Wyoming are confident that their state’s founding document speaks clearly that abortion is a right, and they’re fighting in state court to prove it.
Circling the Wagons
On a hot evening in late August, Jane Ifland welcomed a group of women to the secluded patio of her home just north of downtown Casper. Longtime Wyoming residents from both sides of the political aisle, the women had formed a community advisory committee in the spring of 2021 to support efforts to open the Casper clinic. It was committee member Christine Lichtenfels, a director of the state’s sole abortion fund, who first reached out to Burkhart about coming to Wyoming.
The intent of the committee was to help Burkhart navigate the social and political dynamics of a state where even the biggest cities — Casper, the second largest, has roughly 59,000 residents — often feel like places where everybody knows your name. For the committee, this is a good thing; they know who to go to when things need to get done. “That’s how it works,” said committee member Deb Cheatham.
They had a full agenda. There was discussion of fundraising and getting Casper’s young adults more involved. There was talk about a secure place to store the new mobile clinic (handled) and a place to park it while in operation (good leads). And in the wake of the arson, there were issues of security to discuss — and speculation about who might have torched the clinic.
“Whoever knows is not talking.”
Around 3:30 a.m. that morning in late May, a woman wearing a dark hoodie and a surgical mask gained entry to the building. In surveillance video captured by a camera in the reception area, the woman can be seen carrying a gas can toward a hallway, where she squats, pulls down her mask, and struggles to open the can. The Bureau of Alcohol, Tobacco, Firearms, and Explosives has posted a $5,000 reward for information relating to the crime.
After her contractor called to tell her the clinic was in flames, Burkhart threw on clothes and rushed to the scene. She spent the day camped out in the parking lot of a meat market across the street. Leslie Kee, a member of the advisory committee, kept her company. “I pulled my truck in there and we put the tailgate down and sat and drank coffee,” Kee recalled. “And she had to make a gazillion phone calls.”
It wasn’t until the following afternoon that Burkhart was allowed into the building. The destruction took her breath away. Furniture and equipment were charred; windows had been smashed; plastic-covered light fixtures had melted and warped; smoke lines snaked their way across the walls.
The arsonist had started the fire in an exam room, she was told. How she gained entry is, as Burkhart figures, “the $10 million question.” Investigators said it appeared that the woman had broken a front window and climbed into an entryway. Burkhart is skeptical. Flipping through her phone, she found a photo of the window in question, the edges punctuated by spikes of glass. She doesn’t see how the woman could have climbed through without cutting herself. Which makes her wonder: Could the arsonist have gotten the code to enter the building from someone on the inside?
The Bureau of Alcohol, Tobacco, Firearms, and Explosives posted video footage of the arsonist at the Wellspring Health Access clinic.
Burkhart has other theories. She thinks the arsonist had an accomplice; in a 27-second video clip that police released, Burkhart believes the woman is talking on the phone, perhaps to someone waiting outside in a car. (During questioning, investigators asked Burkhart a lot about various cars.) Burkhart wonders if it might have been someone from out of state, maybe from neighboring South Dakota or Colorado. She acknowledges this would be a long way to travel to torch her clinic, but it would explain why no one in Casper has come forward with any intel.
Holly Waatti-Thompson, who founded the advisory committee, thinks it was someone from Casper, and that the city’s anti-abortion forces, centered in area churches, have circled the wagons to protect the perpetrator. “Unfortunately, their religious beliefs are interfering with their ability to reason and their ability to think,” she said. Other members of the committee agree. “Whoever knows is not talking,” Kee said. But she’s certain that “some people” around town know exactly who was responsible.
About a month before the fire, anti-abortion protesters began gathering outside the clinic on Thursday afternoons. At first it was just a quiet affair, Waatti-Thompson said, but it has since grown into something akin to “street theater.”
The protests are coordinated by Bob Brechtel, a former state representative who has boasted that the anti-abortion demonstrators come from 37 different churches and that he intends to keep protesting as long as necessary. “Rule of law is important,” he told Kaiser Health News, “but what’s more important is that we do have people who are accepting and understanding of our purpose to defend human life at all stages.”
Ironically, it is work Brechtel did while in the Wyoming Legislature that has buoyed the hopes of folks like Burkhart that abortion will remain legal in the state and plans for a brick-and-mortar clinic will be realized.
“Each competent adult shall have the right to make his or her own health care decisions.”
Back in 2011, Brechtel was a House sponsor of the state Senate’s “Health Care Freedom” resolution, which aimed to enshrine health care access into the state’s constitution. The resolution led with the broad promise that “each competent adult shall have the right to make his or her own health care decisions.” Additional provisions included a right to pay for health care out of pocket and a commitment that the state would “act to preserve these rights from undue governmental infringement.”
The resolution was filed in reaction to Congress passing the Affordable Care Act. State lawmakers were dismayed by the notion that Wyomingites might be forced into purchasing health insurance and wanted to push back. Floor debates on the resolution were limited, and while some lawmakers pointed directly to the ACA as the reason for their support, others talked about health care — and government overreach — more broadly. “We don’t agree with government from the highest possible level enforcing something so intimate as the health care decisions that we make for ourselves and for our children,” then-state Rep. Amy Edmonds told her colleagues.
The resolution easily passed, and in November 2012, 73 percent of voters cast a ballot in favor of adding a new section to the state constitution. The right of health care access laid out in Article 1, Section 38 is now at the center of efforts to protect abortion rights in the state.
Two men walk in front of the Wyoming Republican Party headquarters in Cheyenne, Wyo., on July 19, 2022.
Health Care Freedom
In 1920, the town of Jackson, in Teton County, became the first in Wyoming to be governed entirely by elected women. The press dubbed the administration the “petticoat government.” In 1922, Mayor Grace Miller summed up their approach to governing: “We simply tried to work together,” she said. “What is good government but a breathing space for good citizenship?”
On July 25, Burkhart and five other female plaintiffs picked up that mantle and filed suit in Teton County seeking to block the state’s abortion ban, which was slated to take effect two days later. Burkhart’s clinic and Lichtenfels’s abortion fund joined two doctors, a pregnant emergency room nurse, and a third-year law student to argue that the ban, which contains only narrow exceptions, violated multiple provisions of the Wyoming Constitution, including the explicit guarantee of Article 1, Section 38.
If the law went into effect, they argued, “Wyomingites, and especially women, lose their right to decide whether and when to become parents; their right to determine the composition of their families; their entitlement to be free from discriminatory state laws that perpetuate stereotypes about women and their proper societal role; their right to bodily integrity and to be free from involuntary servitude; their freedom of conscience; their right to access appropriate health care and make private health care decisions; and their right to bodily autonomy and liberty.”
In response, the state has tossed a mishmash of arguments at District Judge Melissa Owens to explain why the Wyoming Constitution doesn’t protect abortion. Special Assistant Attorney General Jay argues that interpretation of the state constitution is somehow tethered to Supreme Court interpretations of the federal Constitution — in other words, that because the Supreme Court says there’s no federal protection for abortion, one can’t be found anywhere in the Wyoming Constitution.
“There’s nothing vague about this statement: ‘No abortion shall be performed.’”
As for concerns that the state’s ban is vague — and would leave doctors and patients unsure of the conditions under which abortion is legal, as has happened across the country — there is a simple fix, Jerde says: Just remove the ban’s exceptions for the health of the pregnant person and cases of rape and incest. “There’s nothing vague about this statement: ‘No abortion shall be performed,’” he told Owens during an August court hearing.
Then there are the state’s claims about why the protections afforded by Article 1, Section 38 simply don’t apply. For starters, the amendment only protects an individual’s right to choose among “health care services” that Wyoming politicians have decided are legal, according to Jerde; if the Legislature has decided abortion isn’t legal, then there’s no right to it.
And he argues that the point of the amendment was solely to protect Wyoming residents from having to pay for insurance under the ACA — that is, the promise to defend health care freedom from “undue government infringement” only applies to federal overreach, not state infringements.
To properly understand the amendment’s guarantees, Jerde argues, the court must determine what lawmakers intended in passing the resolution and what voters thought when they cast their ballots. And since the amendment doesn’t contain the word abortion, “no voter … could reasonably believe that, in voting to ratify section 38, she was amending the Wyoming Constitution to implicitly confer the right to abortion.”
Wyoming Special Assistant Attorney General Jay Jerde listens to oral arguments from plaintiffs’ attorneys in Ninth District Court on Aug. 9, 2022.
Our Own Rights
To Sharon Breitweiser, executive director of Pro-Choice Wyoming, Jerde’s assertions are nonsense.
Breitweiser has lobbied in the halls of the state Capitol for decades, working with lawmakers on both sides of the aisle to keep abortion legal in the state. Her organization led the fight against the 1994 constitutional amendment that would have banned abortion and defined life at conception; in a landslide vote, the amendment was rejected. During debate over the health care resolution in 2011, she said it was “absolutely” obvious that the proposed amendment would include abortion. People came up to her and said, “Do they realize that they just protected abortion?” she recalled. In 2012, Breitweiser began adding information about the amendment’s protections to abortion fact sheets the organization provides to lawmakers. “Every single legislative session,” she said.
Legal experts say that the state’s interpretation, not only of the amendment but also the constitution more broadly, is just wrong. Wyoming’s constitution has robust protections for “personal autonomy and individual freedoms,” said Kenneth Chestek, a law professor at the University of Wyoming. “That is not a partisan thing, I don’t think. It’s something that everybody really can get behind who lives out here.”
Chestek says he thinks a lot of residents would be shocked by the notion that the Wyoming Constitution is somehow cramped by whatever the U.S. Supreme Court says about the federal Constitution. “Are you kidding me? The biggest sin that a politician can have in the state of Wyoming is to be beholden to people in Washington, D.C.,” he said. “We have our own power, our own rights, and we are not beholden to anybody, especially not the federal government.”
“We don’t care why it was adopted. It was adopted, it is clear, it is enforced.”
Where Article 1, Section 38 is concerned, he says the arguments about whether lawmakers or voters intended their rights to be limited to battling ACA mandates is inconsequential. Rules of statutory interpretation require that the law be enforced as written. “Whatever it says, you enforce it. And if it’s clear, you’re done.” He sees the amendment as unambiguously granting individuals the right to their own health care decisions. “Abortion is a health care choice for the woman. Absolutely. I can’t think of any argument to say that it is not a health care choice,” he said. The amendment is “directly applicable. There is nothing to interpret. We don’t care why it was adopted. It was adopted, it is clear, it is enforced.”
Robert Keiter, a former Wyoming law professor who literally wrote the book on the Wyoming Constitution, agrees. Although Jerde cited Keiter’s work for the proposition that the health care amendment should be cabined to the ACA, Keiter says it’s clear that its protections are much broader. “The language goes way beyond any immediate reaction to Obamacare,” he said. “I don’t know how you get beyond the language.”
Keiter also notes that the state constitution is explicit in granting equal rights for women. In 1869, when Wyoming was still a territory, it granted women voting rights, and women quickly gained positions of power and influence in broader civic life. When Wyoming codified its state constitution, it included “an explicit equal protection provision referring to gender,” he said, “which is highly unusual.”
“Since equality in the enjoyment of natural and civil rights is only made sure through political equality,” that section reads, state laws “shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency.”
Taken together, Keiter says, the constitution’s health care and equality amendments “recognize a fundamental right to reproductive choice on the part of a woman.”
In August, Owens, the district judge, concluded that the state’s abortion ban should be blocked during the pendency of the litigation. She noted that because the ban singles out those who can become pregnant and impermissibly “restricts” their health care rights, the plaintiffs would likely be successful on several of their constitutional claims. “Discrimination on the basis of sex is explicitly prohibited under the Wyoming Constitution,” she wrote.
Live and Let Live
When state Rep. Pat Sweeney joined the Wyoming House in 2017 as a Republican representing Natrona County, where Casper is located, he didn’t consider himself pro-choice. He’d spent years in the hospitality business, owning a hotel, bar, and steak joint in town. He worked around employees from all walks of life and saw abortion as health care, but he hadn’t really thought much more about it.
But after nearly 30 years of rejecting abortion restrictions, state lawmakers appeared on track to pass several that year. Sweeney sat on the Labor, Health, and Social Services Committee. He remembers listening to hours of testimony and thinking to himself, “What gives a bunch of older white men in the Legislature … the right to take these fundamental rights away from women?” After he voted no on one measure, he recalls being confronted by Brechtel, the former state representative behind the anti-abortion protests, and Frank Eathorne, now the controversial chair of the state GOP. “‘You claim to be a Republican?’” he says Eathorne asked. “Very insulting and very demeaning, he and Bob Brechtel … so that has stuck with me.”
“Just open your mind a little bit, would you? But she didn’t.”
That kind of nastiness has washed over the state Republican Party, said Sweeney — who voted for Donald Trump twice (his policies were good for the state’s extraction industries, he said) and recently lost his reelection bid — and was on full display during debates over the trigger bill in February. Sweeney recalled watching as a female colleague made an impassioned speech against the measure while the bill’s sponsor, Rep. Rachel Rodriguez-Williams, stared her down, “just won’t take her eyes off her, with a shit-eating grin. And I’m thinking, ‘Wow, do you have no respect for anybody except your point of view, and only your point of view?’” he said. “Just open your mind a little bit, would you? But she didn’t.”
Rodriguez-Williams, the executive director of a crisis pregnancy center in Cody, has now joined with Right to Life of Wyoming in an attempt to intervene in the lawsuit over the ban. In a brief filed in Owens’s court, lawyers with the Alliance Defending Freedom, a far-right Christian legal organization that the Southern Poverty Law Center has designated a hate group, argued that the state wasn’t putting on the kind of evidence needed to demonstrate the legality of the ban — including an assertion that abortion isn’t actually health care. Owens hasn’t yet ruled on their request.
In the meantime, Burkhart’s mobile abortion clinic is on track to open in November. A new round of renovations to Wellspring Health Access is well underway. The clinic still sees weekly anti-abortion protests, and the investigation into the arson is ongoing. With all the setbacks and legal wrangling, Burkhart says that people have asked her why she’s pressing forward. She’s motivated by the patients who need care and the memory of her mentor, George Tiller. “Tiller always said, ‘solutions, not problems.’”
Sweeney joined Burkhart for an abortion rights rally in Casper this spring, where he urged people to vote and run for office. He hopes that Wyomingites can return to talking respectfully to one another and to their live-and-let-live roots. Members of the advisory committee were at the rally too: Kee, Waatti-Thompson, and Ifland spoke. So did Riata Little Walker.
Back on Ifland’s patio in Casper, Little Walker, a native Wyomingite and “traditional Republican,” said that if you’d asked her a few years ago, she would’ve said she was pro-life, with exceptions for incest and rape. “That’s all that had ever been presented to me as an issue,” she said. “My perspective … was very narrow.” Then she got married and pregnant. “And everything was wonderful,” she said. Until it wasn’t. At 21 weeks, they found out the fetus was very sick. Little Walker had to travel to Denver for help, where she had a choice of termination or induced labor and delivery. She chose the latter. The couple held their daughter “and she died in our arms.”
The experience was transformative. Little Walker realized that the notion that all terminations were of pregnancies that would have developed into healthy babies was nonsense. She thought that discussing termination for medical reasons would be a “good bridge for the people who are uncomfortable with the whole abortion thing and thinking that you’re killing a perfectly healthy, innocent baby just because somebody doesn’t want it,” she said. “And we all know how absurd that argument is.”
She reached out to Breitweiser of Pro-Choice Wyoming and began testifying at the legislature. Her message: “It’s not black and white.” Her goal is to get people to think more deeply about the issue, and to understand that legislation like Wyoming’s ban takes choice and health care away from everyone in every situation, including the most dire. If you can “get them to start thinking about it,” she said, then “you can slowly get there.”
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