The same group of abortion rights advocates whose legal challenges have stymied past attempts to stop or limit abortion in Wyoming is seeking to block part of another new law.

That statute, which goes into effect July 1, codifies what is already a long-standing medical practice: that providers can legally prescribe U.S. Food and Drug Administration-approved medications for unapproved or off-label uses without fear of punishment from Wyoming licensing boards. But the new law exempts drugs intended to induce an abortion from those protections.

Abortion rights advocates worry the law “indirectly bans abortion medication by threatening physicians and pharmacists with disciplinary action for prescribing off-label use” of certain drugs that are commonly used for medication abortions. On Monday, they asked a judge to block enforcement of the part of the statute that pertains to abortion while their broader lawsuit against it and two other new abortion laws proceed through the courts.

State attorneys, who are defending all three of the laws, asked Judge Thomas T.C. Campbell to allow the off-label law to go into effect as written. They dispute that the law is another attempt to limit access to abortion medications in Wyoming. Instead, they contend it merely clarifies that the law would not supersede the Wyoming Legislature’s 2023 ban on abortion medications, which is on hold pending a Wyoming Supreme Court ruling expected later this year.

In the meantime, abortion remains legal in Wyoming.

Off-label prescriptions

Prescribing medications for off-label purposes — in other words, uses not approved by the FDA — is common practice and can be a valuable tool for health care providers. Drugs approved to treat one type of cancer might be prescribed off-label for another type of cancer. Or a doctor might, for example, prescribe propranolol, which is approved for treatment of high blood pressure, for some types of anxiety. A medication in a different dose than what is FDA-approved would also qualify as off-label use.

In 2023, the Wyoming Legislature considered a bill intended to offer protections for providers who prescribe off-label drugs. Then Rep. Sarah Penn, R-Lander, sponsored the bill in the wake of a COVID-era controversy over hydroxychloroquine, an FDA-approved malaria drug that some providers prescribed to treat the virus. Some of those doctors faced the prospect of disciplinary actions in other states for providing what critics said was misinformation about the drug.

Penn’s bill failed, but Rep. Gary Brown, R-Cheyenne, successfully brought back a similar measure this year. House Bill 164, “Medical prescriptions-off-label purposes,” codified the practice of prescribing off-label medications. But it specified those protections did not apply to schedule I or II controlled substances (such as heroin or fentanyl), gender care for children and medications intended to induce an abortion. 

The most common regimen of those abortion medications includes the drugs mifepristone and misoprostol. Typically, a patient takes mifepristone first, then misoprostol one or two days later, according to medical providers cited in the plaintiff’s court documents. Both drugs are used off-label for abortion care in some circumstances.

Old case, new challenge

Wyoming’s lone abortion clinic — Casper’s Wellspring Health Access — and a group of abortion rights advocates are already suing to challenge two other laws from the 2025 legislative session. One added more stringent restrictions on abortion clinics, while a second required ultrasounds and a 48-hour waiting period. 

In April, Judge Campbell blocked enforcement of those laws while the legal challenge proceeds. On Monday, both sides appeared virtually in Natrona County District Court to debate whether HB 164 should also be halted while the broader case plays out.

Like past court hearings, abortion rights advocates used a 2012 amendment to the Wyoming Constitution, which protects people’s rights to make their own health care decisions, to help make their case. That amendment allows the Legislature to determine “reasonable and necessary restrictions” when they protect general health and welfare, and was cited by Teton County District Judge Melissa Owens when she struck down a pair of 2023 abortion bans in November.

Exempting abortion medications from off-label protections is not reasonable or necessary for public health, and is therefore unconstitutional, plaintiff’s attorney Bethany Saul argued. Most abortions are performed with medications, and the evidence shows those drugs are safe and rarely produce serious complications. 

And yet, health care providers who prescribe abortion drugs would be singled out by HB 164 and exempted from its protections without good reason, Saul told the court. If the law goes into effect as it’s now written, she added, providers may not prescribe the proper medications for their patients due to fears they might face future disciplinary actions from state licensing boards.

“This is not just a perceived risk,” she said. “We are facing a real risk.”

Senior Attorney General John Woykovsky defended the law, arguing the plaintiffs were misinterpreting HB 164. Brown, the bill’s chief sponsor, included the abortion medication exemption not as a backdoor attempt at banning the practice, but rather to align his legislation with the medication abortion ban passed by lawmakers in 2023. 

That ban, while on hold, could go into effect if the Wyoming Supreme Court rules it constitutional. The state’s highest court heard arguments on that case in April and is expected to rule later this year. If the justices affirm a lower-court decision that the ban is unconstitutional, then the abortion medication exemption in HB 164 has no effect, Woykovsky argued. He disputed the idea that the new law would discourage providers from prescribing off-label use of the medications.

“As it stands now, there are no laws in place to prohibit the use of off-label drugs for abortions,” he said. “And there should be no chilling effect.”

Judge Campbell listened to about an hour of arguments from both sides. He did not rule at the hearing, but said he would issue a decision as soon as possible given the law will go into effect in just over a week.