Pro-Choice Activists: Oklahoma Abortion-as-Felony Bill is Unconstitutional

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May 19, 2016; Washington Post

In the continuing fight against abortion, Oklahoma’s Senate and House have overwhelmingly passed legislation that would make it a felony for a doctor in the state to perform most abortions. As this first-of-its-kind bill lands on the desk of Governor Mary Fallin, pro-choice activists and interested nonprofits are threatening legal action if the bill becomes law, because it effectively bans abortion from the state.

The bill passed the Oklahoma Senate last month with a 59-to-9 vote in favor of the bill and passed in the House on Thursday by a vote of 32-to-12. In addition to barring doctors from performing abortions, the bill also mandates that except in extreme life and death cases, if a doctor does perform the procedure, his or her medical license will be revoked. Should a doctor be prosecuted under this law, he or she would face between one and three years in prison.

“The words ‘unprofessional conduct’ as used in Sections 481 through 514 of this title are hereby declared to include, but shall not be limited to, the following: […] 20. Performance of an abortion as defined by Section 1-730 of Title 63 of the Oklahoma Statutes, except that an abortion necessary to preserve the life of the mother shall not be grounds for denial or revocation of a medical license,” says the bill. “No such condition may be determined to exist if it is based on a claim or diagnosis that the woman may engage in conduct which she intends to result in her death.”

For the last month, pro-choice activists have voiced concerns about the constitutionality of the bill, which many contend threaten abortion rights in the state. While the Oklahoma State Medical Association would not take a position on abortion, it did call the measure “troubling” and that it would “oppose legislation that is designed to intimate physicians or override their medical judgment.” If this bill passes, the obvious question is who would be authorized to perform abortions, if not doctors? And if no one is able to perform abortions while ensuring the safety of the patient, would that constitute a constitutional violation of Roe v. Wade?

Amanda Allen, the senior state legislative counsel at the Center for Reproductive Rights implored Fallin in a letter to veto the legislation, which is “harmful, discriminatory, clearly unconstitutional, and insulting to Oklahoma women and their families.”

Senate Bill 1552 is a blatantly unconstitutional ban on abortion. The bill disregards a woman’s fundamental right to determine when and whether to have children, poses a serious risk to women’s health, prohibits physicians from practicing medicine within the bounds of medical ethics and standards, and invites costly litigation. As noted above, the Center for Reproductive Rights has challenged unconstitutional restrictions on abortion in the state of Oklahoma eight separate times in the past six years alone. This bill will almost certainly lead to expensive court challenges that the state of Oklahoma simply cannot defend in light of longstanding Supreme Court precedent. We urge you to veto this bill.

The bill is unprecedented in that it targets the medical community, but it’s among the “creative” approaches legislators have taken to limiting the accessibility of abortion, which was still legal the last time NPQ checked. For example, NPQ has been following as state after state has cut funding to Planned Parenthood.

In March, Donald Trump made a controversial statement asking for women to be punished for seeking or receiving abortions. Although even anti-abortion activists lampooned him for the statement, he’s not far off the record. Women are already being prosecuted for self-induced abortions, so it may have been only time until doctors were targeted next. Anna Yocca from Tennessee was charged with aggravated assault in March after she tried to end her 24-week pregnancy with a coat hanger. Purvi Patel, 33, from Indiana and Jennifer Whalen, 39, from Pennsylvania were both charged for using or providing pills to induce abortions. Should this bill be signed into law, we may expect to see a similar situation as unfolding in Texas where, in desperation and without the proper help, women are pushed to self-induce their abortions. Far from saving the lives of fetuses, if that is the intention of this bill, the legislation will be endangering the potentially tens of thousands of women in Oklahoma who seek to end their pregnancies.—Shafaq Hasan