Civil and Human Rights

Oklahoma bill likely unconstitutional: Experts

By Richard Wolf 

It’s unconstitutional.

That’s the early consensus among most legal experts on Oklahoma’s effort to criminalize abortion.

Ever since the Supreme Court upheld a woman’s right to abortion in the 1973 case Roe v. Wade, state legislatures and abortion opponents have tested the legal limits. A federal ban on late-term abortions was found to be constitutional in 2007, as were certain restrictions 15 years earlier.

Even now, the justices are deciding whether a Texas law setting stringent restrictions on abortion clinics and doctors can stand, or whether it must be struck down. A decision is expected by late June.

But Oklahoma’s flat-out criminalization of abortion won’t pass the test because it flies in the face of the high court’s original ruling, most of those involved in the fight say.

“For more than four decades, the Supreme Court has said that the Constitution prohibits a state from banning abortion prior to viability,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center. If signed into law, she said, “I expect it would be challenged immediately in court, and the state would lose the case.”

Some 250 restrictions on abortion have been imposed across the country in the past five years, ranging from 24-hour waiting periods and parental notification laws, mostly upheld by lower courts, to bans on abortion after six or 12 weeks, which courts have blocked.

David Gans, civil rights director at the Constitutional Accountability Center, said the Oklahoma measure is “clearly unconstitutional.” Unlike efforts to restrict abortions, he said, “This is not an attempt to regulate. It’s an attempt to flout Supreme Court precedent.”

Some conservative legal scholars argue that the measure’s problems stem only from past court cases, not the Constitution itself.

“It depends on whether you accept judicial supremacy and the legitimacy of Roe v. Wade, or reject that,” said John Eastman, director of the Center for Constitutional Jurisprudence at Chapman University. “Roe is one of the most egregiously wrong decisions in our nation’s history. Regulating health and safety was, before that, always a state issue.

“So as an original matter, this bill is perfectly constitutional,” Eastman said.

The Oklahoma bill would punish doctors who perform abortions, not the women who have them, as presumptive Republican presidential nominee Donald Trump has suggested. Even so, Neal Devins, who directs the Institute of Bill of Rights Law at William & Mary Law School, called that “a distinction without a difference.”

By denying women access to doctors, Devins said, the measure would impose an “undue burden” on those seeking abortions. In 1992, the Supreme Court ruled in Planned Parenthood v. Casey that restrictions cannot impose such a burden.

“This goes further in the post-Casey period than anything I’m aware of,” Devins said. “It would be like saying ministers who perform same-sex or interracial marriages will go to jail.” 

___

This piece appeared in at least the following additional outlets:

  • Arizona Republic (print)
  • Dayton (OH) Daily News (print)

More from Civil and Human Rights

Civil and Human Rights
June 20, 2024

RELEASE: Supreme Court decision keeps the door open to accountability for police officers who make false charges

WASHINGTON, DC – Following this morning’s decision at the Supreme Court in Chiaverini v. City...
By: Brian R. Frazelle
Civil and Human Rights
June 11, 2024

The People Who Dismantled Affirmative Action Have a New Strategy to Crush Racial Justice

Slate
Last summer, in Students for Fair Admissions v. Harvard College, the Supreme Court’s conservative supermajority struck...
By: David H. Gans
Civil and Human Rights
April 12, 2024

TV (Gray TV): CAC’s Frazelle Joins Gray TV to Discuss Fourth Amendment Case at Supreme Court

Gray TV Washington News Bureau
Civil and Human Rights
April 22, 2024

RELEASE: Justices grapple with line-drawing but resist overturning important precedent in Eighth Amendment homelessness case

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in City of...
By: Brian R. Frazelle
Civil and Human Rights
April 19, 2024

Will the Supreme Court Uphold the 14th Amendment and Block an Oregon Law Criminalizing Homelessness?

Nearly 38 million Americans live in poverty. In some areas and among some populations, entrenched economic...
By: David H. Gans
Civil and Human Rights
April 18, 2024

DEI critics were hoping that the Supreme Court’s Muldrow decision would undermine corporate diversity programs. It does no such thing

Fortune
The Supreme Court just delivered a big win for workers and workplace equality–but conservatives are...