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.”

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