Oklahoma lawmakers pass bill essentially banning abortions

By Molly Hennessy-Fiske

Oklahoma lawmakers have passed a measure that essentially bans abortion, the latest and most extreme state restriction but one that – if it becomes law — is unlikely to withstand court challenges.

The law passed Thursday by the state’s Republican-dominated Senate and sent to Republican Gov. Mary Fallin would make performing abortions a felony punishable by up to three years in prison, and bar doctors who perform abortions from obtaining or renewing their medical licenses in Oklahoma.

Fallin has five business days to veto the measure before it automatically becomes law, set to take effect in November. A spokesman said Fallin was not commenting until staff could review the bill.

There were 4,487 abortions statewide in 2014, the most recent figures available from Oklahoma’s health department. The state’s two abortion clinics — one in Norman, the other in Tulsa — were scrambling Thursday as patients contacted them for guidance.

“They are being inundated with calls from women asking whether they can get the abortion care they need,” said Kelly Baden, director of state advocacy for the New York-based Center for Reproductive Rights, whose attorneys are representing the clinics. “For Oklahoma legislators to put women in this position — it’s unfathomable and cruel.”

The measure was sponsored by Republican state Sen. Nathan Dahm, a software engineer and son of missionaries who has said he hopes it will help overturn Roe vs. Wade, the landmark Supreme Court case that legalized abortion nationwide.

It’s only the latest in a wave of state-level abortion restrictions in the U.S. this year. Earlier this week, South Carolina banned women from obtaining abortions at 20 weeks or later, even if they are victims of rape or incest.

Sixteen other states have passed similar legislation. A case concerning whether Texas abortion restrictions impose an undue burden on women is pending before the Supreme Court, with a ruling expected next month.

Oklahoma was dubbed the most “pro-life” state in the nation earlier this year by advocates Americans United for Life. And Fallin, a tea party Republican being eyed by presidential candidate Donald Trump as a potential running mate, has boasted of never vetoing antiabortion legislation.

But even if the measure becomes law, it’s unlikely to withstand legal challenges, said David Gans, civil rights director at the Constitutional Accountability Center in Washington, D.C.

Gans said the measure clearly violates the Constitution’s supremacy clause, which ensures the precedence of federal law over state law, as well as the due process clause of the 14th Amendment.

“This bill is really flouting these fundamental principles that the Supreme Court has explained and that are the law of the land,” Gans said.

He noted that the Supreme Court had repeatedly reaffirmed Roe vs. Wade, and that when Louisiana, Utah and Guam passed abortion bans in the 1990s, the high court threw the bans out.

“Oklahoma is not the first to do this. Time and time again, what the Supreme Court has said is you cannot ban abortions,” Gans said.

Baden’s group wrote to Fallin urging her to veto the measure. If it takes effect, the group is expected to challenge the law in court.

“We have not shied away from challenging Oklahoma in the past when it has tried to pass various kinds of abortion restrictions,” Baden said.

“States like Oklahoma have taken step after step to try to make abortion inaccessible through a variety of sham laws that try to force clinics to close.”

Republican state Sen. Ervin Yen, an antiabortion Catholic anesthesiologist from Oklahoma City, voted against the measure, calling it “insane” and predicting it would likely scare doctors away from Oklahoma.

“You’re going to be fearful you’re going to have your license taken away and you’ll be thrown in jail,” he said. “I do not think we should be passing laws that would be declared unconstitutional in the future.”

But Republican state Rep. David Brumbaugh said lawmakers should not shy away from a potential legal battle.

“It’s not about policy. It’s not about politics. It’s about principle,” Brumbaugh said. “Do we make laws because they’re moral and right, or do we make them based on what an unelected judicial occupant might question or want to overturn? The last time I looked, that’s why I thought we had a separation of power.”

A new abortion clinic is scheduled to open in Oklahoma City next month, said Julie Burkhart, founder and chief executive of Wichita, Kan.-based Trust Women Foundation, which raised about $800,000 to start the clinic in addition to one it runs there.

Burkhart said Oklahoma City was the largest metro area in the country without an abortion clinic.

“It’s absolutely critical,” she said, noting that with added abortion restrictions in Texas and other neighboring states, clinics have closed and women have fewer places to turn. “Abortion rights in this country looks to me like a lot of what we had pre-Roe. It’s all very patchwork.”

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