The Oklahoma State Legislature has mounted repeated attacks on its citizens’ reproductive rights in recent years. After attempts in 2008 and 2009 to place onerous restrictions on abortion were rejected by the courts because the bills addressed more than one subject, in violation of the Oklahoma Constitution, the Republican-controlled legislature has embarked upon a campaign to pass most of the provisions in those flawed bills individually in recent months, even overriding Governor Brad Henry’s (D) veto on three occasions. Given that the state currently has only three abortion providers, any attempts to limit access to reproductive care will severely impact an Oklahoma woman’s right to choose.
The current onslaught against reproductive rights began with three measures that Governor Henry signed into law on April 2, 2010; one prohibits doctors from performing abortions on the base of the gender of the fetus; another protects from employment discrimination health care providers who refuse to provide a medical procedure because it conflicts with their religious beliefs or moral convictions, and the third regulates the distribution of mifepristone, also known as RU-486, which is one of the pharmaceuticals used in medical abortions. Although these measures may not seem unduly restrictive at first blush, some components are cause for concern. In S.B. 1890, for example, which bans gender-based abortions, a woman who received an abortion, “any person who is the spouse, parent, sibling, or guardian of, or current or former licensed health care provider of, the female upon whom an abortion has been performed,” the district attorney, or the attorney general may sue the abortion provider, who is subject to state penalties as high as $100,000 as well as damages resulting from a civil action.[i] The law leaves abortion providers extremely vulnerable to legal action given the large number of people who are empowered to sue and the lack of any burden of proof the litigants must satisfy. Much of the law governing the distribution of mifepristone is completely superfluous, as the doctors prescribing the drug are subject to licensing and regulatory strictures. In addition, the provision that all abortion providers must report if any of their patients are hospitalized or experience “any serious event” in the year following a medical abortion, whether that is connected to the abortion or not, is unnecessarily burdensome.[ii]
While those measures undoubtedly will impact women who are considering terminating their pregnancies, the bills that followed them, which have been passed by the legislature, are particularly chilling—so much so that Governor Henry vetoed every one. The legislature overrode Governor Henry’s April 23, 2010, veto on two pieces of legislation—H.B. 2780, which mandates that a woman undergo an ultrasound no less than one hour before she has an abortion, during which the monitor displaying the image of the embryo or fetus must be facing her and the doctor must describe in detail the development of the organs and limbs, including whether or not the heart is beating; and H.B. 2656, which protects from litigation physicians who omit or give false information about the health of a fetus to a pregnant woman if the physician has the faintest notion that the information may result in the woman terminating her pregnancy. In the statement that accompanied both vetoes, Governor Henry denounced the bills as “unconscionable,” objecting to the fact that the ultrasound bill does not include an exemption for survivors of rape or incest who were impregnated when they were attacked and that the litigation shield would “grant a physician legal protection to mislead or misinform a pregnant woman in an effort to impose his or her personal beliefs on his patient.”[iii]
In May, Governor Henry vetoed two other anti-choice bills. The legislature overrode the governor’s veto on the Statistical Abortion Reporting Act, H.B. 3284, which mandates that a woman seeking an abortion complete an extensive form that will be made public, including her age, race, marital status, education level, and reason for choosing to terminate her pregnancy. Doctors who refuse to comply with the law face penalties ranging from loss of medical license to criminal charges. The legislative session ended before lawmakers had the opportunity to mount a campaign to override the governor’s veto on H.B. 3290, which would prohibit “state insurance exchanges created under the recently signed federal health care legislation from covering abortion procedures,” despite the fact that the federal legislation included a similar ban.[iv] The bill, which would ban insurance coverage even for abortions that are medically necessary or result from rape or incest if the attack is not reported to law enforcement within 48 hours, likely will be introduced next year.
On behalf of two of Oklahoma’s three abortion providers, the Center for Reproductive Rights filed a lawsuit contesting H.B. 2780 and the attorney general subsequently agreed to stay implementation of the law after it had been in effect for one day. H.B. 2656 and H.B. 3284 remain unchallenged; however, the constitutionality of both measures has been questioned. Critics of H.B. 2656 also have called attention to the ethical issues inherent in protecting a physician who would fail to disclose that a fetus tested positive for such devastating ailments as Down syndrome, cystic fibrosis, spina bifida, and anencephaly. The effects of these conditions range from the child suffering a lifetime disability to never gaining consciousness outside the womb; thus, the mother is left without the choice not only to decide if she wishes to carry a pregnancy to term, but also to consider how she will prepare to care for a child with special needs if the physician chooses to give her false information.
Governor Henry and other lawmakers questioned the wisdom of passing legislation that undoubtedly will be contested in court and likely deemed unconstitutional, thus causing the state to incur unnecessary legal expenses despite a budget shortfall. The Center for Reproductive Rights successfully challenged two anti-choice bills passed in 2008 and 2009. Those measures, the first of which Governor Henry signed into law, incorporated many of the aforementioned provisions, including the reporting and ultrasound requirements, as well as the ban on gender-selective abortions, and were ruled to violate a provision in the state constitution requiring legislation to address a single subject. The Oklahoma Supreme Court went so far as to rebuke the legislature, as the Court was “growing weary of admonishing the Legislature for so flagrantly violating the terms of the Oklahoma Constitution,” wasting the Court’s time and the taxpayers’ money when “THE CLEAR LANGUAGE OF THE OKLAHOMA CONSTITUTION REQUIRES THAT ALL LEGISLATIVE ACTS SHALL EMBRACE BUT ONE SUBJECT” (emphasis in original).[v]
[i] Oklahoma S.B. 1890, 2010 Regular Session, accessed 17 May 2010, <https://www.sos.ok.gov/documents/legislation/52nd/2010/2R/SB/1890.pdf>
[ii] Oklahoma S.B. 1902, 2010 Regular Session, accessed 17 May 2010, <https://www.sos.ok.gov/documents/legislation/52nd/2010/2R/SB/1902.pdf>.
[iii] Gov. Henry vetoes ultrasound bill, cites constitutional challenges,” Office of Governor Brad Henry, 23 April 2010, accessed 17 May 2010, <http://www.gov.ok.gov/display_article.php?article_id=1381&article_type=1>.
[iv] Michael McNutt, “Oklahoma GOP lawmaker speaks against abortion, insurance bill,” Daily Oklahoman, 13 May 2010, accessed 17 May 2010, <http://www.newsok.com/article/3460893?searched=abortion&custom_click=search>.
[v] Disposition by Order, Nova Health Systems v. W.A. Drew Edmondson, 2010 OK 21, 1 March 2010, accessed 17 May 2010, <http://reproductiverights.org/sites/crr.civicactions.net/files/documents/Order%20of%20Okla%20Sup%20Ct%203-02-10.pdf>, 4–5.