The Oklahoma Supreme Court has surprised me.
Like many conservative state governments, Oklahoma passed laws making it more difficult for women in the state to obtain abortions. While pro-life advocates and analysts, in public statements, push for additional abortion regulations as a way of gumming up the abortion process, state officials have to pitch the regulations in a different way.
The 1992 U.S. Supreme Court case Casey v. Planned Parenthood allows states to regulate abortions if the intent of the regulations are a) to express respect for potential life, and/or b) assist women in making an informed choice regarding whether to terminate or continue a pregnancy.
At the same time, abortion regulations are not allowed to create an "undue burden" on women attempting to obtain an abortion, meaning that any law that, by design or effect, creates substantial obstacles to obtaining an abortion is unconstitutional. In applying the Casey decision, the Supreme Court and other courts have looked to the state's motive in creating various challenged regulations: does the regulation exist to actually enhance a woman's informed decision making over abortion, or is the regulation an attempt to make the process burdensome enough that some women will be unable or unwilling to go through the process?
The debate over abortion regulations reminds me of debates over voter ID laws in the 2012 election cycle. Voter ID laws and regulations regarding abortion-- 24-hours waiting periods, mandatory ultrasounds, etc.-- work similarly in that the more procedural obstacles one places in a person's way, the less likely they are to act. Comparing the enactment of voter ID laws with historical attempts to regulate voting (for example, in the south before 1965), it was pretty clear that political elites, at least, were motivated primarily by a desire to suppress the votes of a certain section of the political spectrum.
But on the surface, voter ID laws and the like had a parallel and legitimate justification-- to fight voter fraud, for example. In order to prevent public backlash-- and also avoid having the laws struck down as unconstitutional-- legislators had to maintain the public fiction that the laws were high-minded attempts to improve the electoral process.
One sees a similar dynamic with anti-abortion regulations, and pro-life states have had a pretty good run in recent years regulating abortions. In particular, laws requiring women to undergo ultrasounds before abortion, and TRAP laws (targeted regulations of abortion providers)-- i.e., regulating the abortion providers out of business-- have been pretty popular.
Ultrasound laws are pitched as a means of helping women make a more informed choice about abortion: women should be able to see what it is that they are going to abort. The drug regulations in Oklahoma, like other TRAP laws, are framed as attempts to ensure the best possible medical care of women having abortions.
Many pro-lifers genuinely believe that anti-abortion laws are about helping women-- although that may be from the perspective that women are helped the most if they do not go through with abortions, which are seen as physically, mentally, and spiritually dangerous. Setting that aside, the primary motive of these kinds of laws is to make things a little tougher on women and abortion providers. One hallmark of a "substantial obstacle" type of law is that it regulates the abortion process in a way that is not required with similar medical procedures in similar settings.
I have always wondered why more anti-abortion regulations have not been struck down as obviously unconstitutional under Casey. Well, I guess the Oklahoma Supreme Court and I agree.
In two decisions issued on December 4, the Court struck down two Oklahoma laws:
The main statement of each decision was that a) Casey governs review of these kinds of laws, and b) the Supremacy Clause of the Constitution requires state courts to act consistent with federal constitutional doctrine.
I imagine that the decisions will be appealed to the United States Supreme Court. I also imagine that the trend of states enacting waves of anti-aboriton regulations will continue for now. Regardless, these decisions stand as a blunt rebuke of the practice from an unlikely source.
Links:
Article in The Washington Post (December 4, 2012): Oklahoma court rules anti-abortion laws pertaining to ultrasound, drugs are unconstitutional
Article in LifeSiteNews.com (December 5, 2012): Oklahoma Supreme Court strikes down abortion restrictions as 'unconstitutional'
Oklahoma Supreme Court decision (December 4, 2012): Nova Health Systems v. Pruitt, 2012 OK 103, ___ P.3d ___
Oklahoma Supreme Court decision (December 4, 2012): Oklahoma Coalition for Reproductive Justice v. Cline, 2012 OK 102, ___ P.3d ___
Like many conservative state governments, Oklahoma passed laws making it more difficult for women in the state to obtain abortions. While pro-life advocates and analysts, in public statements, push for additional abortion regulations as a way of gumming up the abortion process, state officials have to pitch the regulations in a different way.
The 1992 U.S. Supreme Court case Casey v. Planned Parenthood allows states to regulate abortions if the intent of the regulations are a) to express respect for potential life, and/or b) assist women in making an informed choice regarding whether to terminate or continue a pregnancy.
At the same time, abortion regulations are not allowed to create an "undue burden" on women attempting to obtain an abortion, meaning that any law that, by design or effect, creates substantial obstacles to obtaining an abortion is unconstitutional. In applying the Casey decision, the Supreme Court and other courts have looked to the state's motive in creating various challenged regulations: does the regulation exist to actually enhance a woman's informed decision making over abortion, or is the regulation an attempt to make the process burdensome enough that some women will be unable or unwilling to go through the process?
The debate over abortion regulations reminds me of debates over voter ID laws in the 2012 election cycle. Voter ID laws and regulations regarding abortion-- 24-hours waiting periods, mandatory ultrasounds, etc.-- work similarly in that the more procedural obstacles one places in a person's way, the less likely they are to act. Comparing the enactment of voter ID laws with historical attempts to regulate voting (for example, in the south before 1965), it was pretty clear that political elites, at least, were motivated primarily by a desire to suppress the votes of a certain section of the political spectrum.
But on the surface, voter ID laws and the like had a parallel and legitimate justification-- to fight voter fraud, for example. In order to prevent public backlash-- and also avoid having the laws struck down as unconstitutional-- legislators had to maintain the public fiction that the laws were high-minded attempts to improve the electoral process.
One sees a similar dynamic with anti-abortion regulations, and pro-life states have had a pretty good run in recent years regulating abortions. In particular, laws requiring women to undergo ultrasounds before abortion, and TRAP laws (targeted regulations of abortion providers)-- i.e., regulating the abortion providers out of business-- have been pretty popular.
Ultrasound laws are pitched as a means of helping women make a more informed choice about abortion: women should be able to see what it is that they are going to abort. The drug regulations in Oklahoma, like other TRAP laws, are framed as attempts to ensure the best possible medical care of women having abortions.
Many pro-lifers genuinely believe that anti-abortion laws are about helping women-- although that may be from the perspective that women are helped the most if they do not go through with abortions, which are seen as physically, mentally, and spiritually dangerous. Setting that aside, the primary motive of these kinds of laws is to make things a little tougher on women and abortion providers. One hallmark of a "substantial obstacle" type of law is that it regulates the abortion process in a way that is not required with similar medical procedures in similar settings.
I have always wondered why more anti-abortion regulations have not been struck down as obviously unconstitutional under Casey. Well, I guess the Oklahoma Supreme Court and I agree.
In two decisions issued on December 4, the Court struck down two Oklahoma laws:
The vote counts were unanimous. In addition, each decision was issued per curium-- a short, unsigned opinion issued by the whole court (rather than authored by a single judge with other judges signing on) with little analysis. Sometimes courts will issue a per curiam opinion for strategic reasons, but the general purpose of a per curium opinion is to signal that the law and its application to the given facts are so clear that the court does not need to provide a detailed analysis.Oklahoma laws requiring women seeking abortions to have an ultrasound image placed in front of them while they hear a description of the fetus and that ban off-label use of certain abortion-inducing drugs are unconstitutional, the state Supreme Court ruled Tuesday.The state’s highest court determined that lower court judges were right to halt the laws. In separate decisions, the Oklahoma Supreme Court said the laws, which received wide bipartisan support in the Legislature, violated a 1992 U.S. Supreme Court case. (Source: Washington Post)
The main statement of each decision was that a) Casey governs review of these kinds of laws, and b) the Supremacy Clause of the Constitution requires state courts to act consistent with federal constitutional doctrine.
I imagine that the decisions will be appealed to the United States Supreme Court. I also imagine that the trend of states enacting waves of anti-aboriton regulations will continue for now. Regardless, these decisions stand as a blunt rebuke of the practice from an unlikely source.
Links:
Article in The Washington Post (December 4, 2012): Oklahoma court rules anti-abortion laws pertaining to ultrasound, drugs are unconstitutional
Article in LifeSiteNews.com (December 5, 2012): Oklahoma Supreme Court strikes down abortion restrictions as 'unconstitutional'
Oklahoma Supreme Court decision (December 4, 2012): Nova Health Systems v. Pruitt, 2012 OK 103, ___ P.3d ___
Oklahoma Supreme Court decision (December 4, 2012): Oklahoma Coalition for Reproductive Justice v. Cline, 2012 OK 102, ___ P.3d ___
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