Those used to decades of devious collateral assaults on abortion rights by right-to-live activists, usually operating through Republican-controlled state governments, got a shock today when the Oklahoma legislature cleared a bill (headed for the desk of staunch anti-abortionist governor Mary Fallon) making the performance of abortions by health-care professionals a felony. As the Cut’s Susan Rinkunas reports:>
A doctor who performs an abortion at any point in a pregnancy for any reason beyond saving the mother’s life or removing a miscarriage would be subject to a felony charge punishable by up to three years in prison. There are no exceptions in the case of rape or incest. Doctors who perform abortions outside of these circumstances would not be able to get or renew a medical license in the state.
This is, to put it mildly, a direct assault on more than four decades of federal constitutional precedents. As such, it is also a departure from the deeply dishonest tactics normally deployed to erode reproductive rights, such as restrictions on abortions based on the timing or circumstances of an abortion, or, most recently, attacks on abortion providers via blatantly bogus “health” requirements.
Now, assuming the Oklahoma bill isn’t some rogue operation (if it is, Fallon will probably be given quiet permission to veto it), it can only be understood as an effort to set up a comprehensive Supreme Court review of reproductive rights, the first since 1992’s Casey v. Planned Parenthood, which upheld the basic establishment of a right to choose set out in Roe v. Wade. A year ago, that might have been a bold if risky gambit, with the Court split between four sure votes to reverse or seriously modify Roe, four to affirm it, and a swing vote held by Anthony Kennedy, who in 2007 wrote an opinion validating restrictions on late-term abortions based on the same patriarchal “health” grounds Republican legislators are using to shut down clinics. Many pro-choice activists were quietly worried that Kennedy would be inclined to join sure anti-Roe votes from Roberts, Alito, Thomas, and Scalia if given the right case.
But now with Scalia’s death there are no more than four votes on the Court for any sort of retrograde action on abortion. And so: Oklahoma legislature is either wasting its time or is banking on the election of Donald Trump. They certainly aren’t going to get that hypothetical fifth vote to overturn Roe from a President Hillary Clinton. And Trump’s own list of potential SCOTUS appointees is getting the kosher label from the rabbis of the militant conservative legal Establishment.
Whatever else they accomplish, then, the Oklahoma solons have helped clarify the stakes in this presidential election. Some hard-core conservatives who hate Trump but hate abortion rights more may be brought around to a vote for the mogul on grounds that he’s the only near-term hope for ending the American Holocaust (as many of them think of it) of legalized abortion. And perhaps some angry Bernie Sanders supporters who feel there’s not a dime’s worth of difference between Clinton and Trump may eventually decide reproductive rights are actually worth more than a dime.