The state legislature recently passed a bill making it a felony to perform an abortion in Oklahoma. The legislation, which now goes to the governor, who is expected to sign it into law, is expected to affect women in other states as well as Oklahoma.
The measure provides for penalties of up to 10 years in prison and fines up to $100,000 for anyone convicted of performing an abortion in the state. The legislation creates a near-total ban on performing abortions in the state – with the only exception being abortion in a medical emergency to save the life of a pregnant woman.
The legislation did not include an emergency provision, so it will not take effect immediately. The fate of the Oklahoma bill – as well as anti-abortion laws recently passed by other states – depends on the outcome of court challenges, including a case currently pending in the United States Supreme Court.
Recent flurry of legislative activity throughout the country
Unlike the legislation that went into effect in Texas in 2021 and more recently in Idaho, the Oklahoma law does not give average citizens a right to file civil lawsuits against abortion providers. Oklahoma takes a more traditional approach by criminalizing conduct the state wishes to prohibit, with enforcement left to state prosecutors.
Several states – including Florida, Texas, Idaho, South Carolina, Indiana, and Wyoming – enacted legislation within the past year restricting women’s access to abortion services. When the Texas law became effective last fall, many pregnant women traveled to Oklahoma to have an abortion. Once the Oklahoma law goes into effect, the impact will extend beyond the state line to affect women in states with similarly restrictive abortion laws.
All eyes on the Supreme Court
Most recently enacted laws restricting women's access to abortions run into legal challenges based on the 1973 Supreme Court decision in Roe v. Wade. The decision upheld the right of a woman to have access to abortion and prohibited states from enacting laws that infringed upon that right up to the stage of pregnancy when a fetus has the ability to survive outside of the womb, which doctors today say is about 23 weeks into any such pregnancy.
In December 2021, the Supreme Court heard oral arguments in a case challenging a Mississippi law making it illegal to perform abortions after the fifteenth week of pregnancy. According to the challengers, the law violates the constitutional right granted to a woman under the holding in Roe v. Wade.
A federal district court ruling holding that the Mississippi law violated Roe v. Wade blocked enforcement of the law. A federal appeals court upheld the district court ruling. A decision from the Supreme Court on the state's appeal from the federal appellate court’s affirmation is expected before the end of the High Court’s current term in June.
Roe v. Wade has stood for almost 50 years – Will it survive?
Whenever challenges have arisen in the past, the survival of Roe v. Wade has always depended upon the United States Supreme Court’s composition. With its conservative majority (including some very outspoken opponents of abortion), the current Court may be ready to overturn Roe v. Wade. Overruling almost fifty years of precedent would remove the barrier to enforcement of many recently enacted laws, including the one passed in Oklahoma.
As many segments of our country anxiously await the High Court’s decision, questions arise regarding the pragmatic implications of a very personal choice women will continue to battle with as they decide how to best navigate their future and health in the face of laws restricting the same.
The idea that abortions will simply cease if and when Roe v. Wade is overturned is ridiculously ignorant; abortions occurred before Roe v. Wade, and they will continue through one method or another regardless of the ultimate resolution. After all, neither birth control nor contraception is 100% effective, and the notion that abstinence will become the norm is nothing more than a plaster saint’s pipe dream.
The implications for public health and women’s rights will continue to be a question without an answer at this point.