Republican-led States Testing Abortion Limits

Oklahoma's near-total ban is part of a larger trend.

WSJ (“Oklahoma Legislature Passes Near-Total Ban on Abortion“):

Oklahoma’s Legislature on Tuesday passed a near-total ban on abortion, one of the most sweeping bans passed this year as Republican-led states test the constitutional limits of abortion rights.

The Oklahoma bill bans abortion from the beginning of pregnancy except if the life of the mother is in danger. There is no exception for rape or incest.

Under the law, an abortion provider could face up to 10 years in prison. Mothers wouldn’t face criminal penalties.

The bill passed the Oklahoma House of Representatives on Tuesday and already passed the state’s Senate last session. It now heads to the desk of Republican Gov. Kevin Stitt. If the governor signs the bill, it is expected to take effect sometime this year unless it is blocked by the courts.

The governor’s office didn’t respond to a request for comment. The governor has said he would sign any antiabortion bill that comes across his desk.

Republican-led states have passed several bills this year tightening restrictions on abortion, anticipating that the Supreme Court in the coming months could issue a decision weakening or eliminating constitutional protections established under Roe v. Wade in deciding a case from Mississippi.

Florida, Arizona and Kentucky each passed 15-week bans on abortion, mirroring the Mississippi law.

Lawmakers have also passed legislation strengthening abortion rights in anticipation of the Supreme Court decision. Colorado and New Jersey recently passed legislation establishing a right to an abortion and other types of reproductive healthcare under state statute. Voters in Vermont will cast ballots in November on a constitutional amendment establishing a right to an abortion.

While Oklahoma’s is the most draconian, essentially banning all elective abortions from conception, all of these laws fly in the face of the “undue burden” standard that has been “settled law” for three decades, since Planned Parenthood of Southeastern Pennsylvania v. Casey substituted fetal viability* for the trimester framework established under Roe v Wade. The courts have long settled on 24 weeks* as the viability threshold.

Given that overturning Roe has been arguably the core issue motivating social conservatives since at least the 1980 election, it’s not surprising that states are taking advantage of a Supreme Court that has replaced the moderate Anthony Kennedy with Brett Kavanaugh and liberal icon Ruth Bader Ginsburg with Amy Comey Barrett. They’ve been flouting the Court’s rulings for decades now, probing the limits and forcing the issue to be litigated time and again.

Chief Justice Roberts will surely try to reach a middle ground that allows further latitude to the states while preserving at least the pretense of adhering to stare decisis. (Roe is, after all, going to be 50 come January.) I’m skeptical he’ll succeed.

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*Roe’s trimester formula was a viability standard by a different name, with 28 weeks being the rough time a fetus could “have a meaningful life outside the womb.” Nineteen years later, advances in medical science had moved the window by nearly two weeks and it’s moved at least another two since then.

FILED UNDER: Law and the Courts, Supreme Court, , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Not the IT Dept. says:

    I suspect that regardless of what the courts do, legislators will just keep passing these laws over and over again. The result will be to clog up the courts and force organizations like Planned Parenthood to expend increasing amounts of money on legal fees. Fanatic pro-lifers will face little opposition for this strategy and few of them will lose their districts or states over it.

    We’re not in Kansas anymore, Toto. It’s going to get even worse in the future.

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  2. Barry says:

    James ,at this point there are five justices who don’t care. In the end, I don’t think that Roberts cares, either. He’s just probably works off of an old feeling that the GQP SCOTUS needs to worry about its reputation.

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  3. CSK says:

    Well, I hope the states that force a woman to give birth to a vegetable are willing and prepared to assume, fully, the cost for and care of the vegetable.

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  4. Sleeping Dog says:

    @CSK:

    Wishful thinking. They’ll tell them to move to a state that cares.

    The stage should be set. Progressives, feminists and other pro choice advocates have promised a tsunami of voters will rise up an beat back the forces that are denying women the right to control their own bodies. November will be the test and alas, the medieval forces will prevail.

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  5. OzarkHillbilly says:

    Pro-Life my ass.

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  6. gVOR08 says:

    The issue is too valuable for the GOPs and the preachers to give it up just because they’ll have won. They’ll quickly swing into demanding a nationwide ban.

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  7. Sleeping Dog says:

    @gVOR08:

    Also increasing their fire on birth control, that is already happening on the margins.

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  8. CSK says:

    Serious question: Is surgical removal of a dead fetus prohibited in Oklahoma?

  9. drj says:

    Meanwhile, Tenessee Republicans are trying to introduce a special category of hetersexual marriage – but without age of consent restrictions.

    Preggo teen girls is what they’re after, it seems.

    I’m getting pretty strong The Handmaid’s Tale vibes here.

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  10. Kathy says:

    I’ll say this again: it’s insane that Mexico’s not moving to legalize abortion, especially on the states that border Arizona and Texas.

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  11. Gustopher says:

    @gVOR08: If you believe that abortion is murder, you can’t just leave it to the states to decide whether to allow it.

    Of course they will push for a national ban. To not do so would be abhorrent (given the belief that abortion is murder, which they have been spoon fed)

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  12. drj says:

    @Gustopher:

    If you believe that abortion is murder

    Except that they don’t really believe that.

    It would be a bit weird (to say the least) to let 900,000 babies be murdered each year just because the law says it’s OK.

    Especially with a Republican president, a Republican Senate, a Republican House, and a Republican SCOTUS – like we had between 2016-2018.

    I’m with you in so far that they won’t leave it to the states, but nobody really believes that abortion is murder. They say it, but they don’t actually believe it.

    Any pro-lifer who claims such a thing is a liar.

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  13. gVOR08 says:

    @Gustopher: Yup. And don’t waste your breath pointing out they used to say it was a matter for the states.

    As far as I’m concerned, abortion was the prototype, teaching conservatives how to seize on any mole hill of a social issue and make a mountain of a political issue out of it. When Roe v Wade was announced it was a headline deal, but there were no protests. Catholics weren’t happy, but most dating age people breathed a sigh of relief and most people didn’t much care. There’s a reason someone observed “Jerry Falwell couldn’t spell abortion five years ago.” It took years to turn abortion into a weapon. But, with hard work, a few rewrites of theology, generous donations, and a lot of lying, they succeeded.

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  14. Chip Daniels says:

    It’s been established that prior to 1973, abortion was not a big issue for evangelicals and in fact many supported its legalization.

    It was the political marriage of convenience between the white evangelicals and Catholics, motivated by opposition to feminism that turned it into a litmus test.

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  15. Gustopher says:

    @drj: Remember when they were killing abortion doctors?

    I’m not saying the elected officials believe it — although they have been electing crazier and crazier people, so maybe, and definitely at least some at the state level — but a large chunk of the base believes it, and the elected officials will go along with a campaign of who can appeal to the craziest person the most.

    I predict that within 24 hours of a ruling overturning Roe v Wade, we will have at least three House members saying that this is a great victory, but we cannot let up now, and that they are introducing legislation for a nationwide ban.

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  16. drj says:

    @Gustopher:

    Remember when they were killing abortion doctors?

    Oh yes. And I also remember how fast all these anti-choice crusaders distanced themselves from the people who actually pulled the triggers.

    but a large chunk of the base believes it

    Nope.

    If you actually believed that 900,000 babies are murdered every year, would you be content with protesting and posting Facebook memes about it?

    It would be armed insurrection time. And justifiably so.

    But despite all the overlap between pro-life and 2A folks, nothing like that happens. This tells you all you need to know.

    They’re liars.

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  17. Scott O says:

    @Kathy: What are the current laws in Mexico on abortion?