Over two weeks have passed since the leaked Supreme Court (SCOTUS) opinion regarding abortion. While the opinion clearly repudiates the constitutionality of Roe v. Wade, what SCOTUS left unsaid is going to cause problems where leadership is lacking. How have Oklahoma officials responded? What is abortion law going to be in Oklahoma?
SCOTUS Stopped Short
What SCOTUS did say was good. They overturned Roe and Casey. However, what they did not say is problematic for officials with no intestinal fortitude. SCOTUS did not point out that all elective abortion that is not medical triage is unconstitutional per the Fourteenth Amendment, which requires innocent lives to be given equal protection of the laws within a State. They could have and should have explained that the Mississippi Gestational Age Act was unconstitutional because it does not provide equal protection of the law to preborn humans who have not attained the age of fifteen weeks. They could have and should have directed all States to criminalize not just some abortions, but all abortions.
Consider rape, for example. The penalties a rapist might face vary from State to State, but within each State, rape is a crime for anyone who commits the act, regardless of the age of the victim. The State law gives equal protection against rape. In contrast, abortion laws which protect only humans of a certain age, or which grant blanket immunity to mothers and accomplices, are discriminatory and do not provide equal protection. In order for an abortion law to provide equal protection, and thus be constitutional, it must criminalize all elective abortion, regardless of the victim’s age, and it must apply to anyone involved in that criminal act.
With SCOTUS not making it clear that elective abortion is unconstitutional, even so-called pro-life States like Oklahoma will be apt to compromise with their new statutes. They will claim victory for the lives they did save, but ignore the lives they could have saved but did not for political reasons.
How have Oklahoma Officials Responded?
State officials began 2022 with a strategy of passing all competing pro-life regulations short of total abolition. Their plan appears to have been to send it all to the courts as a bowl of mixed salad and let the courts decide what to pick out and throw away and what the Legislature could keep.
Now that we know SCOTUS is not going to interfere at all, and is going to direct lower courts not to interfere, even those officials who believe they ought to obey unconstitutional SCOTUS opinions ought to be willing to change strategy, but they have not. Since the leak on 2 May, Oklahoma Governor Kevin Stitt has said nothing specific about what Oklahoma’s abortion policy ought to be. He even signed an unconstitutional heartbeat law on 6 May. State legislators have intimated they have no plans to further address abortion prior to adjourning at the end of May.
It seems officials do not want to take any immediate action prior to facing reelection on 28 June. Their view appears to be leave well enough alone; wait and see; we’ve done enough. House Speaker Charles McCall said, “Oklahoma’s trigger law and other proactive pro-life policies we have enacted will immediately end abortion here and set the stage for Oklahoma to become the most pro-life state in the nation.” His statement that abortion will be ended in Oklahoma is factually false, and borrowing the Governor’s slogan about becoming “the most pro-life state” reveals that leadership’s priority is not to abolish all abortion, but just to do statistically better than Texas. Officials are not exercising leadership or acting on principle, but rather playing politics with dead babies.
What is Abortion Law Going to be in Oklahoma?
Contradictory laws, all of which still allow many abortions, are going into effect. Senate Bill 918, a “trigger bill” from 2021, becomes effective upon SCOTUS officially overturning Roe. It criminalizes only those who administer abortions, exempts mothers and accomplices, and the punishment is imprisonment for two to five years.
The effective date of Senate Bill 612 is contingent upon when the Legislature adjourns, but it is likely to be near the end of August 2022. It criminalizes only those who perform abortions, it exempts mothers and accomplices, and the punishment is not to exceed $100,000 and/or imprisonment not to exceed ten years.
Senate Bill 1503, the Oklahoma Heartbeat Act, became effective on 6 May 2022 when Gov. Stitt signed it into law. Citizens have to prove that an abortionist did find a heartbeat in his victim but ignored it. The penalty is a minimum fine of $10,000, plus damages, court costs, and attorney’s fees.
The contradictions among these statutes must be officially reconciled, or the State will be left with a grand legal muddle. Furthermore, all of these laws are inadequate and unconstitutional as explained above. They should be repealed or superseded with something like SB 1372 or HB 4111 the “Equal Protection and Equal Justice Act.” The Legislature is currently shirking this duty, and the Governor is providing no leadership or direction.
What Must be Done?
When the States failed to immediately nullify Roe in 1973, the policy quickly became entrenched and has led to the worst holocaust in human history, which continues to this day. We stand at a similar tipping point. Now is the time to totally abolish abortion. If we allow our officials to get away with a half-finished job, then, by next year, voters will have been fed so much pro-life victory propaganda that they will believe the battle is over and that their officials did a great job.
As of 2020 the Guttmacher Institute reports that over half of all abortions were already being administered chemically. That means the industry is prepared and ready to launch a full-scale, all-out program of do-it-yourself, mail-order abortions. Most current pro-life laws, including those in Oklahoma, provide gaping loopholes for these thousands of abortions. Legislators must act now, or they may lose the political momentum and motivation to fully establish justice and equal protection. History repeats and rhymes, so whatever murders they allow to continue now may continue for another half century. This is why the primary elections on 28 June are so important. Incumbents who played the wait-and-see game must know that we do see and will not wait to replace them. A list of candidates who received a perfect score on the Oklahomans United for Life survey will be forthcoming.
