Hours after GOP front-runner Donald Trump walked back his abortion punishment for women proposal in March, he issued a statement saying that “if Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.” The state of Oklahoma is poised to make Trump’s dream come true.
In April, the Oklahoma House of Representatives passed SB 1552, a bill that would strip doctors who perform abortions of their license to practice medicine.
UPDATE: On Thursday, the Oklahoma Senate approved the legislation 33-12, without "discussion or debate," as the AP noted.
Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights, which works to protect reproductive freedom, describes Oklahoma’s bill to Bustle as “a very oddly worded piece of legislation” with two key components: “One is the part that makes it unprofessional conduct for a physician to perform an abortion, essentially stripping the physician of his or her medical license for performing an abortion. That’s the part that’s very clearly targeted at physicians themselves. But there’s another part that basically is just a blanket abortion ban … potentially allowing for prosecution of a woman who self-induces an abortion.”
I called the office of Oklahoma Gov. Mary Fallin to ask if she plans to sign this bill. Fallin has a previous record of approving anti-choice legislation. She has signed bills banning abortion after 20 weeks with extremely narrow exceptions; prohibited health insurance plans offered under the federal exchange in Oklahoma from covering abortion; restricted the dosage of abortion-inducing drugs in defiance of medical advice; and made emergency contraception harder to access. Her spokesman, Jay Marks, says the governor hasn’t seen the final version of the bill yet, and he doesn’t know if she’ll sign it. Neither the bill’s sponsors nor Oklahomans for Life, Inc. returned my request for comment. If Fallin does not sign or veto the bill within five days, it will automatically become law.
Not one of the people I spoke with about this legislation believes it will withstand constitutional challenge.
Allen says that a “blanket abortion ban like this” is “facially unconstitutional.” She adds that, “Whether the strategy is to sneak around the Constitution and enact clinic shutdown laws like we saw Texas do in the past few years, or whether it’s just to go directly at the [right itself] and say, ‘We are making abortion illegal in this state,’ the strategies may be different but the ultimate goal is the same: The anti-abortion movement wants to make it difficult or impossible to access abortion in any given state."
Elizabeth Nash, senior state issues associate at the Guttmacher Institute, a reproductive health research and policy organization, tells Bustle this bill “is in conflict with Supreme Court decisions upholding abortion rights” and will presumably be struck down. Even Dr. Ervin Yen, a Republican Oklahoma state senator who describes himself as pro-life, agrees and tells Bustle that the bill won’t “stand up to court scrutiny.”
What, then, is the purpose of passing a bill that, even if the governor signs it, will very likely be suspended and ultimately struck down?
For the Oklahoma state legislators who sponsored it — all of whom are men, as are the majority who voted for it — it may be a useful tool for scaring doctors away from performing abortions and making it even more difficult for women in Oklahoma to obtain them.
Julie Burkhart is the founder and CEO of Trust Women, a reproductive justice organization that plans to open an abortion clinic called South Wind Women’s Center in Oklahoma in June. Burkhart tells Bustle in an email that she's concerned about the bill’s potential to deter doctors from practicing there:
The state of Oklahoma is already dealing with a shortage of physicians and would further suffer from the state passing another bill [of which] the medical community does not approve.
Nash says if the bill were to be signed into law, she worries that Oklahoma doctors would be even more reluctant to perform abortions: “I see a huge chilling effect.” As a result of that, she fears abortions would go underground, and there would likely be an increase in the number of women who “take matters into their own hands." Nash warns that when abortion is banned, “[it] does not disappear … it just becomes illegal and may be unsafe.”
Dr. Nancy Stanwood, board chair of Physicians for Reproductive Health, reiterates this point. She tells Bustle in an email that Oklahoma’s bill is “yet another example of politicians attempting to ban abortion by intimidating doctors … It would limit our ability to meet the needs of women and threaten doctors with penalties for providing safe, compassionate care.”
“There is a political palatability to saying ‘We are trying to go after the physicians who perform abortions [not the women who have them],'” says Allen “but abortion bans affect women who need abortion services, and whether or not a woman can be thrown in jail for accessing an abortion is kind of beside the point.”
Does this bill represent a new strategy for abortion foes, a shift away from the burdensome, medically unnecessary regulations imposed on clinics in recent years, known as Targeted Regulation of Abortion Providers ("TRAP") laws? Texas' HB 2, which requires clinics to meet the strict building requirements of ambulatory surgical centers, is a prime example of a TRAP law. Over half of Texas' abortion clinics have closed since it was passed. It is currently being challenged before the Supreme Court.
Teddy Wilson, a staff reporter at Rewire, an online publication that focuses on issues of reproductive health and justice, tells Bustle the Oklahoma bill marks the first time he’s seen “this particular type of legislative language” used. He adds:
I have seen bills and pieces of legislation that have tried to regulate abortion providers … I’ve never seen anything this blatant.
As a de facto ban on abortion, “it kind of fits in with [anti-choice activists’] strategy over the last five to 10 years," Wilson explains, "where they don’t outright ban abortion … but where they make either abortion procedures or care impossible to access.”
Nash hasn’t seen this particular type of bill before, either. “This is new language,” she says, but it still represents “abortion opponents looking for a way to ban abortion without directly banning abortion.”
Kaylie Hanson, the national communications director of NARAL Pro-Choice America, tells Bustle in an email that this bill is “just the latest anti-choice tactic to end safe and legal abortion in this country. Anti-choice politicians and their funders advocate for punishing a woman when she chooses to terminate a pregnancy, punishing doctors who provide abortion care, or punishing individuals and entities that work with abortion providers.”
And what do Oklahomans think of this bill? Rev. Shannon Speidel, an associate minister at Central Christian Church in Enid, Oklahoma, and member of the board of the Oklahoma Coalition for Reproductive Justice, is not pleased that her state government is focused on legislation like this. She tells Bustle in an email that Oklahoman women “deserve a governing body that makes sure they have access to healthcare services, paid family leave, childcare subsidies and equal pay, all of which were before our legislature this session and failed.”
Even some anti-abortion Oklahomans oppose this bill.
As mentioned before, Dr. Ervin Yen, a pro-life Republican who is also a cardiac anesthesiologist and the only physician in the Oklahoma State Senate, argued against the bill when it was introduced in an earlier form (but says he accidentally voted for it by hastily hitting the wrong button). “I’m definitely against that bill,” he tells Bustle. As Vice Chair of the Health and Human Services Committee, he’s recently read eight anti-abortion bills and thinks SB 1552 “interferes with the doctor-patient relationship.” Yen says Oklahoma state legislators “shouldn’t be wasting our time on anti-abortion bills or laws that will be invalidated by someone in the future.”
He compared his feelings on anti-abortion laws to anti-gun control laws:
It’s just like guns … I’m personally not worried about our gun rights in Oklahoma, but every year there are at least a couple of gun bills. We have one this year that says that anybody who’s 21 years old can openly carry a gun if they do not have mental health issues and if they’ve never been convicted of a felony. I think that’s silly. Every year those kinds of bills, guns and pro-life bills, come through the legislature, every single year.”
Rev. Speidel believes Oklahoma women are tired of the state government focusing on abortion restrictions instead of creating legislation to tackle real problems. “[Women] are tired of talking about abortion,” Speidel says. “They need the government’s focus to be on things that could make a positive difference in their lives.”