Okla. abortion ban raises questions
Details sketchy on who decides medical emergency exception
OKLAHOMA CITY – With Oklahoma only days away from enacting the toughest state ban on abortion in the U.S., providers were preparing to stop terminating pregnancies as questions remained Friday about enforcing the law’s limited exceptions.
The law allows abortions to save a woman’s life “in a medical emergency” and in cases of rape, sexual assault or incest that have been reported to law enforcement.
But it doesn’t spell out who decides what is considered a medical emergency, and the rape and incest exception won’t help victims who don’t report the crimes to police.
State officials didn’t immediately have answers for how the life-of-themother exception will be applied going forward.
Abortion providers said they are likely to be cautious because the new law, like a ban at about 6 weeks enacted earlier and similar to a 2021 law in Texas, will expose them to potentially expensive lawsuits over alleged violations. They’re planning to refer some patients to states such as Colorado or Kansas, but some won’t be able to manage the extra time or travel involved.
Oklahoma will provide a preview of what is in store for other states if the U.S. Supreme Court follows through on a draft opinion leaked earlier this month overturning the 1973 Roe v. Wade decision legalizing abortion. The law also is likely to prompt Oklahoma residents – and Texans who traveled to the neighboring state – to go elsewhere to end their pregnancies.
“An abortion ban in one state doesn’t stay just in that state,” said Neta Meltzer, a spokesperson for Planned Parenthood Rocky Mountains, which operates two dozen health centers in Colorado and New Mexico. “It absolutely has ripple effects in neighboring states and across the country.”
The Republican-dominated Oklahoma Legislature approved the abortion ban Thursday, and GOP Gov. Kevin Stitt, a strong anti-abortion advocate, is expected to sign it once it reaches his desk, probably early next week. The bill contains a clause that said it takes effect as soon as he signs it.
“This bill furthers our efforts to protect the life of the unborn and to stop those who participate in their deaths,” said state Rep. Sean Roberts, a Republican from a small northeast Oklahoma town. “The sanctity of life is our most precious gift.”
The two Planned Parenthood clinics in Oklahoma, in Tulsa and Oklahoma City, suspended abortion services after Stitt signed the six-week ban earlier this month. A clinic run by the abortionrights group Trust Women in Oklahoma City is providing abortion services until Stitt signs the new law.
Abortion rights advocates hope to challenge the new law in state courts, despite a provision saying that no court has the authority to issue an order blocking the law temporarily in response to such a challenge.
Even if a challenge were successful, Rabia Muqaddam, a senior Center for Reproductive Rights attorney said, “It may be some time and the results will just continue to be catastrophic for patients.”
The push for the law is part of a larger effort to restrict or ban abortion in Republican-led states, anticipating a U.S. Supreme Court decision to overturn Roe. About two dozen states are poised to ban abortion.
But because Oklahoma moved first toward a ban beginning at the “fusion” of sperm and egg, the White House labeled it the most extreme anti-abortion measure so far.
Press Secretary Karine Jean-Pierre said in a statement: “In addition, it adopts Texas’ absurd plan to allow private citizens to sue their neighbors for providing reproductive health care and helping women to exercise their constitutional rights.”
Supporters and critics of the new law agreed the threat of civil lawsuits, which could be filed up to six years after an abortion, and fines of up to $10,000 are powerful incentives for providers to avoid running afoul of it.
“I don’t know how much clearer we can be. We believe life begins at conception, and we’re going to protect life in Oklahoma,” Stitt said in a Fox News interview last week.
Another Oklahoma law, signed by Stitt in April and set to take effect in August, will make it a felony to perform an abortion, punishable by 10 years in prison and a $100,000 fine. It is being challenged in state district court.
“Ultimately, a lot of this is going to come down to a risk assessment by each abortion provider to decide what level of risk they’re able to take on,” said Jessica Arons, a senior American Civil Liberties Union attorney on abortion issues.
Part of the risk for abortion providers is parsing out how the new law’s limited exceptions apply. The office of Oklahoma Attorney General John O’Connor wouldn’t speculate and referred questions to the bill’s legislative sponsors.
The exception allowing abortions to save a pregnant person’s life doesn’t specify who has the final say on what constitutes a medical emergency, for example.
Mallory Schwarz, executive director of Pro-Choice Missouri, suggested such an exemption is “hollow,” saying such language requires the patient “to basically be on their deathbed.”
“If they’re not sick enough yet, then they might not qualify for that medical emergency,” Schwarz said. “If they’re not on their deathbed, is it an emergency?”
By requiring victims of rape, sexual assault and incest to report the crimes to law enforcement, the law likely means that most won’t be able to obtain abortions, providers and abortion rights advocates said. Victims have a variety of reasons for not reporting, including a fear of retaliation or because they believe police won’t act. The law doesn’t say whether a verbal report to an officer is sufficient.
And, said Jessie Hill, a law professor at Case Western University in Cleveland, “Is there any clear way to basically say we think women are going to lie about being assaulted?”
“I don’t think they’ve thought through any of this,” said Hill, an attorney in challenges to abortion laws in Ohio. “I’m not sure they even know how any of it works, honestly.”