October 27, 2008
Challenge to Oklahoma Abortion Law
The Center for Reproductive Rights is challenging an Oklahoma Law designed to place more stringent requirements on doctors performing abortion procedures.
Prior to the current law, Oklahoma required that all abortion patients be required to provide their "voluntary and informed" consent to the procedure. Additionally, women were required to be notified, twenty-four hours in advance of the procedure, that an ultrasound could be made available, as well as print and internet materials detailing the development of the fetus at a particular point.
Oklahoma Senate Bill No. 1878 changes the existing law regarding ultrasounds in several ways. First, it would require an ultrasound at least one hour prior to the abortion procedure. Second, it would require that ultrasound to be performed by the physician who is to perform the abortion or "a certified technician." Third, the doctor or technician must "display the ultrasound images so that the pregnant woman may view them" and explain to the patient in detail what is being shown on the ultrasound, including "the presence of cardiac activity" and "the presence of external members and organs."
What are the legal ramifications? There are several. First, the clinic challenging the provision states that it already performs an ultrasound on each pregnant woman for the purpose of determining the gestational age of the fetus. The difference here is that the ultrasound would be required to be made available for viewing. Only three other states have such a requirement at this time. However, the New York Times quotes Elizabeth Nash, public policy associate with the Guttmacher Institute, as stating that Oklahoma law is "unique" in its apparent intent that the pregnant woman actually view the ultrasound images.
Second, the statute imposes the ultrasound requirement with no exceptions for rape, incest, or the health of the mother. In fact, Governor Brad Henry (Dem.), vetoed the bill for this reason. However, his veto was overridden by the legislature.
Third, only doctors may perform the ultrasound under the new law. The clinics state that normally, the nursing staff will perform this function, leaving the doctors to attend to other matters. They state that it will be very difficult to comply with this law, unless the term "certified technician" is interpreted to include nurses.
This law is scheduled to take effect on Nov. 1. We'll keep you posted on the developments. In the meantime, a few teaching points:
1. Students should note that the case is brought solely under state law, and alleges violations of the Oklahoma state consitution, but not the federal constitution. In my experience, I have found that students frequently underestimate how relevant state constitutions are in "real life" practice settings. This case should serve as a useful reminder of that reality.
2. If the challenge were brought under the federal constitution, how would Casey apply? Arguably, proving a woman with more information is not such a bad thing. Moreover, the Court's support of waiting periods and other actions giving the state the opportunity to influence women would seem to indicate that they might not have a problem with ultrasounds being offered. However, what about requiring the woman to view the material? The statute does say that a woman can "avert her eyes" during the prodecure, but if a woman knows beforehand that she does not want a child, is this a case of mere information, or severe overreaching? Emily Bazelon of Slate has an interesting discussion of how a woman in such a position might feel.
3. My initial thoughts are that the fact there is no exception for rape, incest, or health, could be problematic. However, how would the recent decision in Gonzales v. Carhart affect this analysis? Arguably, Gonzales attempted to distinguish Steinberg rather than overrule it, and as such does not stand for the proposition that health exceptions are no longer required. But the question remains: Has Gonzales opened the door to laws such as Senate Bill 1878?
4. Finally, if the clinics are truly unable to provide a doctor-performed ultrasound for each patient, would that be an undue burden? The answer there, I think, is not as clear, as most of the cases focus on an undue burden to the patient, rather than whether regulations on doctors would make it more difficult to provide the services. It should be noted that in the state of Oklahoma, there are only three abortion providers. That's three for the entire state. Should practicality enter the analysis?
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