One Last Firewall for Choice in Oklahoma?

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Saturday, January 22nd, 2011 is the 38th anniversary of the Supreme Court's decision in Roe v. Wade. In the past few years, a woman's right to choose whether and when to bear a child has become increasingly threatened by federal and state laws, clinic harassment, and provider violence. Because the "right to choose" depends on many factors, RH Reality Check is publishing a series of articles on abortion providers, state laws, and other threats to women's fundamental rights under Roe.

Andrea Grimes is a contributing writer to RH Reality Check.

Hard work. Persistence. Resolve. These are powerfully American traits, right? Americans love these words. American politicians, especially. They're key terms dropped left and right in political speeches on both, well, the left and the right. But in Oklahoma, persistence has turned into a dogged political slog, with anti-choice politicians trying, year after year, to make it harder for women to access abortion despite the fact that, year after year, their efforts have been struck down in court.

"We have a great fear that Oklahoma will be one of the states this year that has basically greased the skids for anti-choice legislation," said Donna Crane, policy director for NARAL Pro-Choice America, in a phone interview. This election cycle, Crane says Oklahoma lost a powerful "firewall" that stood between reproductive freedom and a relentless group of anti-choice law makers: Governor Brad Henry. While he was in office, Crane said, Henry would "stand between politicians and legislators who wanted to impose restrictions on women's rights."

But Gov. Henry, who repeatedly vetoed legislation requiring pre-abortion ultrasounds and that protected doctors who withheld information about fetuses from lawsuits, was term-limited out of office. Sitting at the governor's desk now is Republican Mary Fallin, who has voted against stem cell research and for personhood legislation that would give fetuses protection under the 14th amendment. Fallin will be no firewall between Oklahoma women and, once again this year, legislation that requires doctors to show and describe ultrasounds to abortion-seeking women in the hour before their procedures.

"There's basically no check or balance in the whole state for reproductive freedom," said Crane.

Today, Oklahoma's firewall is not a government entity but the non-profit Center for Reproductive Rights, which has brought suit against the state on behalf of abortion providers and their patients in Oklahoma. Staff Attorney Stephanie Toti of CRR says the ultrasound legislation violates physicians' right to free speech, right to patient-physician privacy, and women's guarantee of equal protection under the law because it relies on "outdated stereotypes about women's decision making ability and assumes that women are incapable of making important decisions without paternalistic help from the state."

The CRR challenged anti-choice legislation in 2008 and 2009 on technical grounds--when laws are bundled together, rather than enacted separately, as anti-choice laws were in those years, they violate the Oklahoma constitution. But this year, CRR is going at the heart of the legislation itself. In their original petition, the CRR argues:

"H.B. 2780 restricts the performance of abortions in the State of Oklahoma and burdens the free speech rights of abortion providers and their patients. In addition, the Act exposes abortion providers to an array of intimidating civil and administrative penalties to which no other health care providers in the State are exposed."

Ultrasounds are not medically necessary for abortion-seeking women, argues CRR, and forcing doctors to conduct them will dramatically impact their ability to provide abortions and infringe upon confidential doctor-patient relationships. At NARAL, Donna Crane says the ultrasound legislation is a ruse, anyway. While anti-choice legislators argue that ultrasound laws are about "informed consent," giving women all the information they need to make a good decision, Crane says that's an out-and-out lie. Instead, "this is about harassing women who have already made their decision."

Currently the CRR lawsuit is in the early discovery stages, but Toti says they hope to go to trial late in the summer. And, of course, they will continue to challenge unconstitutional legislation that could lead the way to a federal challenge to Roe v. Wade. While there's nothing on the books right now, says Toti, "it's certainly down the road given the legislature's persistence in year after year enacting these laws that are struck down as patently unconstitutional."

Crane believes that Oklahomans will soon recognize that their newly elected conservative officials--who campaigned on a platform of economic reform and jobs--have pulled a "bait and switch" on the electorate. "This is a group of candidates that has very strong anti-choice records, but did not necessarily promote themselves that way." Instead, says Crane, they "read the political climate" and saw a public charged up about jobs, but once in office, regressed back to the "same old agenda we've seen from these anti-choice politicians for years."

Resolute dedication to taking a way a woman's right to choose has been a staple of conservative politics in the state for decades--Crane says the anti-choice legislation "frenzy" is twenty years old. But year after year, politicians seem to come up with new ways to restrict reproductive freedom. Today, says Crane, the laws in Oklahoma are as bad as they've ever been.

"It's sort of of hard to imagine how it could get worse," she says. But each year, the number of anti-choice laws seems to tick up and up, and that's hardly a new trend, even with recent ultrasound legislation. Each year, NARAL tracks Oklahoma's steady increase in abortion restrictions. "If people are worried about the trends they're seeing, they should be 15 times more worried."


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