Oklahoma Senate bill criminalizes abortion. Can they do that?

Oklahoma Gov. Mary Fallin has not indicated if she will sign the bill, although some are calling it unconstitutional. 

Sue Ogrocki/AP
A Planned Parenthood clinic in Oklahoma City. The Oklahoma Senate passed legislation Thursday that would ban any doctor from performing an abortion.

If the governor of Oklahoma signs legislation passed Thursday, any physician found to have performed an abortion in the state could be sentenced to one-to-three years in jail and have his or her license revoked.   

The Republican-dominated Senate passed the bill 33 to 12. If the bill becomes law, it will make it a felony for any physician in the state to perform an abortion, except in order to save a woman's life. Opponents call the bill unprecedented in the post-Roe. v. Wade era. Supporters say it is not unconstitutional because the state is within its rights to set requirements for medical licenses, according to Reuters. 

Gov. Mary Fallin, a Republican opposed to abortion, has not said if she will sign it, according to Reuters. She has five days to decide whether to do so.

Since 2010, 18 states have moved to restrict abortions,  including Texas's House Bill 2, which passed measures requiring doctors who perform abortions to have admitting privileges at a hospital within 100 miles of of the clinic and requiring abortion clinics to meet the same standards as ambulatory surgical clinics. That law reached the US Supreme Court this term. Supporters say it ensures the safety of women. Critics argue that the law sets unnecessary standards and has led to the closure of more than half of the state's clinics, writes The Christian Science Monitor's Warren Richey in a three-part series about the measure.  

Despite legal battles, Oklahoma's legislation stands apart, says Maya Manian, a University of San Francisco law professor who lectures and writes about abortion rights.  

"This law is more blatantly unconstitutional," Professor Manian tells the Monitor in a phone interview. "Criminalizing the act of abortion is a more direct attack on abortion rights."  

"It will never stand in court," she adds. "It will be immediately struck out as long as Roe v. Wade is good law."  

David Cohen, a Drexel University law professor, said the legislation isn’t only unconstitutional, it will end up being expensive. 

"The state is wasting taxpayer dollars, not only in the time spent on this but also because inevitably the courts will make the state pay the attorneys fees for the challengers,” writes Professor Cohen in an e-mail. "In other words, this law is not only an obvious violation of women's rights but is also going to be very costly."

Under present law, "no person" in Oklahoma shall perform or induce an abortion "unless that person" is a licensed physician. The legislation passed Thursday would redact that exception, as well as revoke the licenses of physicians who perform abortions, unless the mother's life is in danger, writes Politico. This does not include exceptions for rape or incest.  

In contrast to Oklahoma's direct ban on abortion procedures, other states have increased safety requirements they say protect the health of women who receive the procedure, as in the case of Texas. This spring, Utah pushed the medical frontier of the abortion fight further, the Monitor's Jessica Mendoza reported, by including the requirement anesthesia be used on women more than 20 weeks pregnant, in case the fetus might feel pain. Research suggests that pain is unlikely until the third trimester. 

Before Oklahoma's bill, the most controversial had been the Texas law being considered by the Supreme Court. The high court has been operating shorthanded since the death of Justice Antonin Scalia in February, making the fate of the case unclear.

“This is a watershed moment in the battle for reproductive rights,” Nancy Northup, president of the New York-based Center for Reproductive Rights, told Richey.  

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