What the Failed Oklahoma Abortion Bill Tells Us

A woman is shown in the last trimester of her pregnancy, on March 26. The Oklahoma bill, vetoed by the state's governor, Mary Fallin, would have criminalized the performance of all abortions, for which felony liability would attach to the performing physician, who could have served up to three years in prison. Regis Duvignau/reuters

This article first appeared on the Verdict site.

Last month, on May 20, the governor of Oklahoma, Mary Fallin, vetoed an abortion restriction passed by both houses of the Oklahoma legislature. Though generally a supporter of anti-abortion legislation, the governor balked because of the scope of the particular bill.

The legislation in question would have criminalized the performance of all abortions, for which felony liability would attach to the performing physician, who could have served up to three years in prison. The bill would also have revoked the license of any physician who performed an abortion (except for one necessary to save the life of the mother, an exception that—interestingly—did not appear to make its way into the felony provision).

In this column, I will examine what distinguishes such a bill, reportedly the first of its kind, from the more common abortion restrictions that have become popular of late.

I will suggest that this legislation more authentically reflects the pro-life perspective on abortion, however unpalatable to the general public, and that it is even defensible if one truly enters the mindset of one who believes that a fully entitled "life" has come into existence at conception.

The More Common Abortion Restrictions

While the Oklahoma bill in question departs significantly from the norm, states have been quite regularly passing more modest bills that do (and are almost certainly meant to) interfere with a woman's right to exercise her reproductive choice to terminate a pregnancy.

Quite a few states, including—most recently—South Carolina, have enacted bans on abortions that take place after 20 weeks' gestation. Most notably, Texas has in place a law—currently under challenge in the U.S. Supreme Court—that requires doctors who perform abortions to have admitting privileges at a local hospital and requires abortion clinics to be equipped as ambulatory surgical centers. Though all of these laws are disruptive of the right to abortion, none is as "bold" as the Oklahoma law.

Why would abortion opponents pass laws that permit abortion but simply place obstacles in the path of those who seek to obtain them?

One answer is that the U.S. Supreme Court has held that women have a constitutional right to terminate a pregnancy up until the point of viability (and, to preserve her life or health, even after viability). Restrictions that plainly violate this constitutional right are likely to be successfully challenged in court and thus to cost their defenders money and time for no immediate gain.

Less blatantly unconstitutional restrictions, by contrast, have a chance of surviving judicial scrutiny and will then provide a gain from the perspective of pro-life individuals: it will reduce the number of abortions by impeding access to the procedure.

The Problem of Compromise

The one downside of less extreme abortion restrictions, from the pro-life point of view, is that they potentially compromise and thereby betray the principles that drive the people who press for them.

The principle that drives the core of the pro-life community is that life begins at conception and any procedure that terminates the life of even a zygote is tantamount to murder. For people who hold this view, there is something objectionable about pressing for laws that implicitly reject this framing of abortion.

Take the 20-week ban as an illustration. Banning abortion at 20 weeks necessarily implies that there is something about a 20-week fetus that morally distinguishes her (or him or it) from a 19-week fetus or, more importantly, from a 1-day-old zygote, such that killing the latter remains legal while killing the former becomes subject to a ban.

Not only is this idea foreign to the core values of the pro-life movement, it actually mirrors the views of the movement's opponents by adopting a framework in which the older a fetus gets, the more like a "person" it is and therefore the more morally problematic its killing is.

The logical extension of this view is that killing a newborn baby is worse than terminating a pregnancy and that this is why abortion is, by and large, not treated as murder, despite the pro-life position on the matter.

An Uncompromising Ban

By contrast to 20-week bans or "pain capable abortion" laws, which imply a hierarchy in which a zygote is necessarily something "less than" a later fetus, the Oklahoma felony provision would have treated all abortions equally, regardless of when in pregnancy they took place.

Any abortion, under the law, would subject the doctor to felony liability, even an abortion undertaken to save the life of the mother (though the latter would apparently not subject the doctor to license revocation, only to prison time). The meaning of such a law is that a fully entitled human being has begun to exist at the moment of conception, and that human being's deliberate destruction is no less eligible for criminal prosecution than a much later-term fetus's destruction.

Mainstream views tend to regard later abortions as worse than earlier ones, perhaps in part because very late abortions can inflict harm on a fetus who is already capable of feeling pain (and is accordingly sentient). When pro-life advocates propose legislation that bans "pain-capable abortions" or other late-term procedures, they are thereby appealing to the mainstream view that a zygote's moral worth is far less than that of a late-term fetus that is capable of experiencing the world around him or her.

By catering to the mainstream, though it does have the "beneficial" effect of impeding access to abortion, advocates may feel uncomfortable about betraying their core principles.

The Oklahoma bill, then, is ideal for those who have a clear and unequivocal position on abortion that says that a zygote is no less a fully entitled moral being than a newborn baby is. Not only do they hold that position, one that they might share with people willing to compromise to gain support and survive constitutional scrutiny, but they propose legislation that fully embodies that position and betrays no principles in the process.

But the Life of the Mother?

Some readers may be shocked by the feature of the Oklahoma bill in which a doctor who performs an abortion to save the life of the mother may still be subject to felony liability and corresponding prison time. Does anyone really hold the view that an abortion to save the life of the mother is wrong?

The answer to that question is yes, and I will try here to explain why that position makes sense, if one truly believes that a zygote is a fully entitled moral being with a right to be and to remain where it is.

Many of us think of a zygote or embryo or fetus as, at least in a sense, invading the internal physiological space of the pregnant woman. Some of us may still oppose most abortions, on the theory that such invasion of the woman's internal space is both arguably consensual (assuming that intercourse was consensual) and less significant than the alternate harm of killing the zygote, embryo, or fetus.

But when the fetus threatens the life of the mother, then the internal invasion narrative of pregnancy leads us to say "remove the fetus" (even at the cost of killing it) and thereby avoid allowing the fetus to kill the mother.

Those who view the zygote, embryo, or fetus as an internal "occupier" of the woman therefore regard a threat to the mother's life as akin to a self-defense situation, in which the woman has the right to defend her life from what is essentially an attack on it by her own fetus.

But consider a different way of thinking about the zygote living inside the woman. Although the woman was there first, one could regard this detail as irrelevant (much as we regard a person's being older than another person as irrelevant to the right to life).

The woman and the fetus, on this alternative account, are both occupying the same space and are both equally entitled to be doing so. The woman's blood supply nourishes both her and her fetus, and they are both naturally dependent on the oxygen and nutrients that the woman takes into her body.

The woman and fetus are, in this scenario, like two inhabitants of a lifeboat, both of whom need to be there to survive. If suddenly the lifeboat became able to sustain only one of its passengers, it would not follow legally (or, arguably, morally either) that either passenger would be entitled to throw the other passenger overboard to save himself or herself.

As soon as we conceive of the fetus as simply a co-occupant of the same physical space as the woman, rather than as a parasite of the sort that inherently invades what is primarily the woman's space, it becomes far less clear that the woman may kill (or do the equivalent by expelling) the fetus in order to preserve her own life.

The above narrative of a fetus's place inside a woman's body is not one that I find convincing. It is, however, one that I can understand, and it leads to the logical consequence that even in a case in which continuing her pregnancy threatens the woman's very life, it may still be morally impermissible to abort.

For those who take this position (such as the Catholic Church), a law that criminalizes the performance of all abortions, including those that would save a mother's life, is not only comprehensible but in perfect alignment with their morality.

For them, this law has the benefit of accurately and authentically reflecting what they view as the wrongfulness of abortion, a wrongfulness that has nothing to do with the timing of the procedure, the reason for the procedure, or the presence of absence of admitting privileges and/or surgical equipment at the facility where the procedure is performed.

Why Ever Compromise, Then?

One response to this defense of the Oklahoma law might be that perhaps all anti-abortion laws should look like this. Why would anyone compromise and pass legislation that falls short—often extremely short—of what an advocate truly believes?

As Michael Dorf and I have discussed in detail in our book, Beating Hearts: Abortion and Animal Rights, there are strategic reasons for advocating for something that is not only less than what one truly wants but morally inconsistent with one's true goals, as is the case for laws that prohibit abortions based on how late along in pregnancy they occur (thus implying that something short of a true "life" exists at conception).

In the case of abortion, an important strategic reason for supporting such legislation is that it can have the effect of acclimating people to abortion restrictions, which can then—without triggering as much of a backlash—pave the way to more restrictive regulations in the future.

Another reason is that even though a late-term abortion ban is inconsistent with the pro-life narrative, it is also inconsistent with the feminist, pro-choice narrative: It challenges the idea that a woman should have complete sovereignty over what and who gets to live inside her body; and it also challenges the notion that prior to birth (or even to viability), there is nothing but "tissue" inside her womb.

A 20-week abortion ban—to the extent that it attracts support from mainstream folks—thus helps move the dialogue away from the feminist view of abortion, and a big part of the "battle" over abortion involves combating the other side's view, not simply promoting one's own side's approach.

Ultimately, there is therefore good reason for passing legislation that stands a chance of surviving judicial scrutiny, even if it does not authentically capture a proponent's genuine view of the issue at stake.

The Oklahoma statute—pure as it was—was, after all, never signed into law. And for those of us who support a woman's right to choose an abortion, that vetoed outcome is just as well, even as we keep at the front of our minds the true objectives of our opponents, as so plainly revealed in that law.

Sherry F. Colb is professor of law and Charles Evans Hughes scholar at Cornell Law School. Her most recent book is Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans.

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