February 24th 2019 Newsletter
Three Views on SB 13, the Abolitionists Bill
How do lawyers look at SB 13?
We're presenting three opinions that focus on the actual language of SB 13 and how it would impact the state and how the courts will interpret the language. All names withheld to protect them from backlash from the abolitionists:
The Legal Ramifications of SB 13
Senate Bill 13, by Senator Joseph Silk (R-Broken Bow), will take the Right to Life cause backward in Oklahoma, contrary to the bill's stated purpose. SB 13 would remove most current pro-life protections for unborn children, such as preventing abortion on a minor girl where the abortionist has not obtained the consent of the girl's parent; preventing abortion where the mother has not been informed about alternatives to abortion and about the physical consequences of abortion; etc.
In exchange, SB 13 purports to outlaw all abortions. Unfortunately, neither federal nor state courts will uphold this provision of the bill. Those courts will, however, be happy to uphold those parts of SB 13 that remove current pro-life protections. In other words, if SB 13 were to be enacted, the courts would potentially enforce all of the bad parts of the bill, and certainly refuse to uphold the parts that purport to stop abortion.
The proponents of SB 13 likely realize that the courts will not uphold the parts of the bill that restrict abortion. Other parts of the bill attempt to compel the state to defy federal courts that would strike down SB 13. This process of deliberate defiance of federal courts is sometimes called "nullification."
Nullification has been tried in the past and has failed. Our nation fought a great war in the 1860s in part to settle the question of whether a state could nullify federal laws with which it disagreed, in that case involving slavery. The nullification side lost.
It would not take a war now for the federal government to bring a state to heel when it came to a nullification effort. Threatening to withhold just a small portion of states' share of federal highway funds in the 1980s forced every state to raise its legal drinking age to 21. If the federal government withheld even a small portion of Oklahoma's Medicaid funds, it would bankrupt many rural hospitals. Or federal officials could cut Oklahoma off from the federal banking system, making credit cards and checks in Oklahoma worthless.
How would the public then perceive the cause of saving the lives of unborn children? Not well. It would set back public support for the cause by decades.
Some have cited California's efforts to not cooperate with federal immigration officials in deportations as an example of defiance of the federal government that appears to work. But there's a crucial distinction between passively not cooperating with the federal government, and instead taking active steps to defy the federal government.
Passive non-cooperation with federal authorities, for instance in enforcement of immigration laws (or enforcement of gun control laws) might indeed work. For the federal government to punish a state for such non-cooperation, it would have to prove that the state DID SOMETHING in violation of federal law. But it would be easy for a state to say in its defense, "We didn't DO SOMETHING to violate federal law." The federal government would then have to prove that the state did not do ENOUGH to comply with federal law, a much tougher case to establish.
But if a state took efforts to prosecute abortion contrary to current federal jurisprudence, that state would NOT be able to say, "We didn't DO SOMETHING to violate federal law." In fact, the very language of SB 13 requires DOING SOMETHING to violate federal law. Thus, the federal government would easily be able to prove that the state violated federal law, and to impose penalties to bring that state to heel.
Fighting back against encroaching federal authority may be a worthy cause, but using the abortion issue in that cause is misguided and self-defeating. Those who wish to push nullification should use an issue for which passive noncooperation with federal law is the mechanism, where nullification might actually win. Using abortion as the mechanism is doomed to defeat.
Also problematic for the cause is SB 13's provision to punish women who seek abortion. Recognizing that many desperate pregnant women are misled or coerced into abortion by false statements like "it's just a blob of tissue, not a baby," and "your life will be ruined if you don't get an abortion," mainstream right to life efforts seek only to punish those who perform abortions, not the often desperate women who are tempted to seek an abortion. By seeking to punish desperate and under-informed women, SB 13 gains no effective protection for unborn children, but only puts right to life efforts in a bad light. It's like punishing a desperate father seeking to borrow money at a usurious interest rate to feed his family, rather than punishing the loan shark who charges that interest.
In addition to bringing the right to life cause into public disrepute, and to removing many current laws which provide some protection for unborn children, SB 13 would result in Oklahoma's tax dollars going to pay the legal fees of the abortion industry. The abortion industry sues to challenge most pro-life laws. Sometimes they win, and the state has to pay their legal bills. If the law being challenged has a decent chance of being upheld, the risk is worth it, even if the law ultimately is not upheld. But a bill like SB 13 has zero chance of being upheld in court, a fact the proponents of SB 13 acknowledge. Thus SB 13 will put more money into the hands of abortionists.
Pro-life Oklahomans are understandably frustrated with the slow progress of efforts to protect unborn children since the 1973 Roe v. Wade US Supreme Court case that tragically established a judicially-created "right" to abortion. But the answer is not a misguided attempt like SB 13, which will actually set the cause back, and at a time when the pro-life movement has made significant progress, not only in changing laws but also in changing the federal judiciary.
A football game is a good analogy. Impatient fans can be frustrated with the "3 yards and a cloud of dust" strategy of gradually moving the ball down the field. But to appease those understandable feelings of frustration by making every play a triple-reverse, or a long pass, is foolhardy. The likely result is a sack for loss of yardage, or worse, a fumble or interception for loss of possession of the ball entirely. And continuing the abortion analogy, the opponents have the ultimate defensive secondary -- the federal courts, making an interception or fumble (i.e. even fewer legal opportunities to oppose abortion) even more likely. Progress on abortion, like progress in football when the opponent's secondary is the strength of their team, is forced to be slow.
At this moment in U.S. history, the pro-life movement has the ball in a slow but gradual march downfield. Let's not let impatience with the slow progress goad us into misguided bills like SB 13 which, like desperation football plays, are destined to set the cause backward.
In part 2, we'll investigate more
In part 2, we'll investigate more
