Sitting at a conference table with a contingent of colleagues, almost all of them unmasked, state Rep. Jim Olsen laid out a bill that would end abortion in Oklahoma.
Under Senate Bill 612, anyone who provided or “attempted” to provide an abortion could be charged with a felony punishable by up to 10 years in prison and a $100,000 fine.
But, state Rep. Denise Brewer asked, wasn’t the legislation unconstitutional? Wouldn’t it be a “waste of time and money” to pass the bill and then try to defend it in court?
Olsen falsely claimed that the bill would be constitutional. And regardless, he added, it was the moral thing to do. He offered a factually inaccurate and troubling analogy: The British lawmaker William Wilberforce dedicated his life to abolishing slavery but died before he could see it happen. (Wilberforce actually died after passage of the Slavery Abolition Act of 1833.) After 35 years of trying to abolish slavery, Olsen said, Wilberforce “died an apparent failure,” but that didn’t mean he shouldn’t have dedicated his life to the cause. “And this is a cause of even greater import,” Olsen said of banning abortion, “because it deals with innocent unborn life.”
Photos: Sue Ogrocki/AP
Rep. Ajay Pittman, one of just eight members of the state’s Legislative Black Caucus, followed up: “You’re saying that saving the … life of an unborn child is more important than saving the lives of slaves?”
“None of us would like to be killed,” Olsen replied. “If I had my choice, I guess I’d be a slave; at least a slave has his life.”
Pittman subsequently left the room. The bill sailed out of committee on an 8-1 vote.
In a statement posted to her website, Pittman blasted Olsen for his remarks. “In times like these where we see our nation on the cusp of reckoning social and racial injustices, we still endure implicit bias from our colleagues who are insensitive to what is said about the hurtful and ugly past of this country’s treatment of African Americans,” she said. “We continue as policy makers to chip away at the rights of women to choose proper healthcare for themselves … and now we are hearing our colleagues compare these healthcare issues to slavery, which also limited the rights of Black women by not allowing them to have a choice not to have children by their slave masters.”
Olsen’s bill is just one among hundreds filed in legislatures across the country that seek to severely curtail, if not simply ban, abortion. 2021 has already seen 532 bills restricting abortion filed in 44 states, according to Elizabeth Nash of the Guttmacher Institute. Of those measures, 22 have been enacted in six states.
Emboldened by a newly conservative U.S. Supreme Court, many states have dropped all pretense that abortion restrictions are needed to ensure the health and safety of patients, said Jessica Arons, senior advocacy and policy counsel for reproductive freedom at the American Civil Liberties Union. “They’re just throwing everything at the wall to see what will stick,” she said, crafting extreme measures designed to wind up in court and potentially before SCOTUS. In March, Arkansas Gov. Asa Hutchinson said as much after signing into law a near total ban on abortion. “I signed it because it is a direct challenge to Roe v. Wade,” Hutchinson told CNN. “That is the intent of it.” To date, each of these extreme laws has been blocked by the courts.
But while there are plenty of straightforward bans, like the one in Arkansas and Olsen’s SB 612, there is also a crop of more “sinister” approaches, as Arons put it. Elisabeth Smith, chief counsel for state policy and advocacy with the Center for Reproductive Rights, described these approaches as employing procedural “smoke and mirrors” to try to ban abortion without explicitly taking aim at Roe. “What we see are opponents of abortion rights … trying to sneak around the Constitution to pass their rules.”
Among those employing the burgeoning smoke-and-mirrors approach are lawmakers in Texas. On its face, state Sen. Bryan Hughes’s Senate Bill 8 looks a lot like bills passed in 11 states that ban abortion altogether or after about six weeks’ gestation, which is long before most people know they’re pregnant. Notably, each of those measures has been blocked by the courts. With that in mind, Hughes has taken a different tack: Instead of making the ban enforceable by a government actor — say, the state health department or the attorney general — SB 8 allows literally anyone to take matters into their own hands by filing a civil suit in state court against any doctor they believe may have violated the law. It also allows individuals to file suit against anyone who “aids or abets the performance or inducement of an abortion,” which could make any number of people vulnerable, including friends or relatives who lend someone money to pay for an abortion or drive a patient to a clinic.
“Senate Bill 8 is crafted to lead to judicial victories,” John Seago, legislative director for Texas Right to Life, said during a committee hearing on the bill. “This bill is written to succeed where 11 other states have failed.”
The goal is to make it impossible for abortion providers to sue the state to block the law from taking effect, what’s known as a pre-enforcement challenge. If the state isn’t responsible for enforcement, the thinking goes, then providers have no way to mount that kind of challenge to an otherwise unconstitutional ban on pre-viability abortion.
The bill would also bar providers from collecting attorneys’ fees when they win in court — a move that imposes an extra burden on doctors, while further incentivizing individuals to sue them. Indeed, Texas and a number of other states have had to pay out millions in attorneys’ fees when their abortion restrictions are blocked in court.
“This bill tries to use tricky procedural moves to undermine years of Supreme Court precedent in an attempt to deny abortion to Texans,” said Julie McClain Downey, senior director of advocacy communications for the Planned Parenthood Action Fund.
The idea for this strategy has its roots in a Louisiana case from the 1990s known as Okpalobi v. Foster, said Smith. There, lawmakers passed a bill that said patients could sue abortion providers for “any damage” caused by an abortion. Represented by the Center for Reproductive Rights, the providers sued the governor and attorney general, arguing that the law would have a chilling effect that would amount to an undue burden on people seeking access to abortion. The district court agreed, blocking the law, and a three-judge panel of the 5th U.S. Circuit Court of Appeals upheld that decision. But after revisiting the case, the full bench of the 5th Circuit concluded that while the law might be unconstitutional, because it had codified a means for private legal action, the providers couldn’t sue the state to block it from taking effect. (The law is still on the books in Louisiana.)
“It’s deputizing anyone to harass a provider with no basis.”
“Texas has hanged its hat on that precedent,” Smith said. But it’s not clear it will actually work. For one thing, because of the way the civil legal system is structured, the person filing suit has to have suffered actual harm. SB 8, meanwhile, would allow anyone to sue based on mere speculation that a doctor had violated the ban. “It’s deputizing anyone to harass a provider with no basis,” she said. “They’re trying to dress up this unconstitutional bill as something that’s unassailable, but we know that’s not the case. If this becomes enacted, abortion providers in Texas are not going to allow that to go unchallenged.”
In Tennessee, where a number of abortion restrictions have been blocked by the courts, including a six-week ban, lawmakers are now considering a measure that would allow a person to prevent another’s access to abortion by claiming paternity. Notably, the law would not require the person bringing suit to provide any DNA evidence to back up their claim. “The bill would allow someone to petition for an injunction to stop a woman from seeking medical care without providing scientific testing results proving that they are the biological father of the embryo or fetus,” ACLU of Tennessee Legal Director Thomas H. Castelli wrote in a statement to The Intercept. “This is one of its many, many problems.”
Oklahoma tried, and failed, to pass a similar measure in 2017, which would have required a pregnant person to get the approval of their partner before being able to access abortion. Such notification measures have long been deemed unconstitutional.
Nonetheless, Republican state Sen. Mark Pody told The Tennessean that he believes “a father should have a right to say what’s gonna be happening to that child.” And if “somebody is going to kill that child, he should be able to say, ‘No, I don’t want that child to be killed.’”
Reproductive rights advocates in Tennessee have decried the measure. “This unconstitutional legislation demonstrates the condescending mindset underlying this bill: that men should control women’s bodies,” Hedy Weinberg, executive director of the ACLU of Tennessee, told the newspaper. “Women are not chattel and this bill needs to be stopped in its tracks.”
Back in Oklahoma, Olsen is carrying another anti-abortion bill that also tries to sneak around its obvious constitutional defects. House Bill 1102 would amend state statute governing medical practice to define providing abortion as “unprofessional conduct,” punishable by license revocation.
During a recent discussion of the bill on the House floor, Olsen variously defended the measure as perfectly legal (states have long had the freedom to control medical licensure, he said); as a vehicle to challenge Roe v. Wade (“It may end up going all the way there”); and as a moral duty. He stated repeatedly that banning abortion was necessary to ensure equal rights. “That mother has a right to life and so also that baby has a right to life. So in the whole question, we have to factor in the mother and also we have to, on an equal basis, factor in the life of the baby as equally valuable,” he said.
State Rep. Meloyde Blancett later followed up: Did Olsen think that women who chose abortion were criminals?
“Those that do wrong, men or women who break the law of God, will be accountable to God. Hopefully we would have those major items in statute,” he said. “A woman who consents to the killing of her unborn child without a significant threat to her life, she is doing wrong, and she’ll one day answer to God for it.”
“Do you believe that you’re representing the word of God on the floor today with your bill and your pronouncements?” Blancett asked.
“Yes, ma’am,” Olsen replied.
The bill passed 81-18 and is now pending in the Oklahoma Senate.
Pulling Back the Curtain
Despite the different approaches taken by lawmakers across the country, these bills have one thing in common, advocates for reproductive rights say: They’re unconstitutional. Take Olsen’s bill to deem abortion unprofessional conduct. “By restricting doctors from providing abortion under the threat of license revocation … this bill is banning the provision of abortion altogether,” said Nimra Chowdhry, state legislative counsel for the Center for Reproductive Rights. “This bill is a ban just like any other abortion ban.”
And there are a lot of them this year, in part because legislative operations mostly ground to a halt in 2020 as the coronavirus pandemic accelerated (though that didn’t stop a number of states from trying to exploit the public health crisis to bar access to abortion care). Even as the pandemic and its fallout continue, lawmakers have filed roughly 100 more bills this year than they did in 2019. In fact, the number of bills filed in 2021 is the highest since 2011, which saw 610 abortion restrictions filed.
The Guttmacher Institute’s Nash says there are a lot of similarities between then and now: In 2010, a number of state legislatures lurched to the right, anti-abortion activists increased their on-the-ground organizing, and lawmakers who faced myriad problems related to the Great Recession turned to abortion to energize their base. In 2020, state legislatures did a rightward creep, and anti-abortion activists and lawmakers are jazzed by the prospect of sending an abortion law to the Supreme Court that the newly minted 6-3 conservative majority might seize on to revisit abortion rights.
“They’re clearly confident that they have a court system that is staffed to interpret the laws in the way they want.”
The energy animating this ambition has pulled back the curtain on the real intention behind these measures. For years, anti-abortion lawmakers pushed abortion restrictions under the guise of protecting the health and safety of patients. “We saw abortion opponents try to chip away access to abortion care by passing restrictions that weren’t going to catch the attention of most people,” said the ACLU’s Arons. Things like mandating hospital admitting privileges, which may seem reasonable on its face until you realize that many abortion doctors can’t get hospital privileges for a variety of reasons that have nothing to do with the safety of abortion. Moreover, in a medical emergency, a patient would go to a local emergency room, not to a hospital that could be hundreds of miles away in order to be admitted by their abortion provider.
Now, however, “all of these states that are so hostile to abortion rights decided to go for broke and have become very blatant in their attempts to outlaw abortion,” Arons said. “Whether it’s a full-frontal ban on abortion or one of these more nefarious and surreptitious regulations, they’re trying to push care out of reach. And they’re clearly confident that they have a court system that is staffed to interpret the laws in the way they want.”
Smith, of the Center for Reproductive Rights, agrees. “We are really seeing people be much more explicit about what has always been their goal: prohibiting abortion entirely,” she said. “And I think that’s the piece that’s important for everyone to know, that the bills may be more extreme now, but this was always their goal.”