Kennedy injected into that case the constitutionally novel idea that because some women come to regret their abortions, the court could substitute its judgment for their doctors' by sparing them from a procedure that women would reject as too gruesome if they only knew the details. In Kennedy's opinion, the solution wasn't to give women more information, as Justice Ruth Bader Ginsburg pointed out in dissent. It was to take away one form of abortion entirely. Under the new Oklahoma law, by contrast, doctors are prevailed upon to show and tell about the fetus whether or not women want to see and hear. But the state-knows-best impulse remains the same: Women can't define consent for themselves; they need lawmakers and judges to do that for them and to protect them from their abortion providers.
In this sense, the Oklahoma abortion law is like a South Dakota statute that requires doctors to give patients who come for an abortion a mandatory written statement telling them that an abortion includes "increased risk of suicide ideation and suicide," even though there's no good evidence of such a risk. Both laws leave doctors with an ethical quandary. They can either risk criminal prosecution by breaking the law or follow it and either (in Oklahoma) do an ultrasound against a patient's will or (in South Dakota) read a state-mandated script for which there's no solid medical backing.
For pro-life advocates, the dilemma for doctors is all gravy. If the laws make abortion providers feel like they can't in good conscience perform abortions in light of the statutory straitjacket, maybe already beleaguered state clinics will have to close their doors. Oklahoma currently has only three abortion clinics. South Dakota has one. Also bedeviling the clinics are the time periods set for doctors to carry out the legislature's instructions. The ultrasound must occur at least an hour before the abortion in Oklahoma, and the South Dakota script must be read to a woman at least two hours beforehand. These waiting periods thus mean that clinics must eat into one of their scarcest resources: a doctor's time.
Since the Supreme Court's 1992 decision in Planned Parenthood v. Casey, the test for whether a state abortion regulation can withstand constitutional scrutiny has been whether it imposes an "undue burden" on a woman seeking the procedure. When you think about the time, cost, and doctor-patient interference, Oklahoma's statute should be an easy call. Then again, the U.S. Court of Appeals for the 8th Circuit swept such concerns aside and allowed South Dakota's law to go into effect last summer, lifting a federal district court's preliminary injunction. ('Tis the season for state action on the abortion front: Colorado and South Dakota each have a referendum on the ballot that abortion opponents are campaigning for. South Dakota's would prohibit abortion except in the case of rape and incest or to protect a woman's health. Colorado's would define a "person" to "include any human being from the moment of fertilization.")
The Center for Reproductive Rights is worried enough about an outcome like the one in the 8th Circuit that it based its challenge to the Oklahoma ultrasound statute entirely on state constitutional law. That means no federal court can review the state courts' decisions (because those courts get to interpret their own constitutions). This was a tough decision, Toti says, but Oklahoma's Constitution has been interpreted in the past to give stronger free-speech and due-process protections than the federal Constitution. And so it seemed like a better bet when it comes to the showdown over what constitutes an undue burden or an infringement on a doctor's free speech right. At least with this U.S. Supreme Court.
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