Oklahoma Governor Mary Fallin
Oklahoma Governor Mary Fallin signed her state's version of the "Pain-Capable Unborn Child Protection Act" yesterday (we've been calling it "the Nebraska bill" after the state where it originated under the same name last year). It bans abortion after 20 weeks except to save a woman's life or prevent "irreversible physical impairment of a major bodily function." Oklahoma is the fourth state to sign such a bill.
The ban is based on the scientifically-disputed claim that a fetus can feel pain starting at 20 weeks. And Oklahoma's version of the new law -- like Nebraska's and Kansas' and Idaho's -- is almost certainly unconstitutional under the precedents set by Roe v. Wade and Planned Parenthood v. Casey. Proposals that mirror the Nebraska bill have been introduced in about a dozen other states this session, too.
Last week on the show, Rachel addressed the strategy behind the original Nebraska bill that became law in 2010, in all its likely unconstitutional glory, and all the subsequent Nebraska bills that are populating the state legislatures this year. Why do anti-abortion lawmakers seem so intent on making unconstitutional laws? The answer is that they seem to be looking for a Supreme Court battle. And why haven't abortion rights advocates mounted that challenge yet? Perhaps, Rachel said, they're looking at the make-up of the Supreme Court right now and they're afraid of what might happen once they get there. Then she put the question to NOW President Terry O'Neill:
MS. O‘NEILL: The problem with bringing a lawsuit in federal court to challenge these—to challenge these state laws is exactly what you said. We are afraid that the Supreme Court actually might take the opportunity to overturn Roe versus Wade. ... This is a court that is extremely activist when it wants to be. And I am really afraid that under Roberts' leadership and with Samuel Alito on the court, we could have a 5-4 decision either overturning Roe versus Wade or so gutting it that it might as well be overturned.
This week, Nancy Northrup, president of the Center for Reproductive Rights -- a group that defends abortion rights and launches legal challenges -- told Politico the organization hasn't challenged the Nebraska bill because it regulates only the small number of abortions that happen in later pregnancies.
"We don't jump just because the anti-choice movement jumps. . . . We're focused on pursuing cases that ensure that women have access to all abortion services. They're trying to move the agenda to a small percentage of cases, but we're not fighting on their turf."
If there was any doubt that anti-abortion lobbyists and lawmakers consider this battle to be "their turf," consider the following:
Mary Spaulding Balch of the National Right to Life Committee, which helped write the Nebraska bill, tells Politico this week, "This is all an explosion, which we think if presented to the court, they would recognize the rights of the fetus. ... I was surprised it wasn't challenged, and I would like to see that."
State Rep. Lance Kinzer (R-Kansas), who sponsored his state's version of the Nebraska bill, told the Kansas City Star last week, "We believe there is a good argument that we can find five justices on the Supreme Court who would agree that development of an unborn child to the point where they are capable of feeling pain is a judicially manageable standard to link restrictions on abortion."
Rev. Pat Mahoney of the Christian Defense Coalition tells CBN News this week, "We don't have to see Roe v. Wade overturned in the Supreme Court to end it. . . . We want to. But if we chip away and chip away, we'll find out that Roe really has no impact. And that's what we are doing." (h/t Dahlia Lithwick)