April 30, 2012
A proposed ballot issue that would have defined a fertilized human egg as a person is unconstitutional, the state Supreme Court ruled Monday.
The nine justices were unanimous in ruling the personhood proposal was void and should be stricken, saying the U.S. Supreme Court already has ruled that women have a constitutional right to an abortion. The Oklahoma Supreme Court has ruled in the past that unconstitutional initiatives should not make it to voters on a ballot.
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The personhood proposal, Initiative Petition No. 395, would have effectively banned all abortions and many types of birth control, as well as severely threatened fertility treatments such as in vitro fertilization, said officials with The Center for Reproductive Rights, which filed the lawsuit questioning its constitutionality. Backers were trying to get it on November's general election ballot.
Dan Skerbitz, of Tulsa, director of Personhood Oklahoma, said the group will look at its options, including the possibility of getting lawmakers to pass a resolution to put the issue directly on the ballot.
“We're disappointed by the ruling,” Skerbitz said. “We're going to look at the legal ramifications of the ruling and what legal options are there if any, and then also how that impacts what we're trying to do from just a pro-life option, which will never stop.”
It's the second blow in less than a week for backers of the personhood effort in Oklahoma. Leadership in the state House of Representatives on Thursday refused to take up Senate Bill 1433; it was the last day Senate bills could be taken up in the House. Backers of SB 1433 said it was a statement that Oklahomans value life and that nothing in the measure would prohibit contraception or in vitro fertilization; opponents said it could lead to restrictions on abortions, birth control, in vitro fertilization and stem cell research.
“This is a highly charged issue and one that draws a lot of attention from all over the country,” Skerbitz said. “What the Legislature did was a huge disappointment; we'd hoped they'd showed a little more courage.”
Skerbitz said earlier that a goal of seeking the constitutional amendment is to draw a legal challenge to the 1973 Roe v. Wade ruling that struck down anti-abortion laws in the nation.
About the lawsuit
The Center for Reproductive Rights filed the lawsuit on behalf of Oklahoma physicians who provide a range of reproductive health care to women, including contraceptives, abortion care, prenatal care and infertility treatment, and on behalf of women who would have been affected by the amendment.
Nancy Northup, president and chief executive officer of the Center for Reproductive Rights, said, “In this case, the Oklahoma Constitution said it best: It is not acceptable to propose amendments that are ‘repugnant to the Constitution of the United States.'
“This amendment would have run roughshod over the fundamental, constitutionally protected reproductive rights of all Oklahoma women,” Northup said.
Ryan Kiesel, a former state lawmaker who is executive director of the American Civil Liberties Union of Oklahoma, said he was relieved by the high court's ruling.
“It speaks volumes that a unanimous court of Democratic and Republican appointees reaffirmed the constitutional right for a woman to make her own reproductive health care decisions without interference from the government,” he said.
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The state justices said they had little choice.
“The United States Supreme Court has spoken on this issue,” Chief Justice Steven Taylor wrote. “The states are duty bound to follow its interpretation of the law.”
The Oklahoma justices referred to a 1992 U.S. Supreme Court case in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged. The court upheld a woman's constitutional right to have an abortion, with the justices imposing a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Twenty years ago, the Oklahoma Supreme Court made a similar ruling to Monday's state high court opinion.
In a 1992 case about a month after the U.S. Supreme Court decision involving Pennsylvania, the Oklahoma Supreme Court blocked a ballot initiative that sought to ban abortion in Oklahoma, saying, “When the unconstitutionality of the initiative petition is manifest, a pre-election judicial determination of the issue is both appropriate and necessary to avoid a costly and useless election.”
Backers of the personhood proposal were seeking to get signatures of about 155,000 registered voters to put the question on the Nov. 6 ballot. A state law passed in 2009 requires protests to initiative petitions be filed with the Supreme Court before all the signatures are collected.
“We'll have to restrategize our on-the-ground efforts here in Oklahoma,” Skerbitz said. “There are ways around the Supreme Court.”
Officials with the Center for Reproductive Rights said the ballot proposal, if approved, would have banned abortion under all circumstances, including in cases of rape and incest or when a woman's life or health is at risk.
It also had the potential to affect a wide range of other medical care, including treatment of ectopic pregnancy, in vitro fertilization, stem cell research and medical treatment for pregnant women.
The proposed ballot question was similar to but different from SB 1433, which states Oklahoma is an anti-abortion state. The bill would not have made women subject to homicide or manslaughter charges for seeking an abortion, because abortion is allowed by the U.S. Supreme Court, the measure's authors have said.