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Oklahoma Supreme Court Tells Legislature: Stop Wasting Money on Unconstitutional Laws

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Anti-choice legislators in Oklahoma are experts on at least two things: waste and distraction. After repeatedly introducing laws - and having them overturned by the courts for being unconsitutional - that do nothing more than force government intrusion into the professional lives of physicians and the personal lives of women seeking reproductive health care, they continue to waste taxpayer time and money by ignoring constitutional rules.

Yesterday, a bill that may be unconstitutional sailed through the OK House and is on its way to the Senate. It would force physicians performing abortions to narrate an ultrasound description to the pregnant woman on whom the ultrasound is being performed. This was one week after an Oklahoma district court ruled unconstitutional a 2009 law that created a public web site where doctors would be forced to publish personal information on women who have had abortions (including their names and the reason for their abortions). And now the Oklahoma Supreme Court confirmed the ruling of a lower court that mandatory viewing of ultrasounds is unconstitutional putting to rest a 2008 law that would have forced women to view the ultrasound of their pregnancy prior to receiving an abortion.

The 2009 law was overturned in response to a case brought by the Center for Reproductive Rights (CRR), and would have also banned sex-selective abortions, in addition to legislating other abortion-related issues as well. The law was ruled unconstitutional because it dealt with too many issues simultaneously - violating Oklahoma's constitution that laws must pertain to only a single subject.

In 2008, anti-choice legislators were able to get a law passed that would have legislated forced ultrasounds - including a specific description of the ultrasound image:

Under the guise of obtaining informed patient consent, this new law requires doctors to withhold pregnancy termination until an ultrasound is performed. The law states that either an abdominal or vaginal ultrasound, whichever gives the best image of the fetus, must be done. Neither the patient nor the doctor can decide which type of ultrasound to use, and the patient cannot opt out of the ultrasound and still have the procedure. In effect, then, the legislature has mandated that a woman have an instrument placed in her vagina for no medical benefit. The law makes no exception for victims of rape and incest.

Once again, however, CRR successfully had the law overturned in court using the same "single-issue" argument as the law attempted to both force the viewing of an ultrasound as well as compel the physician to describe the ultrasound "in detail."

In a strongly worded "excoriation" of the Oklahoma state legislature, according to Stephanie Toti, a staff attorney at CRR, the Supreme Court ruling calls the passage of these laws "a continuous failure to abide by the Oklahoma constitution."

The Supreme Court ruling released on March 2, 2010, confirmed the lower court ruling on SB 1878, the 2008 law requiring mandatory ultrasound viewing. This was part of a bill that included a veritable menu of other anti-choice provisions including mandaes for the posting of signs in abortion clinics stating that a person may not be coerced into having an abortion procedure and for the information physicians provided to their patients about RU-486. The ruling states:

"We are growing weary of admonishing the Legislature for so flagrantly violating the terms of the Oklahoma Constitution."

The Oklahoma Supreme Court goes on to state that violating the OK Constitution over and over again in relation to the single-subject rule ("Over the last two decades we have addressed the single subject rule at least seven times") is:

"...a waste of time for the Legislature and the Court, and a waste of taxpayer's money."

While this current bill before the Oklahoma legislature, HB 2780, does not force women to view the ultrasound, it does compel that the doctor describe the ultrasound image. For what it's worth, ultrasounds are a standard part of abortion care already - in order for a doctor to perform an abortion procedure, she or he needs to view the embryo or fetus inside the womb to ensure that there are no signs of an ectopic pregnancy, for example.

At the clinic for which I worked, the offer to view the ultrasound was part of the care we provided to each woman. It was our philosophical belief that offering women the opportunity to receive more information while allowing her to make the ultimate decision, allowed for a more empowering experience. Laws that force women to view the ultrasound or to hear a description of the ultrasound being performed and therefore force physicians to perform or provide a medical service, infringe on the doctor/patient relationship in dangerous ways.

Astoundingly, the bill passed the OK House without a question or a discussion, despite this history of wasting taxpayer time and money by passing unconstitutional laws and then having them overturned. According to NewsOK:

House members didn't ask questions or debate House Bill 2780. It passed 87-7 and now goes to the Senate.

The Supreme Court ruling admonishing the legislature for their failure of duties was released one day after the passage of the bill, but women's health advocates now have this strong condemnation of the state legislature's tactics as one more tool to use to defeat these anti-choice bills. Stephanie Toti at CRR says that they need to "take a closer look" at the House bill to see "whether it addresses single or multiple subjects" but that even if it addresses only a single subject, it "still suffers from other constitutional infirmities" by violating both a women's right to privacy and a physician's right to free speech.

This post originally appeared on RH Reality Check, a progressive, online publication covering global reproductive and sexual health news and information.