(Reuters) - The next major challenge to the constitutional
right to abortion in the United States could be a
strategically-worded anti-abortion bill gaining momentum in the
Oklahoma Senate Bill 1433, or the Personhood Act, grants
embryos full rights as people from the moment of fertilization.
It cleared the Oklahoma Senate in February and is expected to
pass in the GOP-controlled House in the coming weeks. The
state's Republican governor, Mary Fallin, is an abortion
opponent, though she has declined to state a position on the
The legislation is one of a handful of similar initiatives
around the country seeking to establish legal rights for
embryos, including last fall's failed attempt in Mississippi to
enact a personhood amendment to the state constitution.
Like its sister personhood measures, SB 1433 has been
controversial within the anti-abortion camp. The initiatives are
designed to provoke legal challenges from abortion-rights
supporters, with the ultimate goal of giving the U.S. Supreme
Court a vehicle to overturn Roe v. Wade, the landmark 1973
decision legalizing abortion. The personhood approach has the
backing of such abortion opponents as Republican presidential
candidates Rick Santorum and Newt Gingrich, but has been
criticized by some anti-abortion leaders, who fear the strategy
The measure also poses a quandary for the abortion-rights
side. If it chooses not to challenge personhood initiatives,
even the symbolic ones, that plays into the anti-abortion
strategy of chipping away at Roe. However, if abortion-rights
advocates challenge such laws, they run the risk of handing the
Supreme Court an opportunity to definitively repudiate Roe.
The wording of the Oklahoma measure appears to have been
guided by the more aggressive anti-abortion strategy.
The bill mimics almost verbatim similar legislation enacted
in Missouri in 1986, one of the country's first personhood
measures. Like the Missouri law, the Oklahoma bill requires the
state to give unborn children the same rights and privileges
available to other citizens, from the "moment of conception
But there is a crucial difference. While the Missouri
statute explicitly recognized that the rights of unborn children
are "subject to the Constitution of the United States, and
decisional interpretations thereof by the United States Supreme
Court," Oklahoma makes no such acknowledgement. That difference
brings the Oklahoma bill into direct conflict with Roe,
providing grounds for a lawsuit.
The omission of the "subject to" language certainly looks
like it's intentional, said Oklahoma senator Judy Eason
McIntyre, a Democrat who voted against the bill in the Senate.
The bill's backers seem to have figured, "If it's
unconstitutional, it'll be challenged in court," said McIntyre.
Talcott Camp of the American Civil Liberties Union, which
supports abortion rights, said the omitted language will be a
significant consideration in any decision to challenge the
statute. "If the bill becomes law, it's something we would look
at very carefully," she said.
The bill's co-sponsors, Senator Brian Crain and Rep. Lisa
Billy, have said that the bill simply defines when life begins
and, like Missouri's statute, would not prohibit abortion. They
did not respond to multiple requests for comment. But activists
on both sides of the abortion debate said that by introducing a
law that so brazenly conflicts with Roe, Crain and Billy are
inviting legal challenges that could ultimately land the case in
the Supreme Court.
Personhood USA, the Colorado-based grassroots group behind
the failed Mississippi personhood amendment, said the current
Supreme Court could uphold a personhood law that restricts
abortion, based on the argument that states have greater police
powers than the federal government under the 10th Amendment,
which grants states powers not delegated to the federal
With Oklahoma's Personhood Act, "I think we are on solid
footing," said Keith Mason, president of Personhood USA. "The
court has given strong indication it's a pro-states' rights
The more moderate wing of the anti-abortion movement,
however, seeks to chip away at Roe piecemeal, pushing, for
example, for state regulations that require parental consent,
ultrasounds and 24-hour waiting periods for abortions.
These activists said the aggressive personhood measures are
doomed to fail and could ultimately backfire.
Clarke Forsythe, senior counsel for Americans United for
Life, a lobbying group, said a personhood challenge would be
unlikely to succeed before the current Supreme Court. "We don't
have a majority on the Supreme Court right now, and personhood
isn't going to change the mind of the justices," he said.
Personhood laws that directly conflict with Roe v. Wade
could provoke the Supreme Court to adopt an even more
pro-abortion rights posture, striking down restrictions passed
by some states, said James Bopp, an Indiana lawyer and general
counsel for the National Right to Life Committee, the oldest and
largest anti-abortion group in the United States. Bopp labeled
efforts like the Oklahoma bill and personhood amendments,
"fruitless, imprudent and potentially damaging."
If signed into law, the bill would appear to ban abortion
outright and could trigger a number of immediate legal
challenges, said Caitlin Borgmann, a professor at CUNY School of
Law who specializes in reproductive rights law.
How to best position those challenges is an issue the
abortion rights movement is grappling with. On the one hand,
they don't want to bring a far-reaching case to the Supreme
Court if there's a risk of losing ground on reproductive rights.
At the same time, "these measures are so blatantly
unconstitutional on their face," said Ryan Kiesel, executive
director of the ACLU of Oklahoma.
One strong line of attack against the Oklahoma statute could
come from physicians, said Borgmann. They could argue the law is
unconstitutionally vague and deters them from engaging in their
work -- from performing abortions to treating ectopic
pregnancies or administering the morning after pill.
What's uncertain is when or even if a legal challenge could
make its way up the courts through the appeals process. When
abortion-rights forces sued to block Missouri's personhood law
in 1986, the lawsuit, Webster v. Reproductive Health Services,
didn't reach the high court until 1989. If the Oklahoma bill
passes and is challenged in federal court, it would have to be
appealed to the 10th Circuit, and then to the Supreme Court,
which would have to agree to hear the case.
Abortion-rights leaders said it was premature to discuss
mounting a legal challenge since the bill has not yet become
law. But Personhood USA's Mason said that in the past,
reproductive rights groups have sued to block personhood
amendments at the signature-gathering stage. They will sue to
challenge a personhood law "the second it passes," he said.
(Reporting by Terry Baynes)
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