(Reuters) - A proposed law in Oklahoma that would grant embryos full rights as people from the moment of conception may represent the next big challenge to the constitutional right to abortion in the United States.
Oklahoma’s Personhood Act passed the state Senate in February and is expected to be approved by the Republican-controlled House within weeks. The state’s Republican governor, Mary Fallin, is an abortion opponent and is expected to sign the bill if it passes.
If an embryo has full legal rights, abortion would represent murder. While the bill does not expressly prohibit abortion, abortion-rights advocates say there’s nothing to stop hospital administrators or local law enforcement agencies from restricting or criminalizing abortions under the law. The bill does not carve out exceptions for rape or incest.
Missouri is the only state so far with such a “personhood” law on its books establishing legal rights for embryos, though similar initiatives have been proposed in a handful of states.
These include last fall’s failed attempt in Mississippi to enact a personhood amendment to the state constitution and a similar proposal in Virginia that was put on hold by the legislature until next year.
But Oklahoma’s bill seeks to go farther than Missouri’s in challenging the landmark 1973 Supreme Court decision in Roe v. Wade that legalized abortion by not including language acknowledging that it defers to the court and Constitution.
Like other personhood measures, the Oklahoma bill 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 Supreme Court a vehicle to overturn Roe v. Wade, according to Keith Mason, a leader of the movement.
The personhood approach has the backing of such abortion opponents as Republican presidential candidates Rick Santorum and Newt Gingrich, and it has been an issue in the Republican presidential primary to select a candidate to run against President Barack Obama in the November 6 election.
Several Republican candidates, including Gingrich and Santorum, signed a pledge written by Personhood USA, the Colorado-based grassroots group behind the failed Mississippi personhood amendment.
Republican front-runner Mitt Romney, who believes abortion should be illegal, has not signed the pledge, which proclaims support for the “unalienable right to life of all human beings as persons at every stage of development” and vows to advance laws and judicial appointments that support those beliefs.
But Oklahoma’s measure has been criticized by some anti-abortion leaders, who fear the strategy could backfire by provoking the Supreme Court to strike it down.
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.
With four liberal and four conservative justices on the court, Justice Anthony Kennedy is considered the pivotal fifth vote on abortion, having gone both ways on the issue.
The wording of the Oklahoma measure appears to have been guided by the more aggressive anti-abortion strategy.
The bill mimics almost verbatim legislation enacted in Missouri in 1986. 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 until birth.”
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 state Senator Judy Eason McIntyre, a Democrat who voted against the bill in the Senate.
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 Representative 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.
The law’s impact on abortion was unclear in Missouri, which according to the Guttmacher Institute had six abortion providers as of 2008.
Personhood USA 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 government.
With Oklahoma’s Personhood Act, “I think we are on solid footing,” said Mason, president of Personhood USA. “The court has given strong indication it’s a pro-states’ rights court.”
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.
When the court, including Justice Kennedy, voted to preserve the core principles of Roe in 1992, it focused on the grounds that women have come to rely on abortion as part of their health care. That’s the rationale that unites the majority of the justices, Forsythe said, not personhood.
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, general counsel for the National Right to Life Committee. He called 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.
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.
Reporting by Terry Baynes in New York; Editing by Cynthia Osterman