FINAL UPDATE at 3:14 p.m. (FURTHER UPDATE Wednesday 2:31 p.m. The case has been docketed under the title Personhood Oklahoma v. Barber, et al., and given the number 12.145.)
In a move that might lead the Supreme Court to take a new look at abortion rights, supporters of a thwarted “personhood” state constitutional amendment in Oklahoma have asked the Supreme Court to clear the way for the state’s citizens to vote on that proposal. Such a vote was blocked by the state Supreme Court in April, finding that the proposal was unconstitutional under a 1992 Supreme Court ruling that mostly reaffirmed Roe v. Wade. The new petition is here; the state Supreme Court ruling is here. (The case has not yet been assigned a docket number.)
Although the case is centered on citizens’ right to propose ballot measures, the fact that the state court in blocking Question 761 relied upon the continuing validity of the Court’s decision in Planned Parenthood v. Casey in 1992 could put that precedent in play. And that may be precisely what the supporters of the idea that fetal life should be protected from inception ultimately want to happen.
Oklahomans who favor fetal “personhood” last March sent to state officials an initiative measure that would have been put to the state’s voters as Question 761. It would change the state constitution to re-define “person” as “any human being from the beginning of the biological development of that human being to natural death.” As such, the measure said, fetuses would have “inherent rights” as persons that could not be taken away “without due process of law,” and each such person was guaranteed equal legal protection.
That proposal was challenged by women’s rights and civil rights groups, and the state Supreme Court agreed that the measure could not go forward. The challengers had argued that the measure, if approved and put into effect, was intended to and would ban abortion and would infringe on a woman’s constitutional right to decide whether and when to conceive because it would ban most forms of contraception and bar medical procedures, such as in vitro fertilization, to assist in contraception.
The state tribunal said “the issue of the constitutionality of the initiative petition is governed” by the Supreme Court’s Casey decision, so Question 761 could not go on the ballot. That was the same result that the state court had reached in 1992, when it was faced with a similar initiative measure. “The mandate of Casey,” it remarked, “is as binding on this Court today as it was twenty years ago.”
In seeking to take the dispute on to the Supreme Court, the supporters of the ballot measure raised three constitutional questions — two of which dealt with the right to put a measure before state’s citizens by the initiative process, and the right of a state to amend its own constitution. But the third question (actually raised first in the petition) is the one that could raise the abortion issue anew. That question asked whether the state court decision was wrong in concluding that a state could not constitutionally define “person” to include unborn fetuses.
Past Supreme Court decisions, the petition argued, frowned upon lower courts striking down laws — including anti-abortion laws — in response to challenges that such laws could never be enforced, under any circumstances. Those prior rulings, the document contended, were designed to forestall so-called “facial challenges” by making them much harder to succeed in court. What the Oklahoma court had done to Question 761, according to the petition, was to strike it down facially, before the change in the definition of “person” had ever gone into effect to see what its real-world effect would be. A court is not supposed to nullify all of a state’s laws — before they take effect — if that is not necessary, the petition said.
The Supreme Court, the petition added, “has repeatedly rejected facial invalidation of statutes that challengers claim might, in some instances, restrict abortion rights…The mere possibility that a portion of the law might, in a rare case, create a delay in seeking an abortion is plainly insufficient to invalidate the statute on its face.”
In addition to the abortion issue that looms in the case, the petition contended that there is a serious question — one that has produced a conflict among lower courts– on how courts should judge proposed ballot measures before they are actually put before the voters.
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