In their bid to undo Roe v. Wade, anti-choice activists are in a race to see which of their abortion-restrictions can find its way to the Roberts Court first. So far two distinct avenues to get Supreme Court review have emerged, the push to recognize fertilized eggs as persons under the law, and and 20-week “fetal pain” bans. And while “personhood” initiatives are designed by their nature to challenge Roe directly, it is the fetal pain bans that are most likely to undo the decision altogether.
To understand why personhood won’t likely doom Roe but fetal pain bans will we have to look at not just the language of these two abortion restrictions, but the legal strategy afoot in their passage. Take the most recent legal battle over fertilized eggs-as-people in Oklahoma.
Last spring Personhood Oklahoma circulated a proposed ballot initiative that would have amended the state constitution to define a person as “any human being from the beginning of biological development” which as the state attorney general explained, meant fertilization. The matter was immediately challenged by the ACLU and Center for Reproductive Rights. The state Supreme Court, in a unanimous opinion, declared the initiative “void on its face” because it directly contradicted precedent from Roe, through Planned Parenthood v. Casey and beyond and was therefore, in the court’s words, “constitutionally repugnant.”
Now, while the Oklahoma personhood initiative obviously conflicts with federal law recognizing a woman’s fundamental right to privacy (which includes a right to chose abortion), neither the ballot initiative process nor the ruling from the Oklahoma Supreme Court that blocked it addressed any issues of federal law. This point was made by Ryan Kiesel of the ACLU of Oklahoma in an interview with RH Reality Check:
“This case never presented any federal issues for the U.S. Supreme Court to consider,” Kiesel said. “For the Supreme Court to have intervened it would have to hold that the Oklahoma Supreme Court’s interpretation of Roe and Casey was so flawed that they could jump in.”
Kiesel explained. “States have reserved to them right to afford their state citizens the opportunity to hold a referendum or initiative on their own, and the federal courts have said that states have lots of leeway in running that process. For example, states can limit the ballot or initiative process to measures related only to revenue and taxation. In Oklahoma we have a restriction on the initiative process that prevents it from being used as a weapon to create a test case. Which is exactly what was being done here.”