Beyond Privacy

On Friday, an Oklahoma judge ruled against a state law that was poised to, among other things, force women obtaining an abortion to disclose a substantial amount of personal information that would be posted on a public Web site. The privacy violation was enough to enrage many pro-choice bloggers; Lynn Harris wrote on Salon's Broadsheet, "The requirement … would scare the shit out of me." But the law also sought to ban the use of the word abortion or related words in Oklahoma code and impose a ban on sex-selective abortion. The law's defeat is a victory for reproductive-rights activists in Oklahoma, of which there are few.

But perhaps what's interesting about Oklahoma is not the outcome of this particular case, but the way the case was argued. The Center for Reproductive Rights, which brought the suit, avoided the traditional argument that it was a violation of privacy. Instead, the CRR argued that the law was unconstitutional because it packed too much into one law. The Oklahoma Constitution includes what is called the single-subject rule, which says laws can't combine various things into one piece of legislation.

It's no accident that the CRR chose the single-subject rule as its chief (and only) argument. "It was a purely strategic decision. We felt that we had such a strong claim on the single-subject-rule grounds that we were going to try to knock the law down on those grounds," says Jennifer Mondino, lead attorney for the CRR on this case.

Last September, CRR used the single-subject rule argument effectively against another Oklahoma law that, among other things, would have required ultrasounds for women seeking an abortion. Ultimately, reproductive-rights activists might be discovering that it is these more "creative" arguments, which sidestep traditional privacy defenses, that are more effective in states where the odds are stacked against pro-choice sentiment.

"You might be able to say that as an organization we've been looking very seriously at bringing challenges under state courts and looking for claims we can bring under state constitutions," Mondino continues, "and that's largely because our federal courts -- and even our Supreme Court -- have been really hostile to claims on more traditional constitutional grounds on women's privacy rights and women's right to access abortion care. So that's probably part of a trend here in trying to think of more creative litigation strategies."

In states like Oklahoma, anti-choice sentiment is strong. When asked about what it's like to be a reproductive-rights activist in such a socially conservative state, Lora Jo Davis, one of the plaintiffs in the case, pauses and lets out a deep sigh. "In Oklahoma I do feel like I am in the minority and that it has" -- here Davis sighs again --"galvanized the population here in Oklahoma. … It's kind of a sad situation."

Davis noted that many Republican politicians take advantage of such anti-abortion sentiment. The champion of the law, state Sen. Todd Lamb, is running for lieutenant governor of Oklahoma this fall and has touted the anti-choice law as one of his accomplishments.

"I think that forced-pregnancy fanatics don't really care whether they get a bill passed. They just want the publicity," Davis says. Though Davis approaches her activism from a civil-rights perspective, she notes that the single-subject rule defense was necessary in this case. "We use whatever we have to to try and protect our rights and our privacy," she says.

Though CRR has been effectively using the single-subject rule in Oklahoma, such a rule is relatively unique among state constitutions. However, when combating anti-choice legislation, pro-choice groups across the country are turning to strategies that don't rest on the fundamental right to an abortion or come from traditional choice language, particularly in socially conservative states. Last year, when the North Dakota House passed a bill that would define life as beginning at fertilization, the regional Planned Parenthood office defeated the bill in the state Senate by emphasizing the side effects of the legislation, including limiting or eliminating access to birth control and in vitro fertilization.

A Utah bill that sought to ban all abortions except in the cases of rape, incest, and harm to the woman was delayed in the Legislature last month. The primary reason for the delay was estimates that the law would cost the state between $2 million and $7 million to defend in court.

Additionally, when a slew of state bans on partial-birth abortion passed after the 2007 Supreme Court decision upholding the federal law, many of the arguments against the state laws were that they failed to include proper exceptions for a woman's health. Of the 31 state partial-birth-abortion laws, only four include a health exception. In a statement released following the upholding of the ban on partial-birth abortion, NARAL said, "Time after time, anti-choice lawmakers vote down proposed health exceptions to abortion restrictions."

Overturning the Oklahoma law happened on more technical grounds, but its temporary efficacy might just be a stopgap measure. The state Senate's Health and Human Services Committee is already working on a separate bill to ban sex-selective abortion, one of the provisions in the recently overturned law.

According to Wanda Jo Stapleton, another plaintiff in the case against the Oklahoma law that was overturned on Friday and longtime Oklahoma pro-choice advocate, the introduction and passage of anti-choice legislation surged in 2005, when more socially conservative Republicans were elected to office in 2004. The recent Oklahoma law just caught national attention.

But while CRR may have chosen to focus on the single-subject rule in the recent Oklahoma cases, Mondino emphasizes that she thought their case would have been strong under other arguments. Alongside individual civil rights and liberties, pro-choice advocates have found some sympathy in making an economic argument as well. Oklahoma is one of the many states facing a financial crunch, and a costly legal battle to defend what Mondino calls "clearly unconstitutional" laws in a time when it is facing a deficit of more than $700 million is unpopular.

The stopgap measures have largely been effective for the time being, but they show reproductive-rights activists shifting to the defensive. Those that want to ensure access to reproductive rights in socially conservative states will be putting out fires in more and more creative ways unless there is a fundamental shift in attitude toward abortion or a recommitment to constitutional rights that includes access to abortion.

In Oklahoma, it might not be that far off. "The judge made some comments at the last hearing that even though he is such a strong supporter of the Oklahoma state Legislature, he's an even stronger supporter of the Oklahoma state Constitution," Mondino says.

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