Diary

In defense of Oklahoma Governor Mary Fallin

Full disclosure on my part, the stance I take on abortion is that I believe it should only be legal in a case where the mother’s life is in danger.  I arrive at said stance not from a particularly religious view, but from more of a legal standpoint, which essentially boils down to a case of self defense.  My intent is not to argue my position, so I won’t go into the argumentative details of how I arrive there.  I simply state my view so that it’s clear that the spirit of the bill that was vetoed by Governor Fallin is nearly congruent with what I believe the law should be.  I am also not a resident of the state of Oklahoma and have no proverbial horses in the states political races, nor any particular like or dislike of  Governor Fallin.

The fundamental problem in drafting laws that would prohibit abortion in all cases except when the mothers life is threatened, is that while the spirit of such a law is simple, the perfect wording that defines that spirit without unintended damage or loophole is difficult.   The relevant text is fairly easy to find as it is underlined at the following link.

The final bill as it was vetoed:

There are several sections where abortion and an exception for the life of the mother appear throughout the bill.  I am not a lawyer, and while the rules of statutory interpretation at times become subjective and fluid, the content of this bill in most cases is not terribly obtuse.

Section 1  defines what is considered “unprofessional conduct” to include performing an abortion when the life of the mother is not in danger.  It also stipulates that this exception can not be invoked if the danger to the mothers life is based on a diagnosis that points to actions the mother is likely to take.  In other words for purposes of determining a threat to a mothers life, concerns that she may terminate her own life are not not considered valid.    This section is curiously silent on the mental state of the mother where as the next section (Section 2) specifically addresses the clinical or adjudicated mental state of the mother.

Section 2 defines actions upon which the state can revoke or refuse to issue a licence.  As I noted this section with similar language to the first does make an additional addendum regarding the mother having been determined either legally or clinically to suffer from incompetency or insanity.  Perhaps I am miss reading it but after carefully going over it multiple times it appears to invalidate a claim to the threat of the mothers life if that threat is based in a diagnosis of her possible actions AND the woman in question has been legally or clinically determined to be insane or incompetent.  This would seem to indicate that a presumably sane woman who is threatening to take her own life would be a justifiable case where an abortion could be performed on the grounds that the mothers life was at risk, however a woman who was insane could not be taken seriously.

In my profession AND has a very binary meaning, however in legal interpretations sometimes AND can be interpreted to mean something non binary,  or possibly even “OR” if it results in a consistent reading and interpretation.   Apparent inconsistency, or lack of clarity in law is what gives lawyers the spring board to argue against the spirit of a law.  All other considerations aside, this particular aspect of the law makes it a poor “test case” from a legal stand point if the intent is to bring a challenge to existing abortion precedence and challenge Roe V Wade.

The bill never mentions the specifics on how the validity of the claim that the mothers life was indeed in danger is determined or reviewed.  Doubtless that there would be disingenuous attempts to justify an abortion on the grounds of a danger to the life of the mother, and the bill was obviously drafted with attention to this.  The bill is geared so well to prevent disingenuous claims that it ignores to it’s peril valid ones.   What worries me more is that the fear of losing ones medical licence may prevent a doctor from performing an abortion where the mothers life was indeed in danger and she did not wish to risk it, even when the doctor might otherwise do so in good faith.    While the text and spirit of the law at face value seeks to create an abortion exception for the danger of the life of the mother, in it’s other facets it makes that claim from the doctors perspective so fraught with peril to become nearly unworkable.

Again I agree completely with the supposed spirit of the bill, but the actual situation it creates is a coercive complete ban of all abortions even those where the mothers life is indeed really in danger,  because the validity of such a claim is so subjective.  It need not be filled with detailed medical wording, but should at least establish a base line of criteria that need to be considered in the validity review.  Who reviews the decision and by what measure?  If it’s 90 percent likely the mother would die in child birth is that enough or must there be a certain 100 percent chance?   What if it’s only 51 percent probability?  Will the doctor who, in a given year, performs the most “life saving abortions” come under special scrutiny and review(as excepting a tie there will always be one at the top)?  While it is important that legislation of this nature have provisions to prevent disingenuous claims, it must also seek to protect physicians who operate in good faith, and it does not do so.

I have no doubt that the Oklahoma legislature’s intent was to create a ban on all abortions where the mother’s life was not medically threatened, but in drafting the legislation a poor outcome resulted.  Given that the goal was likely a challenge that went all the way to SCOTUS, the legal drafting needs to be bullet proof and I don’t believe it is.  In short this is not the test case you are looking for, and I’m glad the governor vetoed it.  Hopefully this will result in the legislature fixing the problems and sending her a revised, better bill, one which she will sign.