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Oklahoma: Pregnant Women are Suspects of a Future Crime for Conduct Outside the State

Feb. 17, 2022

The Oklahoma Legislature started its 2022 session with a slew of bills that might be characterized as anti-abortion bills. Eleven bills were filed before the legislative session even started and is therefore setting a tone that the abortion freedom rights are to be further attacked. The governor has promised already that he would sign any abortion restriction sent to him; even for bills which clearly go beyond what’s allowed by Roe v. Wade.

Normally, an evolving law from the bill, would immediately get bogged down in the court system. Yet the legal landscape has changed since women’s reproductive rights and their dominion and control of their own bodies could actually end and allow laws such as those in Oklahoma to become law given the looming U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, which could upend five decades of women’s rights.

Oklahoma seems to be filling its agenda with the aspiration that Roe v. Wade will be severely curtailed or even eliminated as a basis for a fundamental right for women’s protected reproductive rights. An Oklahoma Senator, has filed a bill that would track every woman who has an abortion. Under the Every Mother Matters Act, women will be required to register with pre-abortion services, which will attempt to dissuade them from having an abortion. The registered woman will complete a form for “an assessment of eligibility” and then the agency will advise them on things like housing, child care and job searches.

It appears that the women cannot use the “pre-abortion resource” anonymously, but on the hotline will have to provide their data and be given a “unique identifying case number” which will go on their medical files for seven years, creating a database of women who receive legal abortion care, even outside Oklahoma. Once again, this bill proposes a data base of women who are pregnant; as if to treat a woman as a prospective suspect of a crime for having a natural and legal condition of being pregnant and might decide to terminate.

According to the senator, “Many women facing unexpected pregnancies turn to abortion because they feel like they have no choice. We want to make sure they have an opportunity to connect with medical, financial and other resources that they may not know about. This legislation will do that as well as provide screening to identify those who’ve been victims of crime so that, with the woman’s consent, a report can be made to the appropriate law enforcement agency.” Yet, the use of the agency is not based on a “means test” for any of the alleged opportunities for services that it is supposed to provide; rather, it carves out the application to only those who re pregnant and creates a specialized subset.

Last year, Oklahoma passed a six-week abortion ban; a “trigger” ban if the high court rules against Roe v. Wade, a total ban and restrictions on medication abortion and other measures restricting reproductive rights ; although most of them have been blocked in lower courts. The 2022 pre-filed bills include two six-week abortion bans and a total ban with enforcement mechanisms similar to those in Texas, where deputized private citizens may sue to enforce the law. Other proposed measures give personhood status to fetuses, ban abortion at 30 days and add a constitutional amendment declaring Oklahoma does not protect the right to abortion.

Where will the effort to eliminate the women’s productive rights go from here? Could it be a revisit of the Dred Scott decision, which required that slaves be returned to their master in a state allowing slavery, even though they had entered the protection of a free state? While Dred Scott was much more comprehensive, it seems that the chipping away of women’s right is moving in a similar vector.

In Dred Scott v. Sandford, decided by the U.S. Supreme Court on March 6, 1857, declared that Black people, whether free or enslaved, could not be American citizens and were thus constitutionally unable to sue for citizenship in the federal courts. (The Dred Scott decision was eventually overturned by the 13th Amendment in 1865 and the 14th Amendment in 1868.) The leaving of a salve state and then entering a free state could not be a basis for questioning their status.

Dred Scott, the plaintiff in the case, was an enslaved man and his enslaver was John Emerson of Missouri. In 1843, Emerson took Scott from Missouri, a pro-slavery state, to the Louisiana Territory, where enslavement had been banned. When Emerson later brought him back to Missouri, Scott sued for his freedom in a Missouri court, claiming that his temporary residency in the “free” Louisiana territory had automatically made him a free man. In 1850, the state court ruled that Scott was a free man, but in 1852, the Missouri Supreme Court reversed the decision.

The case made its way to the United States Supreme Court, where Court announced its 7-2 decision against Dred Scott on March 6, 1857. In the Court’s majority opinion, Chief Justice Taney wrote that enslaved people “are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can, therefore, claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

In the Oklahoma legislation, which does have a strong chance of passing, the label of being “pregnant” requires a woman to register for having a mere natural condition of being with child and which is not illegal. The act of being pregnant is not illegal, but the surveillance of a legal condition is being inventoried and being done for a period of seven years; not much differently of blacks being inventoried as property. Leaving the state of Oklahoma for an abortion, then coming back afterward, would tend to allow a woman to then be followed or followed-up upon, to see if she is still pregnant after leaving a state where her status as having a less fettered right to have abortion access?

When a woman comes back, is she subject to a crime for what she did in another state? Will the Oklahoma legislature be prompted to further amend the legislation’s now instituted statute so as to allow such an application since the now no longer pregnant woman to return to a status associated with Oklahoma? Will the government or even regular citizens acting as a quasi-vigilante, now be able to maintain an action based on her returned status to Oklahoma and now not being pregnant; or, for leaving the state and changing her status? Is this an attempt to empower state-citizenship over being a citizen of the United States?

The evolution of the state legislating actions, whether Oklahoma or any other state, will continue to be a subject of review, in light of the current make-up of the Supreme Court and the rulings on pending cases and on others that may find their way to the Court in the future.