The opinion drew the enthusiastic approval of the Tulsa World’s editorial staff, contending: “Our leaders didn’t fail us. Rather, they demonstrated they can behave as reasonable and resolute leaders should. They applied the law and made wise and just decisions. Oklahomans should feel gratified their leaders have shown such leadership even in the face of certain harsh repercussions.”
Whether or not the members of the Court will be retained in the next election remains to be seen.
However, far from “reasonable,” “wise,” or “just,” the Oklahoma Court’s decision to deny the people of Oklahoma their right to petition on behalf of the preborn, strike the proposal before it had been sent to the ballot for its approval or rejection, and prematurely substitute their judgment for that of the nation’s High Court, smacks of the kind of judicial activism that Conservatives have been warning against in the years since Roe v. Wade. The opinion is not only an explicit overreach, it also runs counter to the decisions of several state Supreme Courts and a 23-year-old U.S. Supreme Court precedent.
The Oklahoma Senate passed a similar measure by a vote of 34 to 8 in February. Imagine abortion supporters filing suit to halt the House committee hearing, and persuading the Court to rule the measure unconstitutional before it had been brought to a full vote on the floor. Democracy in Oklahoma would essentially be dead—replaced by what could only be described as judicial tyranny of the highest order.
But this scenario is what transpired in Oklahoma last week. The citizen initiative process is the constitutionally protected right of the people to act as the legislative body. The gathering of petition signatures is the garnering of co-sponsors. And the vote on the general election ballot is a vote by the legislative bodies.
At least one state Supreme Court agrees with the sentiment. Last year, the same actors who sued in Oklahoma brought suit in Mississippi, asking the state’s high court to block a personhood vote.
Justice Randy G. Pierce, writing for the majority, would have no part of it:
Essentially, Plaintiffs ask this Court to render judgment upon the substance of Intervenors’ initiative – its constitutionality – in advance of the election. …This Court is without power to interfere with pre-election proposals, because to do so may place the administration of government at the footstool of the judiciary.
This Court will exercise judicial restraint and follow the reasoning of the majority of courts throughout the United States, both federal and state, which: “have articulated a policy of deference toward direct legislation processes.” …We cannot invade the territory of the Legislature or the electorate to review the substantive validity of a proposed initiative, and thereby, we will honor the maxim embodied in the constitutional mandate of separation of powers.
If one is tempted to chalk up the Mississippi decision to the blood red composition of the southern state, consider the decisions of state courts of a more purple hue. Both in 2008 and again this year, the Colorado Supreme Court has denied challenges to personhood, swatting away attempts to interfere with the democratic process. In March, the Ohio Supreme Court dismissed, outright, a suit brought by a pro-abortion group.
Even in the liberal bastion that is Oregon, the Supreme Court would only rule on the sufficiency of a personhood measure’s ballot title and “reject[ed], without discussion, the remainder of petitioners’ arguments.”
It’s true, the Oklahoma Court is not beholden to the opinions rendered by their counterparts, and their decision can only serve as evidence of their radically liberal disposition.
However, the 1989 Webster v. Reproductive Health Services SCOTUS case took up a Missouri law in which the preamble found that “The life of each human being begins at conception” and that “unborn children have protectable interests in life, health, and well-being.” It also mandated state laws to be interpreted to provide preborn children with “all the rights, privileges, and immunities available to other persons, citizens, and residents of this state.”
The majority upheld the law. Further, Justice Antonin Scalia wrote “that it effectively would overrule Roe v. Wade. I think that should be done, but would do it more explicitly.”
Instead, the Oklahoma Court relied, exclusively, on 1992’s Planned Parenthood vs. Casey. Four Justices dissented in that case, with Justice Scalia writing: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Justice Clarence Thomas added in 2000’s Stenberg vs. Carhart: “[T]he Casey joint opinion was constructed by its authors out of whole cloth. The standard set forth in the Casey joint opinion has no historical or doctrinal pedigree. The standard is a product of its authors’ own philosophical views about abortion, and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, as illegitimate as the standard it purported to replace.”
In 2007, the most recent anti-abortion law to find its way to the Court was upheld by five justices thereby reversing the pro-abortion Stenberg decision.
There is not an honest soul in America who considers the abortion controversy “case closed.” The Oklahoma Court, in a brazen attempt to prevent a challenge to current abortion jurisprudence brought by the populace of an entire state, has erred by preventing the people from protecting human life in such practices as human cloning, experimental research on human embryos, and the destruction of human beings following reproductive assistance.
As much as the Oklahoma Court is under the impression that the SCOTUS would strike a total abortion ban, they are also aware that they are as likely to uphold a state constitutional amendment recognizing the most basic human rights of all human beings from the beginning of our lives. Fortunately for the advocates of the rights of all persons, we can now take our argument directly to the U.S. Supreme Court and ask them to follow Justice Scalia’s advice in the Casey dissent:
“We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”