Oklahoma: Nest of crazies?
The Oklahoma legislature is an odd thing. Its latest effort is to ensure that judges in Oklahoma don’t suddenly begin applying Sharia law in the courts there. (I don’t think it’s a real problem, somehow, but this is Oklahoma we’re talking about.) That is still underway, but they have already passed a bundle of anti-abortion laws, some over the governor’s veto. Sherry Colb discusses one of these at FindLaw:
Earlier this year, the Oklahoma legislature passed several abortion measures, a number of which required overriding the Governor’s veto. One of the laws prevents a patient from suing her doctor for failing to reveal the presence of a fetal abnormality.
The structure of this law is different in kind from that of other abortion restrictions, and it accordingly calls for a separate analysis. I will here analyze how the Oklahoma law differs from garden-variety abortion restrictions and whether we ought therefore to view it in a different light.
How Most Abortion Restrictions Operate
Existing abortion restrictions generally make it more difficult for a pregnant woman who wants an abortion to get one in the time, place, and manner of her choosing. Waiting periods may require a woman who can ill-afford it to take several days off from work to visit a clinic repeatedly, before her provider may permissibly terminate her pregnancy. Mandatory ultrasounds and fetal-information lectures may cause emotional distress that many women would prefer to avoid. Gestational-stage deadlines (whether at viability or, as a Nebraska law that I discussed in another column provides, at several weeks prior to viability) prohibit abortion outright after a certain point, unless the woman can satisfy one of a narrow set of criteria, including a pregnancy that poses a threat to her life.
Method restrictions (e.g., the federal "Partial-Birth Abortion Ban Act," which the Supreme Court upheld in Gonzales v. Carhart and which I discussed in a different column) limit a provider’s flexibility in selecting the abortion procedure that best meets the needs of her patient. Measures of this sort may also deter providers from performing even permissible later-term abortions, because of the risk that a provider will inadvertently render herself subject to criminal prosecution.
Finally, parental-notification and parental-consent requirements compel some underage women who would rather keep the information private, to reveal their desire for an abortion to either a parent or a judge (or alternatively, as in all cases, to forgo the abortion).
These restrictions and others operate to make it more difficult and burdensome — physically, financially, and emotionally — for a woman to carry out a decision that she has made to have an abortion.
Oklahoma’s Law: Liability Preclusion for the Physician Who May Not Want to Reveal Fetal Abnormalities to Pregnant Patients
As I noted above, the new Oklahoma law takes an approach quite distinct from that of the various laws I just described. Specifically, precluding liability for a doctor who fails to reveal a fetal anomaly to her patient is different from the above restrictions in two ways — one more significant than the other.
The less significant way in which this law differs from the others is that — rather than either requiring a doctor or a pregnant woman to do something that she considers burdensome, or prohibiting a doctor or a pregnant woman from doing something that she considers desirable — this law protects a provider from being sued by a patient for violating what might otherwise have been a duty to provide material information to her patient.
Under the Oklahoma law, a doctor who wishes to tell her patient about a fetal anomaly may do so without penalty. The law simply gives the provider the additional option of withholding the information without legal consequence…
Continue reading. Don’t you just love laws that encourage doctors to mislead their patients?
