This is a board devoted to fighting ignorance.
Plenty of people made comments in this thread that suggested they believed the courts would overturn this law.
Oakminister (and I) are aware that there is very little chance of that happening, based on the lack of solid constitutional ground upon which to challenge it.
You appear to believe we should… what? Ignore those comments? Agree with them?
Just FYI, from CNN:
Not going anywhere soon.
If this were the intent, there’d be no reason to mention abortion in the law. And the language wouldn’t allow malpractice sheilds for speculative beliefs on the part of a physician regarding a patient’s future actions.
Sure, no problem. I’ve already stated that I think the current law is internally inconsistent, since it both requires physicians to describe the fetus in medical detail and says that they’re not required to disclose medical information about the fetus. And any proposition which is internally inconsistent is also inconsistent with all other propositions. Including those of Unified Field Theory, of course.
Just scanned the thread and I haven’t seen these comments that you feel have been made. Most of this thread has actually been a meta-debate about why Oakminster feels legal opinions are more relevant in the discussion than moral ones.
If these comments were actually in existence, I’d have no problems with you arguing against them, especially if the main objection being presented by these posters was that the law is legally unsound, not just ethically indefensible. The problem is, no one is saying this. Elvis comes the closest to making an argument about the right to privacy. Someone else questioned how these laws serve the state’s interest, but that is far from claiming that the laws are unconstitutional. The vast majority of talk about legality and the Courts in this thread has come from the two conservative lawyers posting here. Not posters who are against the law for the most mind-numbingly obvious reasons.
You don’t have to ignore anything.
But, if I understood your earlier answer correctly, if the court has to imagine it, that can fulfill one of the requirements to Rational Basis With A Bite to kick in, can’t it?
Getting “suspect class” to apply is still a pretty high bar, though, I suppose.
Wait, wait, let’s go back.
It’s my understanding that these were two different laws. Damnit, I’m going to go read the links in the OP again. Don’t move the discussion forward until I get back, okay?
In response to an earlier poster’s iteration of this same claim, I posted four or five examples of legal arguments.
Good. There are, and so I will take you at your word.
Especially since the Court in Casey let stand an informed consent law.
Do you agree with the legal basis for Woe vs. Wade? That was a pretty tough case to make all things considered, and yet it was done. Why do you think Oklahoma’s laws couldn’t be destroyed the same way?
The law allows a patient’s medical care is to be dependent on a doctor’s speculative beliefs regarding whether or not the patient will engage in a perfectly legal activity should medically important information be disclosed to them.
This perfectly legal activity is of no concern to the doctor and it’s definitely of no concern to the state. This is why such activity is perfectly legal.
Ergo, henceforth, whatever, whatever, it could be argued that this particular law violates a woman’s right to privacy because the state is getting in between her and her power to control her own body.
Essentially, the same basis for Woe v Wade.
Why does this argument not work?
I’m going to report this post shortly after I make it. I’m posting what appears to be the full text of the malpractice shield law, Oklahoma House Bill 2656, found here. I think the ultrasound bill is HB 2780, available on the same page. Note that the text must be downloaded as an RTF file, and I’m not sure what an RTF file is, but I was able to open it with Open Office software. I’m pretty sure it is ok to post the full text of an enrolled bill, but if the mods disagree, it won’t be here long.
*ENROLLED HOUSE
BILL NO. 2656 By: Sullivan, Reynolds, Faught, Duncan, Kern and Terrill of the House
and
Crain, Jolley, Schulz, Justice, Coffee, Newberry, Brogdon, Sykes, Halligan, Myers, Brown, Aldridge, Reynolds, Barrington, Ford, Johnson (Mike), Garrison, Russell, Stanislawski, Coates, Lamb, Bingman and Marlatt of the Senate
An Act relating to public health and safety; stating legislative intent; defining terms; prohibiting recovery of damages in certain circumstances for wrongful birth and wrongful life actions; excepting specific circumstances; repealing Section 14, Chapter 36, O.S.L. 2008 (63 O.S. Supp. 2009, Section 1-741.11), which prohibits the recovery of damages in certain circumstances for wrongful birth and wrongful life actions; providing for codification; and declaring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 3. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 1-741.12 of Title 63, unless there is created a duplication in numbering, reads as follows:
A. It is the intent of the Legislature that the birth of a child does not constitute a legally recognizable injury and that it is contrary to public policy to award damages because of the birth of a child or for the rearing of that child.
B. For the purposes of this section:
“Abortion” means the term as is defined in Section 1-730 of Title 63 of the Oklahoma Statutes;
“Wrongful life action” means a cause of action that is brought by or on behalf of a child, which seeks economic or noneconomic damages for the child because of a condition of the child that existed at the time of the child’s birth, and which is based on a claim that a person’s act or omission contributed to the mother’s not having obtained an abortion; and
“Wrongful birth action” means a cause of action that is brought by a parent or other person who is legally required to provide for the support of a child, which seeks economic or noneconomic damages because of a condition of the child that existed at the time of the child’s birth, and which is based on a claim that a person’s act or omission contributed to the mother’s not having obtained an abortion.
C. In a wrongful life action or a wrongful birth action, no damages may be recovered for any condition that existed at the time of a child’s birth if the claim is that the defendant’s act or omission contributed to the mother’s not having obtained an abortion.
D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred, or handicap, disease, or disability of an individual prior to birth would have been prevented, cured, or ameliorated in a manner that preserved the health and life of the affected individual.
SECTION 3. REPEALER Section 14, Chapter 36, O.S.L. 2008 (63 O.S. Supp. 2009, Section 1-741.11), is hereby repealed.
SECTION 3. It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.
Passed the House of Representatives the <23rd> day of <February>, 2010.
Presiding Officer of the House of
Representatives
Passed the Senate the 19th day of April, 2010.
Presiding Officer of the Senate*
I think it fails because the law does not prevent a woman from having an abortion. It prevents her from recovering damages on a claim that she would have had an abortion if fully informed.
Section D of the law is particularly interesting, in that as I read it, damages are still recoverable if plaintiff can show that the child’s health would have been improved had medical treatments other than abortion been used prior to or during birth.
States are generally allowed to determine which tort claims will be allowed in their jurisdiction.
Also, let me be the first to observe that the declaration of an emergency seems batshit insane…but I think the State is allowed to do it.
If a woman goes to a doctor and says, “Doc, please do a genetic test to determine if my fetus has Townes-Brocks Sydrome. If it has the gene for it, I plan to terminate.”
If the test results come back positive for Townes-Brocks, and the doctor deliberately withholds this information to the patient, the doctor has indeed prevented the patient from exercising her right to an abortion. It would be no different than if someone at a polling station passed out phony ballots to registered Republicans.
Not sure I’m following you, Bricker. What I’ve got my teeth in is the bill that effectively excuses a physician from being required to enable his patient to exercise informed consent.
In that vein, and because I’m getting a little nonplussed about so many people appearing to conflate the two bills into one for the purposes of this discussion, I’ve done a little research.
First, yes, it is two different bills. I called the reporter who wrote the article, and he was kind enough to look through his notes and find me the bill numbers.
The ultrasound-with-description bill is HB 2780.
The malpractice shield bill is HB 2656.
It took me quite a while, but I finally found the text of the bill. It appears that it does not protect a doctor whose failure to provide the information results in the birth of a child with a disability that could have been treated prenatally.
I’m not sure if I can link directly to the text. If you go here, and click on “Search text of Measures,” you will find yourself on a page that lets you put the bill number in a field named “Search All Measures from 2009-10 Session.” Enter your bill number in the field and click “Go.” For HB 2656, the first hit is called hb2656 hflr.rtf. Clicking on that link opens a document in Microsoft Word Viewer (at least on the computer I’m posting from right now).
You know what? I’m going to take a chance that posting this entire document doesn’t violate our rules on copyright. So here goes:
Mods, if I’m mistaken, and this does break a rule, I’ll humby submit to your correction.
Everyone else, if the mods do take down the text above, at least I’ve given you a road map to find it on your own.
I’ve got to go do some laundry now, and pack for my flight home, so I’ll be gone for a bit.
Dammit, Oakminster! 
I suspect that it might also be routine. No real reason for the suspicion, so don’t anybody challenge me on it, please.
No, he has not. I assume you don’t wish to have a discussion about “State Action” as such is merely more inconvenient legalese.
However, there is nothing in that law to prevent the woman from choosing to abort without the Townes-Brocks test. There is nothing in that law to prevent the woman from seeing another doctor. There is nothing in that law to prevent a woman from continually getting pregnant and having abortions because it amuses her to do so. There is nothing in that law* that says she can’t have an abortion for any reason she likes, or for no reason at all.
*I think Oklahoma has also passed, and the Governor has signed, a bill that would make it illegal to have an abortion because of the gender of the fetus. I do not have a cite handy, as I was looking for the text I posted above, but I think I saw something that mentioned it.
Continuing under the assumption that it is ok under our rules to post the full text of these laws, here’s HB 2780:
*ENROLLED HOUSE
BILL NO. 2780 By: Billy, Ritze, Reynolds, Sullivan, Ownbey, Wright (Harold), Tibbs, Cooksey, Kern, Thompson, Derby, Faught and Jones of the House
and
Sykes, Marlatt, Schulz, Brogdon, Newberry, Brown, Reynolds, Barrington, Crain, Stanislawski, Lamb, Coffee, Justice and Ford of the Senate
<StartFT>An Act relating to abortion; defining terms; requiring performance of an ultrasound and explanation of the ultrasound prior to a pregnant woman having an abortion; providing for aversion of eyes from ultrasound; excepting compliance with requirement in a medical emergency; providing for certification; requiring retention of records; providing penalty for false certification; providing for damages; authorizing injunctive relief; specifying persons who may bring action for noncompliance with act; providing penalty; providing penalties for noncompliance with injunction; authorizing private right of action; providing for revocation of license or certificate; repealing Section 6, Chapter 200, O.S.L. 2005, as last amended by Section 11, Chapter 36, O.S.L. 2008, Section 12, Chapter 36, O.S.L. 2008, as amended by Section 1, Chapter 173, O.S.L. 2008 and Section 13, Chapter 36, O.S.L. 2008 (63 O.S. Supp. 2009, Sections 1-738.1, 1-738.3b and 1-738.3c), which relate to requiring an ultrasound be performed prior to a pregnant woman having an abortion; providing for codification; providing for severability; and declaring an emergency. <EndFT>
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 6. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section <1-738.1A> of Title <63>, unless there is created a duplication in numbering, reads as follows:
As used in this section and Sections 1-738.2 through 1-738.5 of Title 63 of the Oklahoma Statutes:
“Abortion” means the term as defined in Section 1-730 of Title 63 of the Oklahoma Statutes;
“Attempt to perform an abortion” means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in this state in violation of this act;
“Board” means the State Board of Medical Licensure and Supervision;
“Certified technician” means a Registered Diagnostic Medical Sonographer who is certified in obstetrics and gynecology by the American Registry for Diagnostic Medical Sonography (ARDMS), or a nurse midwife or Advance Practice Nurse Practitioner in obstetrics with certification in obstetrical ultrasonography;
“Medical emergency” means the existence of any physical condition, not including any emotional, psychological, or mental condition, which a reasonably prudent physician, with knowledge of the case and treatment possibilities with respect to the medical conditions involved, would determine necessitates the immediate abortion of the pregnancy of the female to avert her death or to avert substantial and irreversible impairment of a major bodily function arising from continued pregnancy;
“Physician” means a person licensed to practice medicine in this state pursuant to Sections 495 and 633 of Title 59 of the Oklahoma Statutes;
“Probable gestational age of the unborn child” means what, in the judgment of the physician, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed;
“Stable Internet website” means a website that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the State Board of Medical Licensure and Supervision;
“Unborn child” means the term as is defined in Section 1-730 of Title 63 of the Oklahoma Statutes; and
“Woman” means a female human being whether or not she has reached the age of majority.
SECTION 6. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 1-738.3d of Title 63, unless there is created a duplication in numbering, reads as follows:
A. Any abortion provider who knowingly performs any abortion shall comply with the requirements of this section.
B. In order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced, and prior to the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform or induce the abortion, or the certified technician working in conjunction with the physician, shall:
Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;
Provide a simultaneous explanation of what the ultrasound is depicting;
Display the ultrasound images so that the pregnant woman may view them;
Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable; and
Obtain a written certification from the woman, prior to the abortion, that the requirements of this subsection have been complied with; and
Retain a copy of the written certification prescribed by paragraph 5 of this subsection. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven (7) years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven (7) years or for five (5) years after the minor reaches the age of majority, whichever is greater.
C. Nothing in this section shall be construed to prevent a pregnant woman from averting her eyes from the ultrasound images required to be provided to and reviewed with her. Neither the physician nor the pregnant woman shall be subject to any penalty if she refuses to look at the presented ultrasound images.
D. Upon a determination by an abortion provider that a medical emergency, as defined in Section 1 of this act, exists with respect to a pregnant woman, subsection B of this section shall not apply and the provider shall certify in writing the specific medical conditions that constitute the emergency. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven (7) years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven (7) years or for five (5) years after the minor reaches the age of majority, whichever is greater.
E. An abortion provider who willfully falsifies a certification under subsection D of this section shall be subject to all penalties provided for under Section 3 of this act.
SECTION 6. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 1-738.3e of Title 63, unless there is created a duplication in numbering, reads as follows:
A. An abortion provider who knowingly violates a provision of Section 2 of this act shall be liable for damages as provided in this section and may be enjoined from such acts in accordance with this section in an appropriate court.
B. A cause of action for injunctive relief against any person who has knowingly violated a provision of Section 2 of this act may be maintained by the woman upon whom an abortion was performed or attempted to be performed in violation of this act; any person who is the spouse, parent, sibling or guardian of, or a current or former licensed health care provider of, the female upon whom an abortion has been performed or attempted to be performed in violation of this act; by a district attorney with appropriate jurisdiction; or by the Attorney General. The injunction shall prevent the abortion provider from performing further abortions in violation of this act in the State of Oklahoma.
C. Any person who knowingly violates the terms of an injunction issued in accordance with this section shall be subject to civil contempt, and shall be fined Ten Thousand Dollars ($10,000.00) for the first violation, Fifty Thousand Dollars ($50,000.00) for the second violation, One Hundred Thousand Dollars ($100,000.00) for the third violation, and for each succeeding violation an amount in excess of One Hundred Thousand Dollars ($100,000.00) that is sufficient to deter future violations. The fines shall be the exclusive penalties for such contempt. Each performance or attempted performance of an abortion in violation of the terms of an injunction is a separate violation. These fines shall be cumulative. No fine shall be assessed against the woman on whom an abortion is performed or attempted.
D. A pregnant woman upon whom an abortion has been performed in violation of Section 2 of this act, or the parent or legal guardian of the woman if she is an unemancipated minor, as defined in Section 1-740.1 of Title 63 of the Oklahoma Statutes, may commence a civil action against the abortion provider for any knowing or reckless violation of this act for actual and punitive damages.
E. An abortion provider who performed an abortion in violation of Section 2 of this act shall be considered to have engaged in unprofessional conduct for which the provider’s certificate or license to provide health care services in this state may be suspended or revoked by the State Board of Medical Licensure and Supervision or the State Board of Osteopathic Examiners.
SECTION 6. REPEALER Section 6, Chapter 200, O.S.L. 2005, as last amended by Section 11, Chapter 36, O.S.L. 2008, Section 12, Chapter 36, O.S.L. 2008, as amended by Section 1, Chapter 173, O.S.L. 2008 and Section 13, Chapter 36, O.S.L. 2008 (63 O.S. Supp. 2009, Sections 1-738.1, 1-738.3b and 1-738.3c)<><><><><>, are hereby repealed.
SECTION 6. The provisions of this act are severable and if any part or provision shall be held void the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this act.
SECTION 6. It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.
Passed the House of Representatives the <2nd> day of <March>, 2010.
Presiding Officer of the House of
Representatives
Passed the Senate the 19th day of April, 2010.
Presiding Officer of the Senate*
Wow. That’s a doozy. Particularly section 6(B), which appears to be a stunningly broad grant of standing to seek injunctive relief under the law.
Apparently, the Center for Reproductive Rights has already filed a challenge to the ultrasound law. I’m trying to find a link to the pleadings…if anyone finds them, please post the link.