Over the past few weeks, the New York State Assembly cheered at the passage of legislation allowing the killing of thousands of unborn babies, and the Virginia governor coldly discussed how once an unwanted baby is born he or she would be “kept comfortable” while waiting to die.  Here in Oklahoma the Department of Health reported 4,723 abortions were performed in the year 2017.  Thomas Jefferson once stated, “I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.”  Any society that does not recognize that life, especially the innocent life of a child, is sacred will be judged both by history and by the Almighty who began creating each one of us in his own image in the womb.  So why hasn’t the Oklahoma state legislature and other pro-life state legislatures banned the practice of abortion in its entirety? 

The Creation of the Right to an Abortion

It was 46 years ago in the infamous Supreme Court case Roe v Wade the court ruled that under the Due Process Clause of the 14th Amendment the right to privacy extended to abortion. This decision brought us the legal precedent that prohibited many state and federal restrictions on abortion.  This creation of a previously unrecognized right to abortion has left states struggling as to how to protect their unborn, but rights were never meant to be created by the courts. The judicial system was never intended to have a significant effect on policy, only on individual cases and controversies. The court’s effect on policy is left for legislators and executives to decide.  Alexander Hamilton described the federal judiciary as the “least dangerous branch” of government in Federalist 78 because the court has no power to enforce its rulings.  As Pulitzer Prize-winning constitutional historian Charles Warren once noted, “however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court.”  Nowhere in the Constitution will one find a right to an abortion.

Abraham Lincoln’s Rejection of a Supreme Court Ruling

Abraham Lincoln boldly stated in his first inaugural address that if citizens were to be tied to the “evil” consequences of the Supreme Court ruling in the Dred Scott case then “the people will have ceased to be their own rulers.” Lincoln defied the Supreme Court decision which stated that African-Americans could not be citizens.  Lincoln understood as the Declaration of Independence laid out that the right to “life, liberty, and the pursuit of happiness” were not given by the government, but were “endowed by our Creator” and that no court ruling could take away American’s right to liberty.  Lincoln recognized the same danger that Thomas Jefferson described in a letter to Charles Jarvis “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”  Judge Bill Pryor of the U.S. Court of the Appeals for the Eleventh Circuit once stated that Roe surely gives Dred Scott stiff competition for the title of “the worst abomination in the history of constitutional law.” Just as Lincoln rejected a court ruling to protect the unalienable right to liberty, Oklahomans should reject a court ruling in order to protect the unalienable right to life for our children.

Abortion in Oklahoma

There is no federal law prohibiting a state from banning the practice of abortion, only court rulings masquerading as settled law. The late Supreme Court Justice Antonin Scalia made the following warning in his Obergefell v. Hodges dissent, “With each decision of ours that takes from the People a question properly left to them -- with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court -- we move one step closer to being reminded of our impotence.”  The Oklahoma Legislature has the opportunity with Senate Bill 13 “The Abolition of Abortion in Oklahoma Act” to protect the innocent.

While Oklahoma has received top ratings in the Americans United for Life’s annual legislative report card for over a decade its “anti-abortion laws’’ still allowed between 4,706 to 7,088 abortions each year from 2006-2015.  Any law that simply regulates abortion instead of outright banning it simply isn’t good enough.  Senate Bill 13 would “provide to unborn children the equal protection of the laws of this state” ensuring that ALL life in Oklahoma will be protected. The bill also specifies that a child is created the moment of fertilization when sperm and the egg combine.  The bill goes on to state “Any federal statute, regulation, executive order or court decision which purports to supersede, stay or overrule this act is in violation of the Constitution of the State of Oklahoma and the Constitution of the United States of America and is therefore void.”  This takes direct aim at the unconstitutional right to an abortion found in the Roe v Wade decision.  

Currently, Senate Bill 13 has four co-authors in the Oklahoma Senate. The primary author Joseph Silk has written a letter to President Trump requesting a meeting with him and his attorney general, William Barr, to “discuss the response from the Federal Government along with other matters when the State of Oklahoma abolishes and criminalizes the act of abortion.”  President Trump who recently said in his State of the Union address “Let us work together to build a culture that cherishes innocent life. And let us reaffirm a fundamental truth:  all children -- born and unborn -- are made in the holy image of God” would surely support the state of Oklahoma in its effort to eliminate abortion.

It is time for Oklahoma to lead the charge against abortion and against the overreach of the courts. The question of when life begins is a question properly left to the people, and it is time for the people of Oklahoma to make clear that all innocent life will be protected in their state.

Ryan Walters teaches history and government courses in McAlester, Oklahoma.  He can be reached by email at ryanwalters37@gmail.com or on Twitter.