Oklahoma, Where the Wind Blows from the State House
On Tuesday, Oklahoma passed a bill that would make it illegal to perform an abortion in the Sooner state except in medical emergencies, with penalties up to $100,000 in fines and 10 years in prison. The law has passed both houses of the state legislature and is headed to the Governor’s desk, and the Gov says he supports it.
Oklahoma has become a destination for Texas women seeking abortions since September, 2021 when Texas banned abortions after six weeks of pregnancy and passed the much-discussed law allowing private citizens to sue doctors and clinics who violate the law.
The measure passed by the Oklahoma Legislature on Tuesday states, “a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.”
Wait. What? Hold on a minute. This is obviously unconstitutional. What is the state of Toby Keith thinking? Abortion is protected, and even if that protection appears to be eroding, no one seriously thinks that all right to abortion will be erased. Right?
The Supreme Court is due to rule by the end of June on the Mississippi law that gives the liberal-dreaded and right-beloved new conservative majority of Justices a chance to undermine the Roe v. Wade viability standard (states can only restrict abortion after viability). During arguments in the case, the conservative justices signaled a willingness to curtail abortion rights, but the wholesale removal of all federal rights protecting abortion is as likely as Toby Keith playing Lilith Fair.
This law is a waste of everyone’s time, and a from-the-right example of pandering for votes. I’m sure the Oklahoma legislature has better things to do than pass laws that have almost zero chance of ever being valid. This law is legislative hot air, not matter if you like it or not.
No Such Thing as The Perfect Plaintiff
Also on Tuesday, big day for legal news, the Fifth Circuit Court of Appeal appeared likely to revive a lawsuit challenging the University of Texas at Austin’s race-conscious admissions policies by a group whose case over similar practices at Harvard University is now before the U.S. Supreme Court.
A three-judge panel of the Court of appeared very, very receptive to arguments that Students For Fair Admissions (SFFA) was not barred from suing UT after the U.S. Supreme Court ruled in the school’s favor in another case challenging its admissions policies in 2016.
SFFA was founded and funded by this guy Edward Blum. He is a rich guy who apparently hates affirmative action. He helped fund and pick just the right student (Abigail Fisher) to sue UT in a previous case that he and the student lost at the Supreme Court in 2016. (For an interesting show on how special interest groups find the perfect person to use in these kinds of lawsuits, see the episode “The Perfect Plaintiff,” of the Podcast “More Perfect”).
One of the issues the Fifth Circuit is reviewing is whether Blum’s role in the cases should affect the Court’s decision. Abigail Fisher too — she sits on the Board of Directors of SFFA. The lower court thought so and part of its dismissal of the current case was based on Blum and Fisher’s role in both cases.
The Fifth Circuit’s oral argument conversation appeared to find the origins of the case immaterial, recognizing the long history of activists on both sides of politics finding and funding these “test cases.”
Did you know that Rosa Parks was a secretary at the local NAACP office and hand-picked by Alabama civil rights leaders to be the publicized face of bus-segregation lawsuits? It’s true, and Claudette Colvin was regarded as the first person to challenge the stupid bus laws, but she was not a “perfect plaintiff” because she was 15 years old and pregnant.
But I digress, back to UT affirmative action. The lawsuit alleges that UT improperly considers race in admissions and discriminates against white applicants in violation of the U.S. Constitution and the Civil Rights Act of 1964. The Supreme Court in January agreed to hear two similar SFFA against Harvard and the University of North Carolina giving the court a chance to end admissions policies based on race factors.
The Fifth Circuit is nowhere close to reaching the actual issue, the whole debate right now is whether Blum and Fisher, this time through SFFA, are barred from suing UT again for the same thing that Fisher, as an individual, already sued and lost on the first time.
Mitchell Driskell has been an Oxford lawyer for twenty-one years. He practices criminal law, family law, business transactions and civil litigation. Email him mdriskell@danielcoker.com. Follow him on Instagram @mdriskell, twitter @MODIIItweets, TikTok @DriskellLaw and on Facebook.
