Oklahoma Law Banning Abortion Unlikely to Reach Supreme Court

The makeup of the court would likely not be in the state's favor if it did get there, experts say

Oklahoma Gov. Mary Fallin, left, shown here with Colorado Gov. John Hickenlooper, right, and Utah Gov. Gary Herbert last year, has five days to act on the abortion bill passed Thursday by the Oklahoma legislature. (Jim Watson/AFP/Getty Images file photo)

A bill passed on Thursday by the Oklahoma legislature that would make performing abortions a felony punishable by jail time would not likely lead to the overturning of Roe v. Wade, legal experts say.  

The bill  is now with Gov. Mary Fallin, who hasn't expressed an opinion on it and has five days to act.  

Proponents said it was passed with the intent of restricting abortion rights through the courts, and its sponsor hopes it will eventually be a means of overturning the landmark 1973 Supreme Court decision that made abortion legal.  

But experts think that's unlikely.  

"Clearly on the trial and court of appeals levels, the law would unlikely to be upheld," said Jonathan Turley, a professor of constitutional law at George Washington University.   

[The Unprecedented Action of One Anti-Abortion Group] Turley said the time and conditions have been set up for a bill like Oklahoma's to come up.

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"Sometimes you see laws of this kind, when the court is in flux," he said. "There's also more motivation to pass such laws during election periods."  

Louis Seidman, a professor of constitutional law at Georgetown University, said even if the bill were to come to the court, it is not likely justices would side with those opposed to abortion.  

"There's debate about abortion at the margins," Seidman said, "but there are not five votes to overturn Roe vs. Wade, " noting that Justice Antonin Scalia's death and the impasse over his replacement has left the court divided ideologically, 4-4.  

Turley said while it is possible that a Donald Trump presidency could lead to a judge who opposes abortion, an appointment from a Democratic president — if confirmed — would tip the balance toward those favoring abortion rights.  

Contact Garcia at EricGarcia@cqrollcall.com and follow him on Twitter @EricMGarcia. Get breaking news alerts and more from Roll Call on your iPhone or your Android.