“The federal courts don’t have the authority to make us kill babies,” according to Oklahoma Republican Party Chairman Randy Brogdon. “Are the Supreme Court justices going to come down to Oklahoma and make us stop?”
Brogdon, a former state senator who once called for Oklahoma to form its own militia separate from that National Guard — and who previously cast doubt upon the Pledge of Allegiance because he objects to the line “one nation, indivisible” — offered his interpretation of the Supreme Court’s lawful authority on Friday. One day earlier, he signed a fundraising email making a similar pitch. “As Chairman of the Oklahoma Republican Party, I call on the Governor and legislators to completely end the practice of abortion in Oklahoma,” Brogdon wrote in that email, adding that the state should “[s]hut Planned Parenthood down immediately for their illegal actions, and prosecute the abortion doctors who violate their oath to ‘do no harm.'”
The party chairman’s call to simply ignore court decisions protecting reproductive choice seeks to escalate many of his fellow Republicans’ attacks on legal abortion. Other states, however, have already gone so far in restricting abortion that it’s not clear that Brogdon’s proposal is as much of an escalation as it immediately appears to be.
Mississippi, for example, passed a law that, if upheld by the Supreme Court, will close the state’s last abortion clinic. A similar Texas law seeks to shut down many of the clinics in that state by imposing expensive obligations on clinics and difficult-to-obtain credentialing requirements on doctors who perform abortions. North Dakota enacted a law that could effectively ban abortion six weeks into pregnancy (a federal appeals court recently struck that law down, albeit reluctantly).
These laws, especially the Mississippi and Texas ones, place a premium on the cleverness of abortion’s opponents. These two states passed what amount to sham health laws — laws that appear, on the surface, to be intended to protect women’s health but which actually do little more than limit access to abortion. As one federal judge explained, “there is no rational relationship between improved patient outcomes” and the additional burden the Texas law places on abortion doctors.
Brogdon’s preferred tactic, by contrast, appears to be attacking abortion with a blunt object. He’s not looking for a clever workaround to what remains of Roe v. Wade, he just wants to outright ban abortion and prosecute doctors who perform it.
In the process, Brogdon also appears willing to openly defy court orders protecting reproductive freedom. It would be a major escalation in tactics if a state chose to openly defy the courts. It could also lead to a potentially dangerous struggle between the states and the federal government.
If Oklahoma were to “prosecute the abortion doctors,” as Brogdon suggests, the first question would be whether Oklahoma’s state courts would be willing to go along with this tactic — and whether a jury would be willing to convict based on a law that would almost certainly be struck down by federal courts. Assuming that the state courts did play along, the lawfulness of this conviction would ultimately be decided by the Supreme Court — or, barring that, by a lower federal court upon a petition for a writ of habeas corpus.
The events that would follow, if Oklahoma refused to obey a federal court order commanding them to release the incarcerated physician, could resemble a miniature Civil War. The doctor would remain physically in the state’s custody, most likely in a state prison guarded by state employees. Yet, while Brogdon is correct that the Supreme Court justices themselves wouldn’t “come down to Oklahoma and make us stop,” the federal government is fully capable of mustering superior force against a state that openly defies a court order. Just ask former Arkansas Gov. Orval Faubus.
Nevertheless, such a standoff may be acceptable to Brogdon, with his doubts that the United States is, indeed, “one nation, indivisible.”