The importance of legislative findings in writing abortion laws

Daniel McConchie Vice President of Government Affairs, Americans United for Life
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Oklahoma Governor Mary Fallin this week signed into law HB 2684, a bill to clarify Oklahoma’s chemical abortion law enacted in light of the Oklahoma Supreme Court’s opinions interpreting the law in Cline v. Oklahoma Coalition for Reproductive Justice.

The court’s strained interpretation of the law, which did not contain legislative findings, puts a spotlight on an often-ignored fact of state legislative life: without findings, a law is susceptible to being interpreted and construed in a manner inconsistent with the legislature’s intent when it was passed.

In 2011, Oklahoma enacted HB 1970 to regulate the distribution of chemical abortion drugs. As is typical in that state, the bill included no findings to outline the legislature’s intent when it was enacted. The Center for Reproductive Rights filed suit to block the new law, and in the case, Americans United for Life represented more than half of the members in each legislative chamber in an amicus brief explaining the reasons the legislators enacted the law.

Despite the overwhelming number of legislators affirming their intentions, the Center for Reproductive Rights argued that the court should disregard their statements because there were no findings contained in the law itself. The court agreed and used that as a reason to overturn the entire law. So the Oklahoma legislature is back with a new bill that includes a robust set of findings, in addition to minor clarifications of other language – a move that is likely to give the Oklahoma Supreme Court another chance to weigh in on the constitutionality of the law.

Those who focus primarily on federal policy matters are usually shocked to learn that most states don’t build a legislative history around a bill in any manner whatsoever. In federal legislation, findings, committee reports and transcripts of debate are all used to build a story around a bill to help discern congressional intent or clarify ambiguous statutory language.

Not so in the states. The standard in most states is the plain language of the law. This standard is born out of a desire for the law to “speak for itself” without the need for supporting documentation in order for it to be enforced or adjudicated.

This feeling is so strong in some places that efforts to include findings in bills are fiercely resisted; sometimes by leadership and sometimes by rank and file members. Indiana goes so far as to explicitly prohibit the use of recordings of committee hearings and floor debates to determine legislative intent.

There are other reasons for the resistance to include legislative findings in bills and laws. The Oklahoma Senate had a member who would use his bill’s preamble to essentially publish press releases. The chamber made an exception this year for HB 2684 because of the desire to address directly the court’s ruling in Cline.

And there’s often little support for legislative findings from state attorneys tasked with defending state laws. One state solicitor general told me, “If I’m defending the mere text of the statute, I can create whatever defense I deem most appropriate given the facts of the case and the judge I pull.”

But, as a result of increasing judicial activism, such opposition is waning. In addition to the Cline case, a federal judge in Idaho recently refused to allow the state to make arguments as to legislative intent that was not already enumerated in the law’s findings. Further, Oklahoma Attorney General Scott Pruitt has begun arguing publicly for an increase in the use of legislative findings as a bulwark against judicial activism. He has stated that it is his intention to win over other litigators and legislators to his cause.

Despite a long history of avoiding explicit statements as to legislative intent, the states are being nudged toward the place that Congress has been in for decades. And given the tendency of the courts toward judicial activism, it won’t come soon enough.

Daniel McConchie is Vice President of Government Affairs for Americans United for Life.