Let’s Sue Big Polluters Under Oklahoma’s Wacko Abortion Law

·6 min read
Photo Illustration by Elizabeth Brockway/The Daily Beast
Photo Illustration by Elizabeth Brockway/The Daily Beast

I always had an inkling that conservative lawmakers have no idea how female anatomy works. But it wasn’t until this year that they passed laws that made it clear that not only do they have no idea how it works, they believe that it is a magical process that they can shape using their imaginations.

There’s no other explanation for the smattering of insane laws attempting to redefine what is actually, medically true about human reproduction, from laws that suggest it’s possible to remove an ectopic pregnancy and implant it, somehow, back into the uterus (not physically possible, also stupid) to laws that attempt to define “pregnancy” as something that starts at the moment an egg and sperm meet.

In Oklahoma, lawmakers recently passed HB4327, a law banning all “abortions” from the moment of “fertilization.” I’m putting all of these words in quotes because the way that Oklahoma lawmakers use these words is not in line with the way that doctors use these words.

Arkansas Guv Shies Away From Extreme Abortion Ban He Signed

It feels tedious that I have to explain how idiotic this is. I’m not a medical doctor. I’m simply a person who paid attention during middle-school science, and, later, needed to know this stuff in order to keep track of my own body. Abortion, by its medical definition, is anything that ends a pregnancy. Pregnancy, by medical definition, is what happens when a fertilized egg implants into the uterine lining (or, as in the case of an ectopic pregnancy, somewhere outside of the uterus). Therefore, “abortion from the moment of fertilization” is an asinine phrase.

Fertilization is not the beginning of a pregnancy; it predates it. First, sperm is introduced into the female reproductive system. If the sperm is introduced around the time that the woman ovulates, it’s possible that a sperm would meet her egg and fertilize said egg. The egg then becomes a blastocyst that makes its way toward the uterus over the course of 5-7 days. If it makes it to the uterus, it may implant into the uterine wall, and it may not. If it does, after a few more days, enough human chorionic gonadotropin (hCG) is produced by the presence of the pregnancy to register on the most sensitive pregnancy tests. In other words, there is a period of anywhere from 6-11 days post-fertilization where a female body contains a fertilized egg but is not yet “pregnant.” Her body doesn’t even know it contains a fertilized egg. It is medically impossible to know whether or not the body contains a fertilized egg.

Sperm does not determine the beginning of a pregnancy. Implantation does. The most sensitive pregnancy-detecting test available anywhere cannot tell a person that they have a fertilized egg inside of their body until it has implanted into the uterus and has been in that state for days. But under HB4327, any person with a uterus who had a sexual encounter with anybody who produces sperm might be Oklahoma Pregnant between the day she ovulates to the day she has her period. Anybody who has the capacity to become pregnant is pregnant until proven otherwise.

Further, HB4327 deputizes any old blastocyst cowboy to file suit against anybody who “aids or abets” an “abortion” that happens post-fertilization, like Texas’ similarly kooky law that the Supreme Court allowed to go into effect last year. Ordinary citizens are empowered to sue entities that they believe performed abortion.

This is where I believe environmentalists have an opportunity (to use a technical term) to fuck with Oklahoma.

The Oklahoma law defines abortion as “the act of using, prescribing, administering, procuring, or selling of any instrument, medicine, drug, or any other substance, device, or means with the purpose to terminate the pregnancy of a woman, with knowledge that the termination by any of those means will with reasonable likelihood cause the death of an unborn child.”

One of the more heartless aspects of laws like Oklahoma’s is that they will inevitably subject women who have suffered miscarriages to added scrutiny. Miscarriages are incredibly common; an estimated one in five known pregnancies ends in a miscarriage; the number is likely much higher for pregnancies that end before the mother had any idea she was pregnant. By the new definition of “pregnancy,” any blastocyst that doesn’t make it to the uterine wall constitutes the “death” of an “unborn” infant.

Women who suffer miscarriages or infertility are heaped with guilt and shame about their culpability. But the truth is that there are well-established links between environmental factors and an elevated risk of miscarriage and infertility. Many of those environmental factors are completely outside of the mother’s control. The law does not say that the abortion must have been performed with the knowledge or consent of the mother. The law focuses instead on the act of the individual or individuals that cause the demise of a blastocyst or the end of a pregnancy.

So here’s my modest proposal: If Oklahoma lawmakers want to open up anybody who endangers the fate of a blastocyst to the threat of lawsuit, does that mean that any old deputized person can file suit against polluters who knowingly introduce chemicals into the environment that endanger pregnancies or fertility? Can a person who has suffered recurrent miscarriages in Oklahoma sue companies that introduce chemicals into the environment with a known link to miscarriages? Can we look at, say, areas around manufacturing plants where chronic infertility is higher than the general population, conclude that the polluters are to blame, and file suit? I think we should.

Chemicals used in fracking, for example, are associated with an elevated risk of miscarriage in the population near where the practice occurs. If Oklahoma conservatives are truly concerned with the fate of blastocysts and embryos, they should care deeply about sheltering fertile women from these harmful chemicals. Should concerned citizens file suit against frackers for knowingly causing miscarriages? I say yes.

American Women’s Lives and Dreams Are in Brett Kavanaugh’s Hands Now

Research has also linked air pollution to an increase in miscarriage and stillbirth. Is it time for newly deputized private citizens from all over the country to file suit against Oklahoma’s biggest air polluters? Absolutely. Lawmakers are doing fuck-all to reduce air pollution.

Contaminated drinking water, too, has a known link to miscarriage and stillbirth. If “pro-life” lawmakers are serious about protecting the unborn, they should embrace a flurry of lawsuits against companies that contaminate drinking water for Oklahoma women.

If Oklahoma lawmakers are not open to lawsuits against polluters, then they’re not standing up for the continuation of pregnancy, they’re standing up for a reduction in agency for women. That old joke about conservatives only caring about babies until they’re born doesn’t even apply here; if conservatives are not preventing all of the possible ways that a pregnancy could end—including environmental factors—then they are not concerned with the preservation of unborn life; they are primarily concerned with the elimination of choice for women.

It’s an unsettling time to be an American with female reproductive organs. Prior to 2022, I had an inkling that most men in positions of power not only had no idea how human reproduction works, but at their core carried a deep contempt for women. Now, I know that this country is absolutely rotten with people like that.

Why not use their own laws against them? Why not use laws designed to “protect” babies to actually go after entities that are responsible for ending wanted pregnancies? If America’s on the highway to hell, let’s at least have a singalong on the bus.

Read more at The Daily Beast.

Get the Daily Beast's biggest scoops and scandals delivered right to your inbox. Sign up now.

Stay informed and gain unlimited access to the Daily Beast's unmatched reporting. Subscribe now.