The Oklahoma Supreme Court upheld part of the state’s ban on most abortions from the time of fertilization, ruling that the state Constitution protects only a “limited right to terminate a pregnancy” in the case of saving the mother’s life.
The state Supreme Court, in a 5-4 ruling, held on Tuesday “the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”
The decision continued:
We would define this inherent right to mean: a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman’s physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy. Absolute certainty is not required, however, mere possibility or speculation is insufficient.
“We make no ruling on whether the Oklahoma Constitution provides a right to an elective termination of a pregnancy, i.e., one made outside of preserving the life of the pregnant woman as we have defined herein,” the Oklahoma Supreme Court also stated.
The original legislation, however, provided an exception to the ban in the case of a “medical emergency” – not “life of the mother.”
“Requiring one to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest,” the ruling states.
The state Supreme Court said the state law uses both the words “preserve” and “save” the mother’s life in making exception to the abortion prohibition.
“The language ‘except to save the life of a pregnant woman in a medical emergency’ is much different from ‘preserve her life,’” the Court asserted.
Abortion providers noted this distinction by the state Supreme Court but did not see the ruling as a big win.
“People’s lives have been endangered by Oklahoma’s cruel abortion bans, and now doctors will be able to help pregnant people whose lives they believe are at risk,” Nancy Northup, CEO of the Center for Reproductive Rights, said in a statement. “We are disappointed that the Court declined to rule whether the state Constitution also protects the right to abortion outside of these circumstances.”
“People’s lives have been endangered by Oklahoma’s cruel abortion bans, and now doctors will be able to help pregnant people whose lives they believe are at risk,” said Nancy Northup, Center CEO.
Learn more about today’s decision in #Oklahoma:https://t.co/uTuWRRcMoA
— Center for Reproductive Rights (@ReproRights) March 21, 2023
“This ruling leaves out too many Oklahomans,” Dr. Alan Braid, an abortion provider and plaintiff in the case, also said, according to Fox News. “Oklahomans shouldn’t have to travel across state lines just to reach an abortion clinic, and it is heartbreaking that many will not be able to do so.”
“Today’s decision is a small step in what will be a long journey to restore real, meaningful rights of Oklahomans over their own bodies,” Planned Parenthood of the Great Plains tweeted. “Oklahomans deserve better, and we will not stop until they have the access they deserve.”
Today’s decision is a small step in what will be a long journey to restore real, meaningful rights of Oklahomans over their own bodies. Oklahomans deserve better, and we will not stop until they have the access they deserve. https://t.co/8CM6MRoTGb
— Planned Parenthood (@PPGreatPlains) March 21, 2023
Oklahoma Governor Kevin Stitt (R) criticized the state Supreme Court’s ruling:
I wholeheartedly disagree with this activist majority’s opinion creating a right to an abortion in Oklahoma. Alarmingly, this activist majority acted out of hand by making a policy decision that belongs to the people. Chief Justice Kane said it best in his well-written dissent: “This Court should adhere to the Constitution given to us, not craft what we believe to be a ‘better’ Constitution. The power lies with the people.'”
“Furthermore, in their 20 page opinion, not once was there any mention of the unborn,” Stitt asserted. “From the moment life begins at conception, we have a responsibility to do everything we can to protect that baby’s life and the life of the mother. That is what I believe and that is what the majority of Oklahomans believe which is why the Legislature has passed, and I have signed, numerous laws banning abortion in Oklahoma.”
I wholeheartedly disagree with the activist majority's opinion in the Oklahoma Supreme Court today creating a right to an abortion in Oklahoma.
My full statement here: https://t.co/2a5pi8zmdM
— Governor Kevin Stitt (@GovStitt) March 21, 2023
In May 2022, Stitt signed into law the bill that banned nearly all abortions in the state and allowed private citizens to sue anyone who “aids or abets” a woman seeking an abortion.
The law passed the Oklahoma House, 73-16, and the Senate, 35-10.
HB4327 prohibited abortions in Oklahoma unless it is “necessary to save the life of a pregnant woman in a medical emergency,” or the pregnancy “is the result of rape, sexual assault, or incest that has been reported to law enforcement.”
I promised Oklahomans that as governor I would sign every piece of pro-life legislation that came across my desk and I am proud to keep that promise. (1/3) pic.twitter.com/vQJdwkDJZN
— Governor Kevin Stitt (@GovStitt) May 26, 2022
The new law was modeled after the Texas Heartbeat Act (SB 8) and provided its enforcement is “exclusively through the private civil actions” of citizens.
In its review of the ruling in Oklahoma Call for Reproductive Justice, et. al v. John O’Connor, in his official capacity as Oklahoma Attorney General, Liberty Counsel, which filed an amicus brief with the state Supreme Court “emphasizing the racist and eugenic history of the abortion movement and the fact that abortion is largely a minority epidemic,” noted the Court also states in its decision “that any restrictions on such a right must survive strict scrutiny under the Oklahoma Constitution. The Justices declined to answer the question whether the state constitution protects the right to an elective abortion.”
Liberty Counsel observed the Oklahoma Supreme Court “upheld one of the statutes, 21 O.S. 2021, §861, because it does not restrict a right to terminate a pregnancy based on the life of the mother.”
“It said the other statute, 21 O.S. 2022, §1-731.4, was unconstitutionally void and unenforceable because it did not pass strict scrutiny,” the nonprofit Christian legal firm added in its analysis of the ruling.
“We commend Oklahoma for being proactive in defending the lives of precious unborn children,” said Mat Staver, Liberty Counsel chairman in a statement.
“In light of the historic win overturning the Roe v. Wade and Planned Parenthood v. Casey abortion decisions last year at the U. S. Supreme Court, we must now protect life in all states against ongoing court activity from abortion providers,” Staver added. “We must make the womb a safe place once again.”
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Susan Berry, PhD, is national education editor at The Star News Network. Email tips to [email protected]
Photo “Oklahoma Judicial Center” by Brent Moore. CC BY-NC 2.0.
