Does the Oklahoma Constitution protect abortion rights? Providers say yes

With the federal right to abortion struck down last month by the U.S. Supreme Court, the Oklahoma Supreme Court may now determine whether the state constitution provides a fundamental right to terminate a pregnancy.

Abortion providers are asking the Oklahoma court to block enforcement of current laws against abortion and one set to go into effect next month, arguing that the state constitution contains a broad protection for individual liberty. The Oklahoma attorney general’s office countered on Tuesday that the state constitution allows for laws criminalizing abortion and that such laws date back almost to statehood.

Abortion had been effectively outlawed in Oklahoma even before the U.S. Supreme Court on June 24 reversed the 1973 decision in Roe v. Wade and the 1992 decision in Planned Parenthood v Casey. Gov. Kevin Stitt signed a ban in May that uses civil lawsuits by private citizens as the enforcement mechanism.

The day the U.S. Supreme Court struck down the Roe and Casey decisions, a "trigger law" made effective a 1910 Oklahoma statute that makes it a felony, punishable from two to five years in prison, to provide an abortion or help procure an abortion. A state law that goes into effect on Aug. 27 would raise the potential penalties to 10 years and a fine of $100,000; that law makes an exception only “to save the life of a pregnant woman in a medical emergency.” It would not penalize the mother.

In a petition to the Oklahoma Supreme Court, abortion providers led by the Oklahoma Call for Reproductive Justice say, “The revival of the 1910 Ban and the enactment of the 2022 Ban are the products of a decades-long mission to force pregnant Oklahomans to give birth against their will and to make Petitioners (abortion providers) into criminals for providing and supporting essential health care.

More:Stitt launches task force aimed at supporting families through pregnancies in post-Roe era

“Now that Roe and Casey have been overturned, the question for this court in this case, and other cases challenging the overlapping abortion bans enacted by the Legislature, is whether the broad protection for individual liberty in the Oklahoma Constitution bars the state from running roughshod over the choices of Oklahomans who are pregnant. It does.”

In a response filed Tuesday, Oklahoma Attorney General John O’Connor’s office said, “Simply put, there is no fundamental right in the Oklahoma Constitution to kill a whole, separate, unique, and living human being in the womb. Oklahoma’s longstanding criminal law protecting the unborn is rational, as is the similar law set to take effect in August … Through their elected representatives, Oklahomans have spoken with one voice throughout the history of our State: Abortion, our citizens clearly believe, should be illegal.”

Stitt carries through on vow to appoint anti-abortion justices

With his third appointment last year, Stitt gave the Oklahoma Supreme Court for the first time a majority of justices appointed by Republican governors. Stitt vowed to appoint anti-abortion justices to the nine-member court.

The governor’s first appointment, of M. John Kane IV,  came after Stitt received correspondence from a longtime anti-abortion activist and a Catholic bishop stating that Kane was “pro-life.”

Stitt’s second appointment was Dustin Rowe, who had stated his anti-abortion views when he ran for Congress in 2012. The abortion views of his third appointment, Dana Lynn Kuehn, were not public. Appointments to the court are not subject to confirmation by the Legislature.

The issue of whether the Oklahoma Constitution guarantees a right to abortion has been raised previously with the Oklahoma Supreme Court.

In 2019, in a challenge to a state law restricting the use of dismemberment abortion, a Tulsa clinic argued that the Oklahoma Constitution’s protections for abortion were even stronger than those in the U.S. Constitution and that a 1980 decision by the Oklahoma Supreme Court had affirmed a woman’s right “to make her own decisions regarding her own health, including about whether to continue or end a pregnancy.”

Abortion providers suing the state over more recent laws have asked the state Supreme Court to include that challenge in the current case.

Abortion providers: Right to terminate pregnancy an 'inherent right'

In their latest petition, providers say the right to terminate a pregnancy is protected in the constitution’s guarantee of an “inherent right” to “liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

“When a person is forced to remain pregnant or give birth against her will, she is subjected to a violation of her most inherent rights,” the petition states.

The state attorney general’s office argued Tuesday that abortion providers were making the same arguments that were “dismantled” by the U.S. Supreme Court last month in striking down abortion precedents.

Abortion was illegal in various Native American nations and in Indian Territory before statehood and was made illegal in Oklahoma soon after statehood, the attorney general said in the brief.

“There is an enormous logical leap between saying that Oklahoma’s founders intended Oklahomans to have robust and inalienable individual liberties — even stronger than Americans more broadly — and declaring that these liberties somehow include a fundamental right to kill an unborn human being, especially when those same framers were perfectly comfortable with criminalizing abortion to protect the unborn.”

It is not known when the Oklahoma Supreme Court will rule.

The U.S. House is expected to consider two abortion bills this week, one that would attempt to put abortion rights into federal law and another that would prevent states with laws against abortion from punishing women who go to another state for an abortion.

This article originally appeared on Oklahoman: Providers say the Oklahoma constitution protect abortion rights