Can you face charges after an abortion? What the AG's memo on Oklahoma abortion laws means
Oklahoma’s attorney general issued a memo to all law enforcement agencies and prosecutors in the state this week, urging them to pursue criminal charges for anyone involved in providing an abortion outside of medical emergencies.
Oklahoma has enacted several new abortion laws in the last several months and revived one from 1910 after the U.S. Supreme Court overturned Roe v. Wade. Together, they allow for civil and criminal penalties against abortion providers. Attorney General John O’Connor’s memo Wednesday focused only on the criminal statutes.
Abortion in OklahomaAG's office, state boards craft guidance for doctors, law enforcement
Here’s what we learned from the new guidance, and where abortion bans stand now in Oklahoma:
1. Oklahoma laws don’t allow person receiving abortion to be punished
Oklahoma’s laws focus on punishment for people who perform or help perform abortions.
They do not allow for someone seeking or obtaining an abortion to be prosecuted or punished, the attorney general’s memo says.
2. AG wants to prosecute 'elective' abortions in Oklahoma, including the abortion pill
The attorney general’s memo called on Oklahoma law enforcement agencies to pursue criminal charges for “any person who intentionally performs, attempts to perform, or assists with the performance of "elective” abortions in Oklahoma.
That goes for both procedural abortions, which would be done in a medical setting, or medication abortion, which involve taking a series of pills and can be done at home.
“In short, law enforcement should focus on ensuring that abortion-on-demand has ended in Oklahoma,” the memo reads. “And information available at present indicates that it has indeed ended.”
3. Oklahoma's abortion laws don't apply to birth control, IVF
Oklahoma’s abortion laws don’t apply to treatment for miscarriages or ectopic pregnancies, a life-threatening condition that happens when a fertilized egg grows outside the uterus, according to the attorney general’s office.
The laws also don’t prohibit the use of birth control, including emergency contraception like Plan B, fertility treatments or in vitro fertilization (IVF), the office confirmed.
4. Medical emergencies are the only legal exception to Oklahoma's abortion laws
Abortions are only legal under one circumstance in Oklahoma: in order to save the life of a pregnant patient in a medical emergency.
One of Oklahoma’s civil abortion statutes, House Bill 4327, did allow for abortions in cases of rape or incest. But the state's other laws, including both criminal statutes, make no such exception.
5. Advocating in favor of abortions is free speech
Those who "aid or abet" someone in obtaining an illegal abortion could also be subject to prosecution. But merely advocating in favor of abortion wouldn't fall under that definition because of constitutional free speech rights, according to the attorney general's office.
"District attorneys and law enforcement should entirely refrain from investigating or prosecuting persons engaging in general advocacy of in favor of abortion," the attorney general's memo said.
Oklahoma’s abortion laws, summarized
Here’s a quick summary of some of the most recently enacted abortion laws in Oklahoma.
Civil statutes
Senate Bill 1503: This law, which took effect May 3, banned abortions after roughly the six-week mark of pregnancy, except in cases of medical emergencies. The law halted most abortions in the state. It copied Texas’ Senate Bill 8, which went into effect in 2021 and allowed private citizens to sue abortion providers or those who “aid and abet” abortions.
House Bill 4327: This law went into effect May 25 and essentially banned all abortions past the point of fertilization, except in cases of medical emergencies. It allows people to sue anyone, including a doctor, who helps a woman obtain an abortion at any point in her pregnancy.
Successful plaintiffs could be awarded at least $10,000 in damages. It’s almost identical to SB 1503, but bans abortions at any point during pregnancy, not just after six weeks.
HB 4327 has an exception for cases of rape and incest, but Oklahoma’s other laws do not.
Criminal statutes
Section 861, Title 21: This is a law that dates back to 1910 that makes abortion a crime, punishable by two to five years in prison. It has remained on the books but wasn’t enforced for nearly 50 years while Roe v. Wade was the law of the land. When the U.S. Supreme Court overturned Roe v. Wade in June, Oklahoma began reenforcing this law.
Senate Bill 612: This law, which went into effect in August, also classifies performing an abortion as a felony, punishable by up to 10 years in prison or $100,000 in fines. It didn’t replace the 1910 law — both are in effect — but the state attorney general’s memo says it “would generally be the better vehicle for prosecution, given its recency and stronger penalties.” The person receiving an abortion couldn’t be prosecuted or punished under either law.
This article originally appeared on Oklahoman: Oklahoma abortion laws explained: 5 highlights from new guidance
