Oklahoma Supreme Court justices deeply divided over constitutional abortion rights
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The Oklahoma Supreme Court was deeply divided over the abortion question, with the 5-4 majority ruling on Tuesday that the state constitution protects a woman’s right to have an abortion to save her own life. The majority opinion states that the court did not rule on elective abortions.
The majority opinion was accompanied by six separate concurring and dissenting opinions.
Here are excerpts from the various opinions:
Majority opinion (Justices Yvonne Kauger, James R. Winchester, James E. Edmondson, Douglas L. Combs and Noma Gurich)
“We hold that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life. 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.”
More:Oklahoma Supreme Court finds 'limited right' to abortion in state constitution
Concurring opinion by Kauger, joined by Edmondson and Combs
“For some women, the draconian law which allows no exception, in the absence of a medical emergency, to preserve the life of the mother, may be a death sentence. In some instances, women may have fewer rights than a convicted murderer on death row. These women may be subject to a death sentence without being afforded due process or any provision for clemency or pardon. Imagine that.”
Concurring opinion by Combs, joined by Edmondson
“The medical community in determining within a reasonable degree of medical certainty the steps to preserve and protect the life of the mother is not without boundaries. During the course of pregnancy, there exists a timeline of urgency. We must define the right to preserve the life of the mother to mean something more than waiting until she actually has a life threatening medical emergency before she is allowed to receive treatment to terminate a pregnancy.
“If not, the health care practitioner will continue to face the impossible dilemma of deciding how close to death the woman must be to provide medical care while fearing such actions are outside the confines of the law. How imminent must death be?”
More:Abortion remains a concern for faith-based anti-abortion centers in a post-Roe Oklahoma
Dissenting opinion by Chief Justice M. John Kane IV
“At the time of ratification, the Oklahoma Constitution was the most detailed state governing document in the United States. Oklahoma’s Constitution is still currently the third-most detailed Constitution in the nation, now containing almost 85,000 words. Had the framers chosen to classify abortion under any scenario as a fundamental Oklahoma right, rather than a felony, they certainly would have done so explicitly, not by implication.
“Our Constitution is a highly detailed enumeration of rights, not a broad, sweeping statement of concepts. Nowhere, broadly or specifically, is a right to abortion enumerated.”
Dissenting opinion by Vice Chief Justice Dustin Rowe
“(T)he majority has attempted to craft an abortion policy that will do little to assuage the strong and polarizing opinions so many Oklahomans passionately hold on this issue. And just as Roe (v. Wade) never resolved this issue on the federal level, today’s opinion will not resolve this issue within our state. In a Democracy, such as ours, this most divisive issue of our time can only — and should only — be resolved by the People.”
Dissenting opinion by Justice Richard Darby
“(I)t is inexplicable to me how the majority finds section 861 constitutional because ‘it allows for a termination of a pregnancy in order to preserve the life of the pregnant woman,’ but somehow asserts that it does not make a ‘ruling on whether an elective abortion is constitutional’ when elective abortions are prohibited under the same section.”
More:Oklahoma Senate committee advance two bills listing exceptions to state's abortion laws
Dissenting opinion by Justice Dana Kuehn, joined by Rowe
“Because the Oklahoma Constitution does not explicitly protect termination of pregnancy, the Legislature has the authority to regulate it, to ban it, and to criminalize its procurement. And the Legislature has done so, almost since statehood … Even if I agreed with the Majority that the Oklahoma Constitution provides a limited right to termination of pregnancy to preserve the life of the mother, I could not agree with the Majority’s attempt to define that phrase. Again, that task belongs to either the people or their legislative representatives.”
This article originally appeared on Oklahoman: Excerpts: Oklahoma Supreme Court justices' deep division over abortion
