Oklahoma Supreme Court strikes down two state abortion bans

The Oklahoma Supreme Court on Wednesday struck down two state laws that ban most abortions because they require a “medical emergency” before a doctor could terminate a pregnancy to save a mother’s life.

In a 6-3 decision, the court said the laws violate the Oklahoma Constitution based on its ruling in March that the constitution provides an inherent right for a woman to terminate a pregnancy to save her own life and does not require the danger to be imminent.

The court has now struck down three strict abortion laws that went into effect after the U.S. Supreme Court reversed itself on abortion rights, striking down Roe v. Wade, from 1973, and Planned Parenthood v. Casey, from 1992. The U.S. Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization gave states the authority to make abortion laws, and Oklahoma approved some of the strictest in the nation.

More: After Okla. court struck down two abortion bans, one law remains. Here's what it says.

The statute left standing after Wednesday was the law approved in 1910, which states: “Every person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, shall be guilty of a felony punishable by imprisonment in the State Penitentiary for not less than two (2) years nor more than five (5) years.”

Both of the laws struck down Wednesday were passed by the Oklahoma Legislature in 2022 and signed by Gov. Kevin Stitt. Stemming from Senate Bill 1603 and House Bill 4327, both laws used civil lawsuits, rather than criminal prosecution, for enforcement. The laws were modeled after ones first approved in Texas, empowering residents to file lawsuits against anyone who might have helped a woman obtain an abortion.

The challenge to the laws was filed by Oklahoma Call for Reproductive Justice, the Tulsa Women’s Reproductive Clinic and other abortion rights groups. The suit named individual county court clerks who would be responsible for filing civil lawsuits to enforce the abortion laws.

The Oklahoma Supreme Court said Wednesday that the House bill used language on medical emergencies identical to that in the law struck down in March, while the Senate bill "provides even more extreme language" than that in the bill that was the subject of the March ruling.

The office of Oklahoma Attorney General Gentner Drummond said Wednesday, "“Despite the court’s decisions today on SB 1503 and HB 4327, Oklahoma’s 1910 law prohibiting abortion remains in place. Except for certain circumstances outlined in that statute, abortion is still unlawful in the State of Oklahoma.”

The Legislature did not take action after the court issued its first ruling in March on the inherent right to terminate a pregnancy when necessary to save a woman's life. It was not clear early Wednesday whether lawmakers would address the issue in a special session this year.

State Sen. Julie Daniels, R-Bartlesville, an author of the bills struck down on Wednesday, issued a blistering response, saying "a rogue Oklahoma Supreme Court, acting as self-appointed legislators, unleashed another attack on Oklahoma’s unborn children. The court also thumbed its nose at the Legislature and showed their contempt for the separation of powers."

Daniels said the Legislature had the opportunity to clarify the statutes this year and should now "strongly consider legislative intervention to avoid any more erosion to pro-life measures, or any other pieces of legislation that the Oklahoma Supreme Court doesn’t like."

House Speaker Charles McCall, R-Atoka, said Wednesday he was disappointed in the ruling, noting that both laws struck down had been supported by super majorities in both houses.

"However, Oklahomans can rest assured that House Republicans will continue to protect the lives of the unborn and pursue legislation that values all life," McCall said.

House Minority Leader Cyndi Munson, D-Oklahoma City, praised the decision, saying it would "keep health care decisions where they belong, between Oklahomans and their physicians. Oklahomans value their right to make their own decisions when it comes to health care for themselves and their families. House Democrats will continue to fight for the rights of all Oklahomans to live their lives free from government interference."

All three of the justices who dissented from the decision on Wednesday were appointed by Stitt: Chief Justice M. John Kane IV; Vice Chief Justice Dustin Rowe; and Justice Dana Kuehn. In dissenting opinions, the three expressed concerns that the new decision expanded the reach of the ruling in March, which was confined to the question of whether a woman had a constitutional right to terminate a pregnancy to save her own life. The dissenting justices did not elaborate on how the new ruling could be interpreted as expanding the right.

Justice Richard Darby, who dissented from the majority in March, cited the principle of stare decisis — the adherence to court precedent — in joining the majority on the new ruling, though he said he maintained his opposition to the first decision. Justices Yvonne Kauger, Noma Gurich, James Winchester, Douglas Combs and James Edmondson comprised the rest of the majority; of those, Winchester is the only one who was appointed by a Republican governor.

In its March ruling, the court said it would define the 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."

The court said, “Absolute certainty is not required, however, mere possibility or speculation is insufficient.”

Priya Desai, board member of Oklahoma Call for Reproductive Justice, said, “While it is disappointing that abortion care remains largely out of reach, the state Supreme Court’s decision today confirms that pregnant Oklahomans in life-threatening situations should get the care they need. Too many pregnant people in my state have been turned away from care despite facing grave threats to their health and lives. But the fight is not over. We will keep working towards a reality where abortion is available in our home communities once again.”

Stitt accused the court of "activism to create a right to an abortion in Oklahoma. This court has once more over-involved itself in the state's democratic process, and has interceded to undo legislation created by the will of the people."

This article originally appeared on Oklahoman: Oklahoma Supreme Court rules two abortion bans unconstitutional