Abortion Laws in Oklahoma Subject of Fractured Decision at State Supreme Court

Immediately after the U.S. Supreme Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization, many states saw litigation over their so-called trigger laws, which banned or severely restricted abortion conditional upon the overturning of Roe v. Wade. Other states faced lawsuits over their pre-Roe laws prohibiting abortion that had long been unenforced or enjoined. Some states, like Oklahoma, had both.

In Oklahoma Call for Reproductive Justice v. Drummond, which came on the heels of Dobbs, several Oklahoma abortion providers brought an original-jurisdiction action in the Oklahoma Supreme Court challenging both the state’s longstanding abortion prohibition, 21 O.S. 861, which traces back to 1890, and the new abortion prohibition, SB 612, which was scheduled to take effect in August 2022. Those two laws both prohibit performing an abortion throughout pregnancy, albeit with slightly different wording and penalties. Section 861 does not apply when an abortion “is necessary to preserve her [the mother’s] life,” while SB 612 does not apply when an abortion is necessary to “save the life of a pregnant woman in a medical emergency.”

The abortion providers contended that the laws “violate inherent rights and substantive due process rights guaranteed by sections 2 and 7 of article II of the Oklahoma Constitution.” Section 2 says that “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” Section 7 provides that “No person shall be deprived of life, liberty, or property, without due process of law.”

The abortion providers’ lawsuit asked the Oklahoma Supreme Court to strike down both laws and declare that the Oklahoma Constitution protects an inherent fundamental right to elective abortion throughout pregnancy.

Embracing an argument that neither side made, the court by a 5-4 vote held in a per curiam opinion that the “Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.” This ruling was based almost entirely on the 1890 statute’s “life” exception; the court reasoned that when the Oklahoma founders included this exception in the statute, they must have meant for it to be included in the Constitution implicitly. Therefore, the court did “not find Section 861 violates the Oklahoma Constitution,” because “it allows the termination of a pregnancy in order to preserve the life of the pregnant woman”—matching the scope of the inherent constitutional right the court was simultaneously establishing.

The court then held unconstitutional the trigger law, SB 612, concluding that its “life of a pregnant woman in a medical emergency” language is “much more invasive” and “much different” than Section 861’s “life” language. Because SB 612 requires an “actual and present danger,” the court reasoned, it invades the fundamental state constitutional right, and is subject to—and cannot survive—strict scrutiny.

A few aspects of the decision are particularly notable. First, despite its holding that Section 861 is constitutional, the per curiam opinion repeatedly stated that it was making “no ruling on whether the Oklahoma Constitution provides a right to an elective termination of a pregnancy.” The dissenters argued that this was a curious disclaimer since the pre-Roe law that the court upheld as constitutional completely prohibits elective abortion. Indeed, some of the concluding sentences in the per curiam opinion suggest a possible future conflict: “[W]e do not find Section 861 violates the Oklahoma Constitution as it allows the termination of a pregnancy in order to preserve the life of the pregnant woman. Again, we make no ruling on whether an elective abortion Is constitutional.”

Second, the court explained what the life exception means under the Oklahoma Constitution. But unusually, the court drafted its own explanation of the exception, without citations to statutes, the constitution, or the record. It said:

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.

Third, in finding that SB 612 fails the strict-scrutiny standard, the court never referenced unborn life or acknowledged any state interest in protecting the unborn—notwithstanding Dobbs’ holding that states’ “legitimate interests include respect for and preservation of prenatal life at all stages of development.” The state had extensively briefed its interest in protecting unborn life, but the majority did not mention the interest in its constitutional analysis.

Justice Yvonne Kauger, joined by Justices James Edmondson and Douglas Combs, concurred with the court’s per curiam opinion, but wrote separately “to address the incongruity of [SB 612].” Justice Kauger expanded on the court’s historical analysis, arguing that “[t]he right to preserve the life of the mother is deeply rooted in Oklahoma law.” She concluded that, because of SB 612, “a woman in Oklahoma has been stripped of . . . the right to terminate a pregnancy to preserve her life without exception” because it narrowed that right to situations of “medical emergency.”

Justice Combs, joined by Justice Edmonson, wrote an additional concurrence “to express [his] opinion on the scope of the provisions of Article II, Section 2 of the Oklahoma Constitution,” which in his view, provides “a substantive right to life, liberty, and the pursuit of happiness rather than a procedural right.” Justice Combs’s opinion criticized the majority for not discussing “the viability of the fetus.” He then clarified that “the State of Oklahoma has a legitimate interest in protecting the life of a viable unborn fetus,” and that after viability, “the protections of life, liberty and pursuit of happiness must attach to that life as well” as the mother.

Chief Justice M. John Kane dissented from the judgment of the court. He accused the majority of “engag[ing] in legal contortions to protect pregnant women who are in medical peril by fashioning Oklahoma Constitutional precepts of abortion law that simply do not exist.” He then argued that “[t]here is no expressed or implied right to abortion enshrined in the Oklahoma Constitution.”

Vice Chief Justice Dustin Rowe wrote a separate dissent, criticizing the majority for “further mudd[ying] the waters as to the rights of Oklahomans and our State’s abortion policy.” He opined that “this most divisive issue of our time can only—and should only—be resolved by the People.”

Justice Richard Darby also wrote a lengthy dissent, which included an extensive discussion of the Oklahoma Constitution, which he believes requires only rational basis review, and an in-depth criticism of the majority’s analysis for “incorrectly stat[ing] the standard of review” and “fail[ing] to discuss any interest of the State.” Like Vice Chief Justice Rowe, Justice Darby expressed confusion concerning “the Court’s numerous declarations that it is not ruling on elective abortion, when in fact it is.”

Finally, Justice Dana Kuehn, joined by Vice Chief Justice Rowe, wrote a separate dissent criticizing the majority for not exercising judicial restraint. She explained that “[t]he Oklahoma Constitution does not include a right to abortion” and that “it is [not] the Court’s place” to read such a right into the Constitution when “the people, or their elected representatives” have not done so.

If this case portends anything for other state supreme courts grappling with similar challenges to abortion laws—and there are several—it may indicate the difficulties for courts evaluating facial constitutional claims through a lens focused on medical evidence about standard of care. Many state legislatures have (both pre- and post-Dobbs) crafted life-of-the-mother exceptions similar to Oklahoma’s, and many plaintiff abortion providers are challenging where those lines are drawn and inviting courts to scrutinize, redraw, or remove the lines.