Oklahoma Supreme Court Enjoins State Laws Restricting Abortions Necessary to Protect Woman’s Life
- November 17, 2023
In a split decision issued November 14, the Oklahoma Supreme Court blocked enforcement of three state laws that it found likely were unconstitutional because they placed an undue burden on the right to terminate a pregnancy when necessary to preserve a woman’s life.
Reversing a trial court decision, the high court granted a temporary injunction during the pendency of the action on the merits.
A similarly divided high court in March struck down a state law that criminalized abortion without an adequate exception for protecting the life of the mother. In so holding, the high court found that, under the Oklahoma Constitution, “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.” Oklahoma Call for Reproductive Justice v. Drummond, No. 120543 (Okla. Mar. 21, 2023).
The laws at issue in the instant action require that a physician who performs an abortion be board-certified in obstetrics and gynecology; that a physician providing an abortion-inducing drug have nearby hospital admitting privileges; and that an ultrasound be performed at least 72 hours prior to providing an abortion-inducing drug.
According to the high court, the three laws were unlikely to survive strict scrutiny as they had the potential to delay or restrict access to abortion care already determined to be necessary to preserve a woman’s life.
“Any additional delay in access to the procedure once the necessity has been determined is clearly detrimental to the health of the patient and her constitutionally protected right to terminate the pregnancy to preserve her life,” the high court said.
Two of the statutes also include stringent reporting requirements as well as criminal and civil penalties for failure to comply with their provisions. “The chilling effect of these new laws is such that no physician would likely risk providing constitutionally protected care for fear of violating these statutes,” the high court said.
Four justices dissented from the decision.
Oklahoma Call for Reproductive Justice v. Drummond, No. 119918 (Okla. Nov. 14, 2023).