Divided Oklahoma Supreme Court Recognizes Limited Right to Abortion to Protect Woman’s Life
- March 24, 2023
A divided Oklahoma Supreme Court struck down as unconstitutional one state statute that criminalized abortion but left another abortion ban in place because it included an exception for protecting the life of the mother.
One of the statutes at issue in the case is a 1910 law that went back into effect last summer when the Supreme Court overruled Roe v. Wade. The statute makes performing an abortion a felony punishable by imprisonment for up to five years but includes an exception where the procedure is “necessary to preserve” a woman’s life.
According to the high court, the statute demonstrates a “history and tradition” in the state of recognizing “a right to an abortion when it was necessary to preserve the life of the pregnant woman.”
The Oklahoma Constitution creates an "inherent right to life" as well as "liberty" and stands as the basis for protecting a pregnant woman's right to terminate a pregnancy to preserve her life, the high court said. The high court expressly refused, however, to rule on whether the state constitution provides a right to an elective abortion.
According to the high court, “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.” While “[a]bsolute certainty is not required,” the high court also added that “mere possibility or speculation is insufficient.”
The high court said restrictions on the inherent right to terminate a pregnancy to preserve a woman’s life are subject to strict scrutiny. Under that standard of review, a second state law enacted more recently that criminalizes abortions “except to save the life a pregnant woman in a medical emergency” didn’t pass muster under the state's constitution.
The high court interpreted this provision as requiring a woman “to be in actual and present danger” to obtain a medically necessary abortion. “We know of no other law that requires one to wait until there is an actual medical emergency in order to receive treatment when the harmful condition is known or probable to occur in the future. Requiring one to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest,” the high court said.
Four justices dissented from the per curiam decision.
Plaintiff health care providers and patient advocacy groups challenged the two Oklahoma statutes, which outlaw most abortions, arguing they violated women’s inherent and substantive due process rights under the Oklahoma Constitution.
“People’s lives have been endangered by Oklahoma’s cruel abortion bans, and now doctors will be able to help pregnant people whose lives they believe are at risk,” said Nancy Northup, President and CEO of the Center for Reproductive Rights, which represented the plaintiffs in the lawsuit. “We are disappointed that the Court declined to rule whether the state Constitution also protects the right to abortion outside of these circumstances,” Northup added.
In a statement, Oklahoma Governor Kevin Stitt expressed strong disagreement with the “activist majority’s opinion creating a right to an abortion in Oklahoma.” He also criticized the 20-page opinion for failing to include “any mention of the unborn.”
Oklahoma Call for Reproductive Justice v. Drummond, No. 120543 (Okla. Mar. 21, 2023).