The headline blared “Oklahoma Supreme Court Rules Abortion Laws Unconstitutional.”
Wait, what? In Oklahoma?
Yes, in two recent decisions, the Oklahoma Supreme Court decided that three recently enacted pro-life laws violated the state constitution.
While abortion advocates are claiming victory, the state Legislature can easily correct those narrow decisions.
Last year, the U.S. Supreme Court overruled its decisions in Roe v. Wade and Planned Parenthood v. Casey, which invented and affirmed a constitutional right to abortion. In Dobbs v. Jackson Women’s Health Organization, the court held that because the U.S. Constitution “does not confer a right to abortion,” the “authority to regulate abortion must be returned to the people and their elected representatives.”
Legislators in Oklahoma had begun exercising that authority more than a century before, by enacting § 861, a law prohibiting abortion except when necessary “to preserve [the mother’s] life.”
With the Roe and Casey blockades lifted, that law went back into effect, and the legislature then enacted § 1-731, which prohibited abortion “except to save the life of a pregnant woman in a medical emergency.”
Abortion advocates argued that those two laws violated two provisions of the Oklahoma Constitution. Article 2, Section 2 provides: “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” And Article 2, Section 7 reads: “No person shall be deprived of life, liberty, or property, without due process of law.”
Several other state constitutions have similar provisions, and high courts in some of those states have interpreted them to create a virtually unfettered right to abortion.
The Oklahoma Supreme Court, however, did not go nearly that far. In a 5-4 decision released on March 21, the court held only that the state constitution’s inherent rights and due process provisions create a “right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”
As if anticipating that abortion advocates would try to spin this as a broad decision, the court twice stated that it was saying nothing about “a right to an elective termination of pregnancy, i.e., one made outside of preserving the life of the pregnant woman.”
Applying that narrow interpretation, the court said that § 861 was constitutional because it used the appropriate “preserve [the mother’s] life” language. By using “save” rather than “preserve” and adding the requirement of a “medical emergency,” however, § 1-731 allowed an abortion only when the mother’s life is in “actual and present danger.”
That, the court said, was too restrictive.
The second decision came on Wednesday, in a similar challenge to two other recent pro-life laws. One prohibited abortion after detection of a fetal heartbeat; the other did so from conception, and each contained the “necessary to save the life of a pregnant woman in a medical emergency” language.
As it had with § 1-731, the court held that this violated a woman’s right to an abortion that is necessary to preserve her life.
Abortion advocates in Oklahoma have falsely described these decisions as though they were the state equivalent of Roe v. Wade. State House Minority Leader Cyndi Munson, D-Oklahoma City, for example, claimed that they would “keep health care decisions where they belong, between Oklahomans and their physicians.”
Munson knows this isn’t true. Not only did the state Supreme Court uphold § 861, which bans nearly all abortions throughout pregnancy, but the Legislature need only amend the more recent laws with § 861’s “preserve [the mother’s] life” language. State Sen. Julie Daniels, R-Bartlesville, who authored the bills struck down on Wednesday, has already called for legislative action.
Even this narrow decision is not necessarily the Oklahoma Supreme Court’s last word on this. In 2018, for example, the Iowa Supreme Court mirrored Roe v. Wade by interpreting the state constitution’s due process clause to create a wide-open right to abortion.
Four years later, just one week before the U.S. Supreme Court overruled Roe, the Iowa Supreme Court overruled its 2018 decision.
In January, the South Carolina Supreme Court voted 3-2 that the South Carolina Constitution’s provision regarding unreasonable searches and seizures actually included a right to abortion, striking down that state’s ban on abortion after fetal cardiac activity can be detected.
In a completely fractured decision, each of the five justices, in both the majority and minority, wrote a separate opinion explaining his or her position. State Justice Kaye Hearn, who voted with the majority, has retired and state Justice D. Garrison Hill was elected to replace her. Another challenge to the abortion ban is now before the newly reconstituted state Supreme Court.
Active efforts are under way in at least half of the states to protect the unborn, including bans on abortion after a fetal heartbeat is present. Legal challenges to pro-life laws will continue in state courts under state constitutions. Meanwhile, abortion advocates are pushing to make some of those constitutions more abortion-friendly.
These Oklahoma decisions show that, in many states, protecting the unborn will depend on how legislators draft those laws and, if necessary, respond to court decisions.
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