OKLAHOMA CITY (KFOR) – The Oklahoma Supreme Court has determined the state statute limiting abortions to those experiencing a medical emergency is unconstitutional.
§63-1-731.4 of the Oklahoma state statutes says, “a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.”
The statute defines medical emergency as “a condition which cannot be remedied by delivery of the child in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness or physical injury including a life-endangering physical condition caused by or arising from the pregnancy itself.”
The plaintiffs, including healthcare providers and reproductive rights organizations, argued that Article II, sections two and seven of the Oklahoma Constitution preserved the right to an abortion outside of an active medical emergency.
Article II, section seven states, “No person shall be deprived of life, liberty, or property, without due process of law,” while section two states, “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”
In a 5-4 decision, the Oklahoma Supreme Court Justices determined the medical emergency stipulation of §63-1-731.4 to be unconstitutional, therefore is void and unenforceable.
The court’s analysis determined the medical emergency clause would require the person to be in “actual and present danger” in order to receive a medically necessary abortion.
However, the court upheld a second statute that criminalizes abortion providers unless it is “necessary to preserve her life.”
§21-861 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.”
The plaintiffs argued that law should also be repealed by implication of §63-1-731.4’s unconstitutionality, but the court determined its stipulation of preserving life allows for pregnancy termination without the immediate danger of a medical emergency and therefore does not violate the constitutional right to life and liberty.
While the Oklahoma Supreme Court recognized a limited right to abortion, it declined to weigh in on whether the state constitution broadly protects the right in other circumstances.
Justices Yvonne Kauger, James R. Winchester, James E. Edmondson, Douglas L. Combs and Noma Gurich all concurred, while Chief Justice M. John Kane IV and Vice Chief Justice Dustin P. Rowe, along with Justices Richard Darby and Dana Kuehn dissented.
Following the ruling, several plaintiffs shared their reactions.
“We are disappointed that the Court declined to rule whether the state Constitution also protects the right to abortion outside of these circumstances,” said Nancy Northup, President and CEO of the Center for Reproductive Rights. “The Oklahoma Supreme Court’s own precedent and the plain language of the Oklahoma Constitution guarantee the right to liberty and assure that a broad right to reproductive autonomy exists. Yet Oklahomans are still being denied the right to make decisions about their own bodies, families and futures.”
“Today, the court finally recognized that pregnant Oklahomans facing life-threatening conditions should be able to get the time-sensitive, essential care they need,” said Dr. Alan Braid, abortion provider and plaintiff in the case. “Still, this ruling leaves out too many Oklahomans. Oklahomans shouldn’t have to travel across state lines just to reach an abortion clinic, and it is heartbreaking that many will not be able to do so.”
“Today’s decision is the first step in what will be a long journey to restore real, meaningful rights of Oklahomans over their own bodies. But make no mistake: this is a small step. The Oklahoma Supreme Court recognized one fundamental truth: patients must be permitted to access critical care to save their lives. But the right recognized today is so limited that most people who need abortion will not be able to access it,” said Emily Wales, president and CEO of Planned Parenthood Great Plains. “This ruling will have severe repercussions for the health and well-being of Oklahomans. So many people who need care have been left behind by this court. Health care providers’ hands are still tied by an abortion ban that would make them criminals for providing essential care. With abortion access functionally eliminated in the state, Planned Parenthood Great Plains will continue doing everything we can to be here for people who need us, just as we have been for decades.”
In statement released Wednesday afternoon, Oklahoma leaders against abortion criticized the Oklahoma Supreme Court opinion:
“We respect the Court’s ruling and are pleased the justices acknowledged the exception for cases in which the life of the mother is at risk.”Gentner Drummond, Oklahoma Attorney General
“I wholeheartedly disagree with this activist majority’s opinion creating a right to an abortion in Oklahoma. Alarmingly, this activist majority acted out of hand by making a policy decision that belongs to the people. Chief Justice Kane said it best in his well-written dissent: ‘This Court should adhere to the Constitution given to us, not craft what we believe to be a “better” Constitution. The power lies with the people,'”Governor Kevin Stitt
“Furthermore, in their 20 page opinion, not once was there any mention of the unborn. From the moment life begins at conception, we have a responsibility to do everything we can to protect that baby’s life and the life of the mother. That is what I believe and that is what the majority of Oklahomans believe which is why the Legislature has passed, and I have signed, numerous laws banning abortion in Oklahoma.”
The sentiment of the Governor was echoed along party lines by Senator Nathan Dahm , (R)- Broken Arrow.
He previously authored SB 612, calling for a near total ban on abortion.
“[The decision] just shows that they are incompetent, that they don’t understand their role and their position, and that they are abusing the positions that they are in,” Sen. Dahm said in an interview Tuesday with KFOR.
“It looks like they are trying to find a way to open it up further to allow for more innocent lives to be killed in the womb,” he added.
The co-chair for the Oklahoma Call for Reproductive Justice said the ruling does not give Oklahomans any more guidance on what their rights are.
“We’re really in the same position we were yesterday where access to abortion is still unattainable [and] that’s unfortunate, I think, for all Oklahomans,” said Tamya Cox-Touré.
“Even with Senate Bill 612 being struck down as unconstitutional, that it still doesn’t provide access to abortions that Oklahomans may need and deserve,” she added.