Oklahoma Governor Criticizes State Supreme Court’s ‘Activist Majority’ Opinion on Abortion Rights

Oklahoma Gov. Kevin Stitt speaks during a news conference in Oklahoma City, on Feb. 11, 2021. (Sue Ogrocki/AP Photo)

Gov. Kevin Stitt (R-Okla.) on Tuesday criticized the Oklahoma Supreme Court’s “activist majority” decision to create a limited right to abortion, which he said goes against the will of the people.

The court’s 5–4 majority ruling effectively upholds strict anti-abortion laws in place since last year but struck down one law that made abortions illegal while keeping another law in place that only allowed abortions to preserve a woman’s life.

The ruling means abortions are still mostly restricted in Oklahoma.

The majority opinion cited the state constitution, which states that “all persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry,” as the basis for allowing abortion to save the mother’s life.

“We hold that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life,” the majority opinion stated (pdf).

The woman’s physician would need to determine that her life is endangered. “Absolute certainty is not required, however, mere possibility or speculation is insufficient,” the majority opinion stated.

Outside of preserving the pregnant woman’s life, the majority opinion noted that the court made no ruling on elective abortion rights.

One Republican justice joined the five in the majority. All four dissenting justices were appointed by Republicans.

‘Wholeheartedly Disagree’

In response, Stitt said he “wholeheartedly disagree[s]” with the majority decision and criticized the court for overstepping its bounds.

“Alarmingly, this activist majority acted out of hand by making a policy decision that belongs to the people,” Stitt said in a statement.

He also criticized the court for not mentioning the unborn anywhere in its 20-page opinion.

“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,” Stitt said.

The governor highlighted that the state legislature has passed, and he has signed, numerous laws banning abortion in Oklahoma. He noted that he believes that the majority of Oklahomans agree with him.

Elective abortion was forbidden by the Oklahoma legislature in 1910, three years after statehood. It became a felony punishable by two- to five-year prison terms for anyone who administered or prescribed any medicine, drug, substance, or used any instrument or means to procure the miscarriage of a woman unless it was to preserve her life.

Dissenting Opinion

In his dissenting opinion, Chief Justice M. John Kane IV criticized the majority opinion, arguing that it was based on a desire to protect pregnant women rather than a sound legal interpretation.

“There is no expressed or implied right to abortion enshrined in the Oklahoma Constitution,” Kane wrote.

Kane argued that although legislators may have been unwilling to make abortions that saved the life of the mother a matter of criminal law subjecting offenders to prison, this does not necessarily mean that there is a constitutional right to abortion.

“This Court should adhere to the Constitution given to us, not craft what we believe to be a ‘better’ Constitution,” Kane wrote. “That power lies with the people.”

The chief justice said the majority’s opinion ignored the interests of the unborn. “The unborn have no voice, say, or consideration in the opinion of the majority,” he wrote.

He contended that the issue of “balancing the developing life of the unborn against the life of the mother” is a necessary and worthy debate for the people to have. But he noted that the Oklahoma Constitution “pronounces no fundamental right to abortion to consider as part of that dialogue.”

Since the U.S. Supreme Court overturned Roe v. Wade and abolished national abortion rights, Oklahoma has seen efforts to enshrine them in the state constitution.

In September and October of 2022, two initiative petitions, State Questions 825 and 828, were filed with the Oklahoma Secretary of State seeking to include abortion rights in the state constitution. However, State Question 825 failed to receive sufficient signatures, and State Question 828 was withdrawn in December 2022.

Now, a joint resolution has been proposed in the Oklahoma House of Representatives, calling for a referendum on the “Oklahoma Abortion Law Act of 2023.” The proposed legislation seeks to expand access to abortion by enshrining it in the state constitution.

The resolution is currently being debated in the state legislature, and its fate remains uncertain.