A divided Oklahoma Supreme Court narrowly ruled on Tuesday that the state constitution protects a woman’s right to have an abortion when a doctor deems it necessary to save her 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,” read the 5-4 majority opinion (pdf), which comes with six separate concurring and dissenting opinions.
To have this “inherent right,” according to the state’s highest court, means that a woman gets to choose to end her pregnancy at any point if her 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.”
“Absolute certainty is not required, however, mere possibility or speculation is insufficient,” the judges added.
The case was brought by a coalition of abortion providers and pro-abortion advocacy groups led by the Oklahoma Call for Reproductive Justice. It challenged two laws approved by the Oklahoma Legislature to ban most abortions in the wake of last summer’s U.S. Supreme Court decision, which ended the 50-year-old federal protection of abortion and tossed the question back to each state to resolve on its own.
The majority opinion highlighted one constitutional provision: “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”
This section, according to the majority on the bench, “stands as the basis for protecting a woman’s right to terminate a pregnancy in order to save her life.”
Tuesday’s ruling struck down a 2022 law that bans health providers from performing an abortion unless the woman is in an actual medical emergency, defined as a life-threatening “physical disorder, physical illness, or physical injury.” Offenders could be punished by up to 10 years in jail, fined up to $100,000, or both.
“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,” the judges said.
Chief Justice M. John Kane, a Republican, offered one of the four dissenting opinions, arguing that if the original framers of the very lengthy state constitution did intend to guarantee such a right for women, they would have explicitly written out the point they were making.
“Oklahoma’s Constitution is still currently the third-most detailed Constitution in the nation, now containing almost 85,000 words,” Kane wrote. “Had the framers chosen to classify abortion under any scenario as a fundamental Oklahoma right, rather than a felony, they certainly would have done so explicitly, not by implication.”
“This Court should adhere to the Constitution given to us, not craft what we believe to be a ‘better’ Constitution,” he argued. “That power lies with the people.”
Kane’s comments were echoed by Vice Chief Justice Dustin Rowe, who argued in his dissenting opinion that it’s the responsibility of publicly elected legislators, rather than judges, to create public policies.
“As a Court, we are not allowed to receive comments from the public, correspond with the public, or consider the public debate on an issue,” the Republican judge wrote. “More importantly, we do not serve constituents, and we are not elected. Simply put, this Court is neither empowered nor well-situated to craft policy for our State.”
“In a Democracy, such as ours, this most divisive issue of our time can only—and should only—be resolved by the People.”
According to Kane, Oklahoma’s constitution has been amended over 150 times since Oklahoma joined the United States in 1907, but no amendment has been passed to provide abortion rights. With that said, the U.S. Supreme Court’s 1973 decision in Roe vs. Wade rendered any such effort after that year meaningless.