Law & Principles, Culture & the Family

Oklahoma Supreme Court abortion ruling points to the need for judicial reform

March 24, 2023

Ryan Haynie

Earlier this week, the Oklahoma Supreme Court dropped a bombshell opinion wherein it found the Oklahoma Constitution protects the right to terminate a pregnancy to preserve the life of the mother. In the ultimate exercise of futility, it did so despite both statutes in question providing for that very exception. Rather than providing clarity on the state of Oklahoma’s abortion laws, the Court muddied the waters by finding a right it wasn’t asked to find and didn’t need to find, injecting itself into the policymaking process, and leaving the door wide open for abortion on demand should it decide it favors that policy down the road.

The first problem with the Court’s decision is its “discovery” of a constitutional right with precious little legal analysis. Where did it find this new constitutional right? For that, the Court relied on sections 2 and 7 of Article II of the Oklahoma constitution.” Those two sections state, “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry,” and “No person shall be deprived of life, liberty, or property, without due process of law,” respectively. With no analysis of what those provisions mean—much less what they meant to the people who ratified the Oklahoma Constitution more than 100 years ago—the Court’s majority decided that the right to terminate a pregnancy when the life of the mother is at stake is a constitutional right because a law permitting that exception to a prohibition on abortion existed before statehood.

All of the dissents took this conclusion to task, with Chief Justice Kane noting “[o]ur Constitution is a highly detailed enumeration of rights, not a broad, sweeping statement of concepts.” Justice Kuehn wrote a particularly compelling dissent, rightly noting, “[i]t is not the job of this Court to create a right where none exists,” and “[t]here simply is no language in our due process clause which includes any right to terminate a pregnancy.” She went on to note the lack of legal explanation for the Majority’s statement that “the Oklahoma Constitution ‘creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.’”

But there is another problem with the opinion. Let’s imagine for a minute that the right to terminate a pregnancy to save the life of the mother was a fundamental right and not just a prudential judgment call for the legislature. In that case, the Supreme Court is not the appropriate policymaking body to decide how that “right” would be enforced or regulated. That decision is left to the legislature. In fact, you may be thinking, “I thought our abortion laws already had an exception for the life of the mother.” As mentioned previously, you would be correct. The law the Supreme Court struck down provided for an exception to save the life of the mother in a medical emergency.

This “medical emergency” concept was a bridge too far for the majority. Call me crazy, but I believe a threat to the life of the mother is a medical emergency. I certainly hope the people around me believe a threat to my life is a medical emergency. Here, too, Justice Keuhn was particularly persuasive, writing, “[e]ven if I agreed with the Majority that the Oklahoma Constitution provides a limited right to termination of pregnancy to preserve the life of the mother, I could not agree with the Majority’s attempt to define that phrase . . . that task belongs to either the people or their legislative representatives.

Finally, and perhaps more importantly, the Court seems to be leaving room for a complete and unfettered right to an abortion in the future. Because while the Court refused to find one of the abortion laws unconstitutional, it deferred on the question of whether the Oklahoma Constitution has anything to say about a right to elective abortions generally. If that seems wholly unreasonable, Justice Rowe agrees. He writes, “[t]he majority claims that it makes no ruling on whether the Oklahoma Constitution provides a right to an elective termination of pregnancy, yet the majority rejects the constitutional challenge to 21 O.S. § 861, which explicitly prohibits elective abortions.”

If the above-mentioned constitutional provisions provide a right to terminate a pregnancy to save the mother’s life, then does the right to the pursuit of happiness provide a constitutional right to terminate any pregnancy for any reason? We don’t know, because the Court’s majority gave us no indication.

This kind of shoddy analysis has become par for the course with this Court. As Carrie Campbell Severino pointed out at National Review, Oklahoma’s system for picking appellate judges is “a relic of the progressive era’s distaste for democracy [that] ties the hands of governors by allocating much of the nominating power to state bar associations.” OCPA has written extensively on the need to reform our judicial selection process by eliminating the Judicial Nominating Commission and replacing it with a federal model where the executive appoints jurists with the legislature serving in an advise-and-consent role.

Last year, a bill to abolish the JNC passed the Senate but met opposition in the House of Representatives. Both chambers, which consider themselves very pro-life, may want to reconsider whether the process we currently use to select jurists is worth preserving—even if changing the status quo upsets their friends at the Oklahoma Bar Association.