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There is arguably no issue more controversial in American politics than abortion. Since before statehood, Oklahoma law has sought to protect the life of the unborn. The ability of states to protect unborn life was severely hampered by Roe v. Wade, and later Planned Parenthood v. Casey, by what Justice Byron White called the exercise of “raw judicial power.” 

After the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., abortion advocates were left with no other option than to ask state courts to exercise the same raw judicial power the United States Supreme Court rightly rejected. And those advocates found an ally in the Oklahoma Supreme Court.

For years, the Oklahoma Supreme Court punted on abortion cases—justifiably pointing to United States Supreme Court precedent and declining to answer the question of whether the Oklahoma Constitution provided its own “right” to abortion. There was nothing preventing the Oklahoma Supreme Court from settling the question. A cynic might conclude that the justices who favored abortion wanted to avoid accountability for imposing their view on their fellow Oklahomans.

All that punting disappeared—you might say “paid off”—in 2023 when the Oklahoma Supreme Court decided Oklahoma Call for Reproductive Justice v. Drummond. Faced with the effect of the Dobbs decision and its own past inaction, five Oklahoma Supreme Court justices rushed to the aid of abortion advocates. The Court’s majority found a limited right to abortion in the Oklahoma Constitution. But if you search for the word “abortion” in the Oklahoma Constitution, you won’t find it—despite Oklahoma having one of the longest constitutions in the country.

To reach its preferred result, the Court’s majority turned to the “inherent rights” provision which states, “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyments of the gains of their own industry.” This language is drawn from the Declaration of Independence. As law professor Andrew Spiropoulos has put it, those words “state our abstract natural rights, not our positive legal ones.”

How could those words possibly state our positive legal rights? Every single clause puts various interests in conflict with each other. Let’s take them one at a time.

• The inherent right to life comes into conflict in self-defense situations. Whose right triumphs? Traditionally, the Legislature has made that call.
• The inherent right to liberty, likewise, cannot possibly be considered a positive legal right. My “liberty” to swing my arms ends when my fist hits your face. And in the abortion context, the liberty interest of self-autonomy is in conflict with the right to life of the unborn child. In short, the entire Oklahoma Code infringes on some kind of liberty interest.
• The right to pursue happiness is perhaps the most difficult to enforce as a positive legal right. Not only do competing pursuits come into conflict, but pursuing happiness is a completely subjective pursuit.
• Finally, the right to the gains of your own industry is equally problematic. The Legislature prohibits me—rightly—from using my industry to steal or infringe on others’ property rights. 

It is clear that these inherent rights can never be treated as legally absolute—they are in constant conflict. A better approach is to recognize that while natural-rights principles are a fundamental part of the American legal and political system, these rights are not positive legal rights. They instead serve as guideposts for lawmakers who are required to balance the various interests protected by these rights. To view them as positive legal rights, as the Court’s majority did in this case, makes the Legislature superfluous and makes the Court the center of government—something it is unfit and ill-equipped to be. 

Not only was the decision terrible for not even considering the life of the unborn child, but it also took the balancing of interests—the essence of policy-making—out of the hands of the Legislature and put it in the hands of the Court. The Legislature isn’t just better at policy-making than the courts—making policy is its purpose, its job.