Law & Principles, Culture & the Family, Judicial Reform
To understand the Oklahoma Supreme Court’s latest abortion ruling, read the dissents
November 21, 2023
If you are trying to understand the Oklahoma Supreme Court’s abortion jurisprudence, your best bet is to read the dissenting opinions. The Court’s latest decision—handed down earlier this week—is no exception.
Earlier this year, the Oklahoma Supreme Court—after years of punting on abortion thanks to Roe and Casey—finally issued a ruling on whether the Oklahoma Constitution recognizes a right to abortion. In a 5-4 decision, the Oklahoma Supreme Court held the Oklahoma Constitution does protect the right to have an abortion in limited situations. That case struck down two of the three pro-life laws that were challenged, leaving intact a statute from 1910 prohibiting abortion except to save the life of the mother.
As I wrote then, the majority opinion was weak on analysis, and Justice Kauger’s concurring opinion was a meandering mess. Nevertheless, there was a feeling at the time that the decisions in March and May were simply the Court’s way of getting the camel’s nose under the tent. While the Court had left the 1910 statute in effect, there was a sense they weren’t done yet.
This week, the Court proved those concerns were valid. Under consideration was whether a trial court in Oklahoma County should have granted a preliminary injunction enjoining three pro-life laws (that is, preventing them from taking effect). Those laws were HB 1904 (requiring physicians performing abortions to be board certified in obstetrics and gynecology), SB 778 (requiring an ultrasound to be done 72 hours prior to an abortion), and SB 779 (requiring physicians performing abortions to have admitting privileges at a hospital in the county the abortion is performed). All three laws were passed by the Oklahoma Legislature and signed into law by Governor Kevin Stitt in 2021–over a year before the United States Supreme Court decisions in Dobbs.
This week’s majority opinion found that the trial court erred in not granting a preliminary injunction with respect to all three laws. As Court watchers have come to expect, the majority opinion was conclusory and light on substance. To help understand just how bad the opinion is, it really helps to read the dissents. This is especially important because the majority opinion does not address the arguments made in the dissents at all.
Chief Justice John Kane is the first to dissent. His opinion takes aim at a concurring opinion written by Justice Yvonne Kauger–hers being the most unhinged thing I’ve read since her last concurrence in the March abortion decision. Here is her concurring opinion, in full:
One of the dissents states:
“Any analysis of an abortion statute that proceeds under the proposition that the life of the unborn is unworthy of consideration is defective.”
Any analysis of an abortion statute that proceeds under the proposition that the life of the mother is unworthy of consideration is defective.
The Chief Justice, after noting the majority opinion fails to acknowledge the life of the unborn, states, “In a separate concurring writing, my colleague makes the identical point as to the life of the mother. I completely agree with my colleague on this. However, the interests of the mother were the only interests considered by the majority—the rights of the unborn remain unheard.” This point—that even cases favoring abortion have at least attempted to balance the interests of the mother and the unborn child—is hard to understate. The Supreme Court of Oklahoma simply doesn’t undertake that analysis.
In another dissent, Justice Rowe points to an erroneous statement by the majority opinion that the Court has not decided the issue of whether the Oklahoma Constitution recognizes a right to abortion outside the exception of the life of the mother. Justice Rowe rightly points out the Court left the 1910 law in effect in its prior cases. Thus, the Court has decided the issue, and it has decided such a “right” does not exist outside the narrow exception of the life of the mother. Justice Rowe points out what many pro-lifers worry about. The majority’s refusal to acknowledge its ruling on the constitutionality of the general ban on abortions “is misleading to the public and opens the door for further, fruitless litigation on a question this Court has already answered.”
Justice Darby also dissents. I was especially glad to read his opinion, which points out something that stood out to me when I read the majority opinion. The majority opinion recognizes that the Court had already ruled on the constitutionality of a bill similar to SB 779 in 2016. That case had been decided under the “undue burden” test from Roe and Casey and was challenged based on the United States Constitution. Justice Darby rightly pointed out that any decision reached by the Oklahoma Supreme Court interpreting federal law that was changed by Dobbs is wholly irrelevant to the issue of whether a similar law is constitutional under the state constitution. Accordingly, the majority opinion’s pronouncement that it had “previously determined this requirement to be an impermissible hurdle” was erroneous.
Finally, Justice Kuehn points out that the district court’s decision to deny injunctive relief on the 2021 bills was made before the Dobbs decision and the Oklahoma Supreme Court’s decisions earlier this year. Because the plaintiff’s claims were under the state constitution, the trial court could not have made its decision in light of cases that were decided after. Justice Kuehn was right to point out “at the time the district court heard this issue, there was no clear right to abortion of any kind based in the Oklahoma Constitution, as this Court had not yet decided OCRJ I.” Accordingly, the appropriate remedy—to the extent the Court isn’t willing to rethink its ghoulish decision from the spring—would be to remand back to the trial court for another hearing in light of the new line of cases.
As the dissents illustrate, it’s not just that the majority opinion is inventing a right to abortion where none exists. Arguably, the bigger issue is the majority of the justices are not good at interpreting the law. That might sound cavalier to some, but it’s not just this young lawyer who thinks that. Law professor and former-OCPA fellow, Andy Spiropoulos, has been making the same case for years. And the dissents make this same conclusion all too clear. If Oklahoma wants a state Supreme Court that reflects its values (and does its job well), the Judicial Nominating Commission should be abolished and replaced with a system modeled after the United States Constitution. Under that system, the governor could choose judges and justices without certain nominees being blackballed by the unaccountable Judicial Nominating Commission. Luckily, voters may get the chance to make that change in the 2024 election.