Law & Principles

What is the Oklahoma Supreme Court doing?

June 1, 2023

Ryan Haynie

The Oklahoma Supreme Court has been busy. Busy striking down abortion laws passed by the Oklahoma legislature. This may strike some as odd. After all, the United States Supreme Court ruled in Dobbs that “Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.” The Court further held, “Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” And while the Oklahoma Supreme Court justices may sit for retention ballots, they are neither elected nor representatives.

Some have countered that state constitutions are allowed to afford more protections to individuals than the federal Constitution, which (they say) justifies the Oklahoma Supreme Court striking down abortion laws under the Oklahoma Constitution. It is certainly correct that state constitutions may go further in protecting rights than the federal Constitution. However, the Oklahoma Supreme Court relied on two sections of the Oklahoma Constitution—one of which mirrors the federal constitution. How is it that the exact same language does not provide a right to abortion in one case, but does provide a limited right to abortion in another case?

As for the other provision, the Oklahoma Supreme Court merely quoted the law, and added a single sentence stating the provision “stands as the basis for protecting a woman’s right to terminate a pregnancy in order to preserve her life.” Zero textual analysis. No discussion about the state’s interest in protecting the life of the unborn child. Just a single sentence. This Oklahoma Supreme Court is not serious.

You might be thinking that the life of the mother is a good exception to abortion laws, and the Court was right to strike down laws that don’t contain such an exception. The only problem is, both laws struck down yesterday contained exceptions for the life of the mother. Again relying on its disaster of an opinion from March, the Court found the provisions allowing an exception for the life of the mother were insufficient. Here, again, the Court conveniently forgets the Dobbs ruling that “the authority to regulate abortion must be returned to the people and their elected representatives.”

As he did in March, Vice Chief Justice Dustin P. Rowe wrote a very good dissent that the majority either didn’t read or just flat out failed to address. He pointed to a provision in SB 1503 that gave treating physicians discretion to determine “what constitutes a medical emergency.” As Justice Rowe points out, that’s exactly what the majority held as sufficient just two months ago. The majority in that case wrote, “a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman’s physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life.” In other words, the Court has now moved the goalposts entirely.

In sum, a few months ago, Oklahoma had four laws outlawing abortion. Each one had an exception for the life of the mother. Now Oklahoma has one law outlawing abortion with an exception for the life of the mother. Very little has changed. What, you might be asking, was the point of all this? It’s possible, as Justice Rowe pointed out in his dissent, the majority is going even further than they did in their March opinion—leaving the door open for an unfettered right to abortion in the future.

Many Oklahoma lawmakers are rightly seeing the need for judicial reform in Oklahoma—specifically, abolishing the Judicial Nominating Commission (JNC) in favor of a federal model where the governor appoints appellate judges and justices with the advice and consent of the Oklahoma Senate. Some have noted that the majority of Oklahoma Supreme Court justices were appointed by Republican governors. This is true, but it ignores the fact that those governors were only presented with options already “vetted” by the JNC. This vetting process is not subject to the Open Meetings Act.

While the Oklahoma Bar Association’s seats on the JNC make up a minority of the membership, they make up 100 percent of the subject-matter experts. The other members appointed by elected officials cannot be lawyers or have immediate family members who are lawyers. The JNC is a byproduct of the Progressive Era when progressives like Woodrow Wilson sought to have every aspect of our lives dictated by “experts.”

Abolishing the JNC and moving to the model formulated by James Madison would inject more accountability into the judicial system while maintaining the separation of powers so vital to the republican form of government.