Law & Principles , Culture & the Family , Judicial Reform
Ray Carter | November 15, 2023
Democrat praises Oklahoma Supreme Court’s abortion activism
A state Democratic leader is praising the Oklahoma Supreme Court for its latest in a string of decisions that have struck down or blocked implementation of state pro-life laws.
Dissenting justices have bluntly noted that those decisions are not based in the plain meaning of the Oklahoma Constitution or state law, and that the court has even ignored its own recent decisions in the process of striking down or blocking enforcement of state abortion laws.
In March, a slim majority of Oklahoma Supreme Court justices issued an opinion declaring that the Oklahoma Constitution “protects the right of a woman to terminate her pregnancy in order to preserve her life” based on the provisions of Article II, Sections 2 and 7 of the Oklahoma Constitution.
Neither constitutional provision cited by the majority has any direct link to abortion.
A dissent issued by Chief Justice M. John Kane IV in that case noted the majority had engaged “in legal contortions to protect pregnant women who are in medical peril by fashioning Oklahoma Constitutional precepts of abortion law that simply do not exist. There is no expressed or implied right to abortion enshrined in the Oklahoma Constitution.”
The court subsequently declared two more state abortion laws to be unconstitutional based on their March decision. One law prohibited abortion after detection of a fetal heartbeat except in cases of medical emergency. The second law banned abortions unless “necessary to save the life of a pregnant woman in a medical emergency” or in cases where the pregnancy is the result of rape or incest that has been reported to law enforcement officials to prosecute.
This week, the court added to those decisions by overturning a lower court’s ruling that denied an injunction sought by pro-abortion entities against three abortion-related laws.
In its decision allowing the injunction, the majority of justices on the Oklahoma Supreme Court wrote, “Maintaining the status quo would further the public interest of protecting a woman’s right to terminate a pregnancy in order to preserve her life.”
The decision drew strong praise from House Democratic Leader Cyndi Munson of Oklahoma City, who called the decision “a good day for women’s health care.”
But in a dissent, Justice Dustin Rowe noted that in prior cases petitioners had challenged a provision of Oklahoma law in place since 1910 that prohibits elective abortion, and the court let that law stand even as it declared the Oklahoma Constitution provided a right to abortion to save the mother’s life.
Now, he noted, the majority’s latest opinion suggests that it has not ruled on that provision of law, despite having upheld it earlier this year since it includes a “life of the mother” exception. Rowe called the majority’s incoherence on the issue “baffling.”
“Upholding a statute which criminalizes the performance of an abortion—except when necessary to save the mother’s life—is completely irreconcilable with the Majority’s continued claim that we have not ruled on the constitutionality of elective abortion,” Rowe wrote.
Justice Dana Kuehn wrote a similar dissent, saying she disagreed with the court’s earlier ruling declaring a limited right to abortion is in the Oklahoma Constitution since she “cannot find language in the Oklahoma Constitution which supports such a right, and I believe the creation of any right to abortion should be done by the people of Oklahoma, through initiative petition or their elected representatives.”
“However, I also believe that, having made that decision, this Court is compelled to give it full effect—which the Majority here fails to do,” Kuehn wrote.
Kuehn added that “if the Oklahoma Constitution protected elective abortions, there would be no need to discover a limited protection in contemporaneous statutory language, and when the Court found a limited protection … it foreclosed the possibility of finding a more expansive right in the same language.”
Members of the Oklahoma Supreme Court are chosen in secret by a 15-member Judicial Nominating Commission (JNC). Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the commission voted on judicial nominees.
In the case of Oklahoma Supreme Court vacancies, the JNC selects up to three nominees. The governor is not allowed to consider any lawyers for Oklahoma Supreme Court positions aside from those selected in secret by the JNC.
While Oklahoma voters have overwhelmingly supported Republican governors and federal officeholders for more than two decades now, the JNC’s membership does not reflect the attitudes of the voting public in Oklahoma.
Instead, public records show members of the Oklahoma JNC have included campaign donors to Democratic candidates at both the state and federal level.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.