Law & Principles

Oklahoma Supreme Court continues pro-abortion rulings

May 31, 2023

Ray Carter

The Oklahoma Supreme Court has declared two state laws restricting abortion to be unconstitutional, citing an earlier ruling in which the court declared abortion is a right granted by the Oklahoma Constitution despite the fact that the state constitution contains no language directly or implicitly addressing abortion.

In a March case, Oklahoma Call for Reproductive Justice v. Drummond, 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.

Article II, Section 7 of the Oklahoma Constitution states, “No person shall be deprived of life, liberty, or property, without due process of law.” Article II, section 2 of the Oklahoma Constitution states, “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

A dissent issued by Chief Justice M. John Kane IV in that case noted that 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.”

However, based on that March ruling, a majority of the Oklahoma Supreme Court justices have now declared two more state abortion laws to be unconstitutional. One law prohibits abortion after detection of a fetal heartbeat except in cases of medical emergency. The second law bans 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.

The two laws were enacted in 2022 via Senate Bill 1503 and House Bill 4327.

“Pursuant to this Court’s decision in Oklahoma Call for Reproductive Justice v. Drummond …, finding an ‘inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life,’ we find these two statutes to also be unconstitutional,” the court majority declared.

Justices Yvonne Kauger, James R. Winchester, James E. Edmondson, Douglas L. Combs, Noma Gurich, and Richard Darby formed the majority. Darby had dissented from the court’s March declaration that abortion is a state constitutional right but wrote in a concurring opinion that he believes the abortion laws targeted in the latest case are unconstitutional due to the doctrine of stare decisis, which holds that court rulings must align with prior rulings.

Chief Justice Kane, Vice-Chief Justice Dustin P. Rowe, and Justice Dana Kuehn dissented.

As with the Oklahoma Supreme Court’s March ruling, dissenters noted the majority opinion had no basis in either the state constitution or prior court rulings.

In his dissent, Rowe noted the two laws struck down by the court in its latest decision provide “a ban on elective abortion, which the majority upheld” in its March ruling in Oklahoma Call for Reproductive Justice v. Drummond, and “an exception that the majority endorsed” in Oklahoma Call for Reproductive Justice v. Drummond.

“In combination, these provisions completely comport with our currently settled precedent,” Rowe wrote. “Accordingly, stare decisis leads to a finding of constitutionality—not unconstitutionality—as the majority finds.”

Rowe’s dissent concluded, “The issues presented in this matter are political questions, which are better resolved by the people via our democratic process.”

The court’s ruling drew swift condemnation.

“The court’s ruling today has little to no impact regarding abortion in Oklahoma,” said Senate President Pro Tempore Greg Treat, R-Oklahoma City. “The ruling has no authority over Oklahoma’s criminal penalties for doctors who perform an abortion. After the U.S. Supreme Court accurately ruled in 2022 there is no constitutional right to an abortion in the United States, it remains illegal to get an abortion in Oklahoma, unless it is to save the life of the mother. The state Supreme Court continues to ignore precedent set by federal and state law and keeps making political decisions outside their authority. Today’s decision is another example of why comprehensive judicial reform is needed sooner than later. In the meantime, it is important for Oklahomans to know that leaders in the Legislature are committed to the right to life in Oklahoma.”

“Every bill they have struck down already had an exception for the life of the mother,” said state Sen. David Bullard, R-Durant. “The reality is that this court continues to make the same mistake of the court in 1973 by only applying the right to life to one person involved in the abortion. The unborn person has committed no crime and should not be convicted and sentenced to death by inept judges. They also continue, with each radical left ruling, to make themselves incompetent and out of touch with the state they serve. They are, however, making judicial reform more and more of a necessity and the Legislature will reform the courts to be what they should have been all along.”

State Sen. Julie Daniels, R-Bartlesville, called the decision the act of “a rogue Oklahoma Supreme Court, acting as self-appointed legislators” that had “unleashed another attack on Oklahoma’s unborn children” and “showed their contempt for the separation of powers.”

“These laws ensuring abortionists faced paying damages and the loss of their medical licenses was already precedent in other states, such as Texas,” Daniels said. “Our court should have dismissed these two lawsuits last year.”

She said the court was playing a “dangerous game” in “terms of judicial activism” that showed the need for reform.

“It should be a wakeup call to my colleagues that we need to strongly consider legislative intervention to avoid any more erosion to pro-life measures, or any other pieces of legislation that the Oklahoma Supreme Court doesn’t like,” Daniels said.

“I again wholeheartedly disagree with the Oklahoma Supreme Court’s use of activism to create a right to an abortion in Oklahoma,” said Gov. Kevin Stitt. “This court has once more over-involved itself in the state’s democratic process and has interceded to undo legislation created by the will of the people. I agree with Justice Rowe’s dissent, ‘The issues presented in this matter are political questions, which are better resolved by the people via our democratic process.’

“As governor, I will continue to do my part to fight to protect the lives of the unborn,” Stitt continued. “From the moment life begins at conception, we have a responsibility to do everything we can to protect that baby’s life and the life of the mother. Oklahoma will keep working to be the most pro-family state in the nation.”

“I am disappointed with today’s ruling from the Oklahoma Supreme Court regarding SB 1503 and HB 4327,” said Oklahoma House Speaker Charles McCall, R-Atoka. “A supermajority of members in both chambers supported this legislation that was signed by the governor. However, Oklahomans can rest assured that House Republicans will continue to protect the lives of the unborn and pursue legislation that values all life. Thanks to the leadership of House and Senate Republicans, Oklahoma is one of the most pro-life states in the nation. Today’s ruling won’t change that, and we will continue to be a voice for the voiceless as we strive to protect the right to life in the State of Oklahoma.”

Democrats welcomed the court’s pro-abortion rulings.

“Today’s ruling is a reminder, for the supermajority in both chambers, that putting forth extremist legislation for partisan political points is a waste of taxpayer time and money,” said House Democratic Leader Cyndi Munson, D-OKC.

Ruling Puts Spotlight on Judicial Reform

As indicated by Treat and Bullard in their statements, the Oklahoma Supreme Court’s perceived political activism on abortion issues has brought renewed focus on the process used to select Oklahoma judges. That process is one of the most secretive in the nation, occurring behind closed doors with no public transparency, in stark contrast with the federal process that requires congressional approval of nominees in public hearings.

Instead, Oklahoma uses a Judicial Nominating Commission (JNC), a 15-member group that selects nominees from applicants. JNC members are appointed by a variety of state officials and special interests.

In the case of Oklahoma Supreme Court vacancies, the JNC recommends only three nominees. The governor is not allowed to consider appointing anyone else, regardless of other potential jurists’ records and qualifications.

Oklahoma is one of only 12 states with a JNC system, sometimes referred to as a “Missouri plan,” and Oklahoma’s JNC is among the least transparent of those 12. Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the group voted on nominees. Research conducted by the 1889 Institute in 2019 found that Oklahoma’s JNC is among the most secretive in the nation. In other states, open meetings and public votes are common.

Oklahoma’s JNC system has also generated concern over perceived insider dealing.

In 2019, a member of the Judicial Nominating Commission was a financial contributor to the political campaign of a judge considered by the JNC for an Oklahoma Supreme Court vacancy, but the JNC member declined to recuse herself from the evaluation process.

The system has also led to questions of undue influence in Oklahoma’s court system. In 2020, as part of a lawsuit against the Bank of Eufaula, attorneys representing the plaintiffs asked a judge to disqualify himself because an attorney representing the bank had served on the state’s Judicial Nominating Commission when the judge’s nomination advanced.

Carrie Campbell Severino, president of the Judicial Crisis Network, criticized the Oklahoma Supreme Court’s March abortion decision and described it as a product of Oklahoma’s judicial nominating process, which she noted 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, which notoriously lean left.”