526 P.3d 1123
Okla.2023Background
- Petitioners (providers, clinics, physicians, advocacy group) sought original jurisdiction asking this Court to declare two Oklahoma criminal abortion statutes unconstitutional and to enjoin their enforcement.
- Challenged statutes: 21 O.S. § 861 (longstanding felony prohibition with exception "necessary to preserve her life") and 63 O.S. Supp. 2022 § 1-731.4 (criminal ban permitting abortion only to "save the life" of a woman "in a medical emergency").
- Petitioners argued the statutes violate the Oklahoma Constitution (art. II §§ 2 and 7) as protecting inherent and substantive due process rights; they also alleged vagueness and implied repeal of § 861 by § 1-731.4.
- The Court assumed original jurisdiction due to public importance and urgency post-Dobbs and framed the question whether the Oklahoma Constitution independently protects any right to terminate pregnancy.
- Holding: the Court recognized a limited constitutional right to terminate a pregnancy to preserve the woman’s life; it struck down § 1-731.4 as unconstitutional under strict scrutiny but upheld § 861 as consistent with that limited right.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Oklahoma Constitution protects any abortion right | Oklahoma Constitution (art. II §§ 2 & 7) secures an inherent/substantive due process right to terminate pregnancy independent of federal law | No express or implied abortion right in state Constitution; policy decisions belong to legislature/people | Court: limited right exists — abortion to preserve woman's life when physician reasonably certifies pregnancy endangers her life |
| Proper standard of review for laws limiting that right | Challenges to a fundamental inherent right require strict scrutiny | Post-Dobbs federal analysis applies (rational basis); state may defer to legislature | Court: strict scrutiny applies to laws that significantly impair the life-preserving right |
| Constitutionality of 63 O.S. Supp. 2022 § 1-731.4 (medical-emergency-only ban) | Unconstitutionally restricts life-preserving care by requiring actual emergency; vague and overbroad | Legislature has authority to define exception; statute rationally protects fetal life | Held unconstitutional and void: requires waiting for an actual emergency and fails strict scrutiny |
| Constitutionality and vagueness / repeal claims re: 21 O.S. § 861 | § 861 conflicts with § 1-731.4 and other statutes, creating vagueness; possibly repealed by implication | § 861 preserves a life-of-the-mother exception and remains operative; repeals by implication disfavored | Court: § 861 is constitutional as interpreted to permit abortions to preserve maternal life; not unconstitutionally vague; no repeal by implication (because § 1-731.4 is void) |
Key Cases Cited
- Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (U.S. 2022) (overruled Roe and Casey and returned abortion regulation to the states; federal standard is rational basis)
- Roe v. Wade, 410 U.S. 113 (U.S. 1973) (original recognition of a federal right to choose abortion under substantive due process)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (U.S. 1992) (refined federal abortion doctrine and adopted undue-burden test)
- Jobe v. State, 509 P.2d 481 (Okla. Crim. App. 1973) (Oklahoma Court of Criminal Appeals held territorial/state criminal abortion statutes unconstitutional under Roe)
- State ex rel. Oklahoma Bar Ass'n v. Porter, 766 P.2d 958 (Okla. 1988) (identifies that regulations significantly impairing inherent rights require strict scrutiny)
- Edmondson v. Pearce, 91 P.3d 605 (Okla. 2004) (standards for assuming original jurisdiction and discussion of scope of state constitutional inherent-rights review)