Of interest, for obvious reasons.
A divided Oklahoma Supreme Court on Tuesday overturned a portion of the state’s near-total ban on abortion, ruling women have a right to abortion when pregnancy risks their health, not just in a medical emergency.
It was a narrow win for abortion rights advocates since the U.S. Supreme Court struck down Roe v. Wade.
The court ruled that a woman has the right under the state Constitution to receive an abortion to preserve her life if her doctor determines that continuing the pregnancy would endanger it due to a condition she has or is likely to develop during the pregnancy. Previously, the right to an abortion could only take place in the case of a medical emergency.
“Requiring one to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest,” the ruling states.
In the 5-4 ruling, the court said the state law uses both the words “preserve” and “save” the mother’s life as an exception to the abortion ban.
“The language ‘except to save the life of a pregnant woman in a medical emergency’ is much different from ‘preserve her life,'” according to the ruling.
“Absolute certainty,” by the physician that the mother’s life could be endangered, “is not required, however, mere possibility or speculation is insufficient” to determine that an abortion is needed to preserve the woman’s life, according to the ruling.
The court, however, declined to rule on whether the state Constitution grants the right to an abortion for other reasons.
The court ruled in the lawsuit filed by Planned Parenthood, Tulsa Women’s Reproductive Clinic and others challenging the state laws passed after the U.S. Supreme Court overturned the landmark Roe v. Wade decision that legalized abortion.
I trust the parallel to the Texas lawsuit is clear. Slate adds some details.
Oklahoma outlaws abortion through multiple statutes, both civil and criminal, and these bans became enforceable after the U.S. Supreme Court overturned Roe v. Wade last year. One of the statutes contains an ostensible exception for the “life of a pregnant woman.” But as the court explained on Tuesday, this exception is extraordinarily narrow: It permits termination only when the patient is “in actual and present danger” of death. According to the statute, it is not enough for a doctor to determine that the pregnancy will kill her at some point in the future; that peril must be imminent. If a doctor provides an abortion before the patient is at sufficient risk of death, they face a $100,000 fine and 10 years’ imprisonment.
Reproductive rights advocates challenged this ban under the Oklahoma Constitution. Their lawsuit was risky: Five justices of the Oklahoma Supreme Court were appointed by Republicans while four were appointed by Democrats. But GOP appointee James R. Winchester crossed over to create a 5–4 majority in support of “a limited right to an abortion.” The majority found that this right was supported by two provisions of the state constitution that grant “all persons” the right to “life” and “liberty.” Reviewing Oklahoma’s history, the majority explained that the state’s abortion regime had always “recognized a woman’s right to obtain an abortion in order to preserve her life,” from before statehood through admission to the union and right on up until 2021, when the present law was enacted.
Because the right to abortion to preserve the patient’s life is “deeply rooted” in Oklahoma history, the majority held, any restriction on that right is subject to strict scrutiny, bolstered by a compelling state interest. “Requiring one to wait until there is a medical emergency,” however, “does not serve a compelling state interest” because it “would further endanger the life of the pregnant woman.” The majority therefore declared that portion of the law “void and unenforceable” and announced a new standard: Abortion is permitted whenever a doctor has “determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life.” That danger may arise from “the pregnancy itself” or “a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy.”
The scope of this standard is not entirely clear, but it suggests that a patient can undergo an abortion if the doctor determines there will be a threat to her life at some future point “during the pregnancy.” This standard is different from that in Texas, where doctors are waiting until pregnant patients are on death’s door rather than terminating when conditions emerge that could be fatal later in the pregnancy. As the majority noted, “absolute certainty” that the condition would kill a patient if untreated “is not required,” though “mere possibility or speculation is insufficient.” In a long concurrence, Justice Yvonne Kauger, joined by Justices James Edmondson and Doug Combs, tried to clarify the new rule. A physician, she wrote, need not “wait until their patient has a seizure, a stroke, experiences multiple organ failure, goes septic, or goes into a coma” before terminating a dangerous pregnancy. The reasonable likelihood of life-threatening conditions justifies an immediate abortion.
Kauger pointed to a new Texas lawsuit to illustrate what this standard does not require. The plaintiffs in that case were forced to wait until they suffered sepsis, hemorrhage, and other horrific ailments before doctors would terminate. Such a narrow exception, Kauger wrote, affords women “fewer rights than a convicted murderer on death row,” imposing “a death sentence” without “due process or any provision for clemency or pardon.” (Kauger also included a long overview of women’s near-absolute denial of rights through most of American history, noting that Oklahoma’s historical abortion laws were passed at a time when men could legally beat their wives and women could not vote or serve in office.)
As that story notes, the Supreme Court of North Dakota allowed a block on its state’s abortion ban to remain in place while a lawsuit over it plays out. It too concluded that the state constitution provided for “a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances”. Note that these are narrow exceptions to those states’ bans, but they do represent a step forward for abortion access post-Dobbs. Just having doctors not feel like their own lives are at risk when making this decision should make a difference.
There’s an irony here in that Oklahoma was one of five states to pass an anti–Obamacare “health care freedom” amendment to their state constitution, which has now been used to argue against state abortion bans in Ohio and Wyoming as well. (Wyoming just passed a law to ban abortion pills; we’ll have to see what happens when that inevitably gets challenged.) A lot of this litigation is still ongoing so it’s hard to say exactly where we’ll end up, and these states could always try to amend those amendments to craft an abortion exception. But for now at least, there’s a path forward in some red states to at least allow for minimal access.
None of this bears directly on Texas, of course. Each state has their own laws, Texas did not amend its constitution as those five other states did, and as we well know Supreme Court justices of all stripes can be and are political animals. I make no prediction about what will happen with the litigation here. What we do know is that similar lawsuits have found success elsewhere. I’ll take my hope where I can get it.
