Narrow Right to Abortion in State Constitution Divined and Reaffirmed by Oklahoma Supreme Court

In Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court held that there is no federal constitutional right to abortion.[1] The U.S. Constitution leaves that question to the voters of each state and to their elected representatives.[2] But the Oklahoma Supreme Court has concluded that the abortion question is, at least in part, one that the state constitution speaks to. This conclusion follows from two similar and recently decided cases.

In the first, Oklahoma Call for Reproductive Justice v. Drummond[3] (a 5-4 per curiam opinion), the court held that the state constitution’s due process[4] and “inherent rights”[5] clauses establish “an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”[6] Having recognized the right, the court then had to decide how the right interacted with two laws that restricted abortions. The first law included an exception when “necessary to preserve [the mother’s] life.”[7] And the second included an exception when necessary “to save the life of a pregnant woman in a medical emergency.”[8]

The court found that the first statute was constitutional because the language “preserve her life” was the same as the right that the court recognized.[9] It held the second unconstitutional, however, because the language requiring a “medical emergency” was too restrictive.

In the second case, Oklahoma Call for Reproductive Justice v. State (a 6-3 per curiam decision), the court applied its Drummond rule to two more statutes that restrict abortion.[10] The laws at issue in State use the “medical emergency” language that the court struck down in Drummond.[11] Thus, for the majority, the case was resolved by a straightforward application of Drummond.

Justice Dana Kuehn agreed that Drummond and State were substantially identical and simply renewed her Drummond dissent.[12] Justice Richard Darby also thought the cases raised the same issues, but he said that although he dissented in Drummond, the principle of stare decisis compelled him now to concur.[13]

Chief Justice M. John Kane dissented “for the reasons given” in his Drummond dissent, but he also said, without explanation, that the cases “present different legal and factual issues.”[14]

Only Vice-Chief Justice Dustin P. Rowe had anything new to say.[15] He saw “an important difference” between the statutes at issue in the two cases. The statute found unconstitutional in Drummond established a definition of “medical emergency” that did not allow physicians to exercise their discretion in determining whether an emergency existed.  The statute at issue in State, however, does give physicians that discretion.[16] In his view, this discretion ought to ameliorate the concerns that the majority expressed in Drummond.[17] He also accused the majority of rhetorical sleight of hand. The majority in State described the laws at issue as “even more extreme” than the one struck down in Drummond. But, Rowe noted, the court did not find that the law in Drummond contained extreme language.[18] Rowe found this rhetorical move “unsettling.”[19]

The practical effect of these decisions on abortion law will be relatively small. The legislature could amend the laws to substitute the “preserve the life” language for the “medically necessary” language and leave the restrictions otherwise unchanged. Still, these two decisions may herald a new era of judicial activism in Oklahoma.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].