Updated Mar 21, 2023 - Health

Oklahoma Supreme Court: State constitution grants "limited right" to abortion

A woman takes part in a nationwide abortion rights protest in New York on March 12, 2023. Photo: Kena Betancur/AFP via Getty Images

The Oklahoma Supreme Court ruled 5-4 on Tuesday that the state constitution guarantees a "limited right" to abortion, including in cases where there is a "reasonable" certainty pregnancy threatens a person's life.

Why it matters: Abortion providers filed a lawsuit last year challenging two laws in the state, a pre-Roe ban and another one that the governor signed into law in 2022. The court ultimately ruled that the 2022 ban interfered with the "inherent right to terminate a pregnancy to preserve the woman's life."

Context: Abortion providers had argued that abortion rights are protected by the state constitution, which says: "No person shall be deprived of life, liberty, or property, without due process of law."

  • The 2022 ban specifically states that a health provider cannot provide an abortion unless a person's life is "endangered by a physical disorder, physical illness or physical injury."
  • The pre-Roe ban is less strict, allowing abortions when the procedure is "necessary to preserve her life."

Driving the news: In its opinion, the court concluded that the provisions of the 2022 law are "much more invasive to a woman's right to terminate a pregnancy in order to preserve her life."

  • The opinion highlights a language discrepancy between "save the life of a pregnant woman" and "preserve her life," both of which are used in different state laws addressing abortion.
  • The judges say that the first phrase, "save the life of a pregnant woman," limits abortions to a pregnant woman "in a medical emergency" if her life "is endangered."

Details: That portion of the law, the opinion said, requires a woman to be in "actual and present danger" to obtain a "medically necessary abortion."

  • "We know of no other law that requires one to wait until there is an actual medical emergency in order to receive treatment when the harmful condition is known or probable to occur in the future," the opinion reads.
  • "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."

What they're saying: "We are disappointed that the Court declined to rule whether the state Constitution also protects the right to abortion outside of these circumstances," said Nancy Northup, president and CEO of the Center for Reproductive Rights, in a statement.

  • "The Oklahoma Supreme Court’s own precedent and the plain language of the Oklahoma Constitution guarantee the right to liberty and assure that a broad right to reproductive autonomy exists."

Editor's note: This article has been updated with comment from Nancy Northup, president and CEO of the Center for Reproductive Rights.

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