The Oklahoma Supreme Court ruled on Tuesday that its state constitution guarantees the right to terminate a pregnancy that threatens a patient’s life. Its 5–4 decision invalidated a provision of Oklahoma’s near-total abortion ban and preserved the possibility of finding a more expansive right to reproductive autonomy in a future case. The ruling allows physicians to provide an abortion “at any point in the pregnancy” whenever they determine, with “a reasonable degree of medical certainty,” that denying care would “endanger the woman’s life.” As three justices elaborated in a concurrence, this standard should protect patients from the trauma inflicted on pregnant Texans denied emergency abortions.
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.)
Each dissenting justice wrote a separate opinion, and remarkably, not one of them denied that Oklahoma’s abortion ban subjected patients to the possibility of death. Instead, as Chief Justice M. John Kane IV wrote, the dissenters believed that courts must consider “the interest of the unborn.” Fetuses “have no voice, say, or consideration” in the majority’s analysis, he complained. The task of “balancing the developing life of the unborn against the life of the mother” must be resolved by the legislature, not by the judiciary. Or, as Justice Dana Kuehn put it: “Under some rare and terrible circumstances, people’s rights to life may conflict.” How can judges “balance” a fetus’ right to life against its mother’s? They cannot, Kuehn concluded, and so must leave the question to “the people (through their elected representatives).”
The Oklahoma Supreme Court is now the second Republican-controlled state this month to find a right to lifesaving abortions under its state constitution, following on the heels of the North Dakota Supreme Court last week. Both decisions give lie to the claim, often made by anti-abortion advocates, that post-Roe bans do not imperil patients’ lives.
Importantly, both decisions also preserved the possibility of a future ruling that establishes a broader right to abortion access. The Oklahoma Supreme Court expressly declared that it made “no ruling on whether an elective abortion” is protected by the state constitution. But Kauger’s concurrence strongly suggested that it is in light of the historical role of abortion bans in denying women equal citizenship. In dissent, Vice Chief Justice Dustin Rowe warned that the majority’s holding was designed “to leave the door open to further constitutional challenges, and certainly not to resolve this issue.” That’s probably true. But a broader decision down the road would require the two more centrist justices to stick with the three progressives. And all five justices would have to remain on the court and win their six-year retention elections, lest they be replaced by Republican Gov. Kevin Stitt. (Liberal lion Kauger is 85 years old.)
All that, though, is for another day. Right now the court has vindicated the right to protect oneself against a pregnancy that could result in death. It is unfortunate that the task of safeguarding such a fundamental right in Republican-controlled states has fallen to the narrowest majorities in state courts, which are exposed to more political interference than the federal judiciary. But that is where SCOTUS has left us, and in post-Roe America, proponents of individual liberty, medical integrity, and basic decency must take what they can get.
