By Constitution Staff

For the first time in state history, the Oklahoma Supreme Court, in a 5-4 decision, declared on March 21 that there is a “constitutional right” to abortion in the Oklahoma State Constitution.

While the ruling was limited to cases in which a mother’s life is in danger, the fear is that these five members are poised to open abortion to even more circumstances. The five justices who asserted an expanded “right” to abortion – beyond what the Oklahoma Legislature enacted just last year – were Yvonne Kauger, James Edmondson, Douglas Combs, Noma Gurich, and James Winchester. Winchester was the only one appointed by a Republican governor.

Justice Richard Darby, writing in dissent, wrote, “The majority opinion purports to ... find that – based on the Oklahoma statutory exception allowing abortions when necessary to preserve the life of the mother – Oklahoma has a constitutional due process right to abortion if necessary to preserve the life of the mother.”

In Oklahoma’s law – passed in the wake of the U.S. Supreme Court’s Dobbs ruling handed down last year, which overturned Roe v. Wade and returned jurisdiction on abortion laws to the states – a woman can obtain an abortion if a medical emergency arises that threatens a woman’s life. The Oklahoma Supreme Court, however, decided that the Legislature’s exception was too narrow, holding instead that the option to obtain an abortion should not be restricted to just a medical emergency. In other words – leave it up to a physician to decide if a continued pregnancy might lead to a situation in which a mother’s life is in danger.

Justice Dana Kuehn responded to the majority’s ruling, “It is not the job of this Court to create a right where none exists. Nor is it the Court’s job to make policy decisions.”

Justice Dustin Rowe noted the majority’s statement – “We make no ruling on whether the Oklahoma Constitution provides a right to an elective termination of pregnancy” – and warned this means the majority is open to expanding the “right” to an abortion further. “I can only read this language as an attempt by the majority to leave the door open to further constitutional challenges, and certainly not to resolve this issue.”

Justice John Kane was also critical of the majority. “The reason that the ‘life of the mother’ exceptions do not resolve the question is because the majority analysis wholly disregards the interests of the unborn. The unborn have no voice, say, or consideration in the opinion of the majority ... The Court should adhere to the Constitution give to us, not craft what we believe to be a ‘better’ Constitution.”

Tony Lauinger, the state chairman of Oklahomans for Life, commented on the decision. “The worst of it is, in determining whether an abortion is ‘necessary to preserve the life of the mother,’ the Court has created a subjective standard which is virtually as broad as the health exception in Doe v. Bolton and which allows the abortionist to be as arbitrary as he wants in justifying an abortion.”

For the past few years, prior to the 5-4 Dobbs decision of the U.S. Supreme Court – returning the question of abortion to the states, where it was until the 1973 Roe v. Wade decision – there have been some opponents of abortion advocating that the governor and the Legislature simply defy the Supreme Court’s Roe decision through nullification. Some warned, however, that the sad reality was that the Oklahoma High Court was more inclined to favor abortion on demand than the federal High Court, and that any law outlawing abortion passed by the Oklahoma Legislature might be struck down by the Oklahoma Supreme Court.

That is now proving to be the case.

Other threats to an unborn child’s right to life include the possibility of an initiative petition effort by pro-abortion forces to expand legal abortion beyond the restrictions placed on the grisly practice by the Legislature last year. This has happened in other states.

Because of this concern, Oklahomans for Life, led by Lauinger, pushed Senate Bill 834 by Senator Julie Daniels, which would have allowed abortion in cases of rape or incest. Lauinger’s explanation was that broadening the exceptions would make it less likely that such a petition would be successful.

However, there is no guarantee that weakening Oklahoma’s pro-life laws would satisfy the pro-abortion lobby in the state. While Lauinger and Daniels are no doubt sincere in their approach, others who oppose abortion express concern about the unborn children who would be killed via abortion, simply for having been conceived in such situations. The bill was approved by a Senate committee, but never received a vote by the full Senate and is dead for this year.

Thus, those who oppose abortion are divided on the best approach to take in Oklahoma.

One area that the Oklahoma law is considered inadequate in is in stopping the use of “abortion pills.” With surgical abortion mostly outlawed in Oklahoma, taking the life of an unborn child by pills is the avenue through which unborn children are now being killed, and legislators who oppose such killing should unite to take effective measures against abortion pills.

But, the recent decision by the Oklahoma Supreme Court, there may very well be five members on that tribunal, that would find a right to chemical abortions.