Oklahoma Supreme Court Upholds Trigger Law with Caveat

Oklahoma Supreme Court Chief Justice M John Kane IV

On March 21, the Oklahoma Supreme Court issued a 5-4 decision that Oklahoma's trigger law banning abortion is constitutional. At the same time, the court created a constitutional right to abortion without the "absolute certainty" that the mother's life is in danger; though the risk must be greater than a "mere possibility." This subjective standard has drawn ire from pro-life advocates.

The Oklahoma Supreme Court primarily used the history and tradition of Oklahoma, rather than the text of the state constitution, to determine that the Oklahoma Constitution creates a right to abortion to protect the life of the mother (an exception that was included in the trigger law). The majority wrote,

“The law in Oklahoma has long recognized a woman’s right to obtain an abortion in order to preserve her life (“unless the same is necessary to preserve her lie”). Our history and tradition have therefore recognized a right to an abortion when it was necessary to preserve the life of the pregnant woman. This right can be viewed as protected by the Oklahoma due process section. It can also be viewed as a right protected under the inherent rights provided in article II, section 2 of the Oklahoma Constitution.

… We hold that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life. We would define this inherent right to mean: a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman’s physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy. Absolute certainty is not required, however, mere possibility or speculation is insufficient."

In his dissent, Oklahoma Supreme Court Justice Richard Darby 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.”

Justice Dustin Rowe's dissent pointed out that the majority's decision states, “We make no ruling on whether the Oklahoma Constitution provides a right to an elective termination of pregnancy…” Rowe wrote, “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.”

Tony Lauinger, the State Chairman of Oklahomans for Life, wrote "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. 

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