Another Red-State Supreme Court Finds a Constitutional Right to Lifesaving Abortions

[In It to Win It]

Slate

No payall

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.

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).”

[lindysalsagal]

1. Better than nothing, but not nearly good enough.

[PortTack]

4. Yes...when a pregnancy goes south it's terrifying for these woman.

[AleksS]

2. This got me thinking

If abortions could be performed with guns, there’d be a stand your ground argument that could be made, and that only requires the pregnant woman to have some fear for her well being…

[Lettuce Be]

3. They don't seem to understand that if the mother dies the unborn dies as well

So, you're basically saying it's ok, so long as they both die. Nonsense.

Also, the possibility of penalties or being dragged into court still exists for the physicians, so don't see how this is going to make a huge difference.