On March 21, 2023, the Oklahoma Supreme Court ruled that the state constitution protects the right to abortion in life-threatening situations, but declined to rule whether its constitution protects a broader right to abortion outside of those circumstances. Read more about the ruling below.

On July 1, 2022, the Center for Reproductive Rights and its partners filed a lawsuit in the Oklahoma Supreme Court seeking to block the state’s pre-Roe abortion ban, enacted in 1910, and a total abortion ban slated to take effect in August. The lawsuit asserts that the criminal abortion bans violate the Oklahoma state constitution, which protects inalienable rights and substantive due process. 

Oklahoma passed its first criminal abortion ban (Section 861) in 1910, more than 60 years before the U.S. Supreme Court recognized the right to abortion in Roe v. Wade. The pre-Roe criminal ban made performing an abortion a felony punishable by up to five years in prison, unless necessary to preserve the pregnant person’s life. The criminal ban was revived by Oklahoma Attorney General John O’Connor on June 24, the same day that the U.S. Supreme Court eliminated the constitutional right to abortion. 

The second criminal ban (S.B. 612) was enacted in April 2022, in anticipation of that ruling by the U.S. Supreme Court. The trigger ban prohibits all abortion care except in narrowly defined medical emergencies and makes abortion a felony punishable by up to 10 years in prison and/or a $100,000 fine. (The Center first challenged the trigger ban on April 28 in Oklahoma Call for Reproductive Justice et al. v. O’Connor, et al.)  

The lawsuit, filed July 1, asks the Oklahoma Supreme Court to strike down the criminal abortion bans, arguing that both bans both violate the Oklahoma Constitution, which protects inalienable rights and substantive due process, independent of federal law.  

Oklahoma Supreme Court Ruling

On March 21, 2023, the Oklahoma Supreme Court ruled that the state constitution protects the right to abortion in life-threatening situations, but declined to rule whether its constitution protects a broader right to abortion outside of those circumstances. The ruling leaves abortion care largely unavailable in the state. 

In its ruling, the Oklahoma Supreme Court recognized that “the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.” The court also said that doctors should be able to use their own medical judgment to determine whether to provide an abortion when a patient’s life is at risk “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.” 

The court’s ruling: 

• Struck down one of the state’s abortion bans, S.B. 612, as a violation of Oklahomans’ rights to access abortion care in life-threatening situations. The law, enacted in April 2022, prohibited all abortions except in narrowly defined medical emergencies and made abortion a felony punishable by up to 10 years in prison and/or a $100,000 fine.
• Upheld another abortion ban enacted in 1910, ruling that it protects abortion access in those dangerous situations. The law, Section 861, makes performing an abortion a felony punishable by up to five years in prison, unless necessary to preserve the pregnant person’s life. 

Center Attorneys: Rabia Muqaddam and Caroline Sacerdote 

Co-Counsel/Cooperating Attorneys: Dechert LLP and Planned Parenthood Federation of America 

Plaintiffs: Oklahoma Call for Reproductive Justice, Tulsa Women’s Reproductive Clinic, Dr. Alan Braid, Planned Parenthood Great Plains, and Planned Parenthood of Arkansas and Eastern Oklahoma.

Timeline:

Legal documents:

• Complaint in Oklahoma Call for Reproductive Justice v. O’Connor, 07.01.22
• Oklahoma Supreme Court ruling, 03.21.23

Read more:

• Press Release: Oklahoma Total Abortion Bans Challenged in Court, 07.01.22
• Oklahoma Supreme Court Rules the Right to Abortion is Protected in Life-Threatening Situations, 03.21.23