Restrictions

On June 24, 2022, Oklahoma revived the state’s pre-Roe ban through a trigger law, ^[1]S.B. 1555, 58th Leg., 2nd Reg. Sess. (Ok. 2022), amending 2021 Okla. Sess. Law Serv. Ch. 308. John M. O’Connor, Op. Att’y. Gen. (Jun. 24, 2022). following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization.^[2]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019). The pre-Roe ban criminalizes all abortions except when “necessary to preserve” the life of the pregnant person  and remains in effect. Oklahoma retains other total and early gestational bans that have been found to be unconstitutional by the Oklahoma Supreme Court: a total criminal ban is permanently enjoined as “void” and “unenforceable”^[3]S.B. 612, 58th Leg., 2nd Reg. Sess. (Ok. 2022), to be codified at Okla. Stat. tit. 63, § 1-731.4 enjoined by Okla. Call for Reproductive Justice et al. v. Drummond et al., Case No. 120,543 (Okla. … Continue reading and two bans enforced through private, civil lawsuits–a 6-week ban and a total ban– have been found unconstitutional.^[4]Okla. Stat. tit. 63, § 1-745.31; S.B. 1503, 58th Leg., 2nd Reg. Sess. (Ok. 2022)(6-week, private right of enforcement ban); H.B. 4327, 58th Leg., 2nd Reg. Sess. (Ok. 2022)(total, private right of … Continue reading

Oklahoma has not repealed other laws related to abortion. In 2021, Oklahoma enacted a near total ban^[5]OKLA. STAT. tit. 59, §§ 509(20), 637(14), which relates to unprofessional conduct, to make the performance abortion except in cases of life endangerment unprofessional conduct. and a six-week ban,^[6]OKLA. STAT. tit. 63, § 1-731.3 et seq. (prohibiting abortion upon detection of a “heartbeat” except in cases of life endangerment or “serious risk of substantial and irreversible … Continue reading both of which are currently enjoined.^[7]Okla. Call for Reprod. Just. v. O’Connor, No. 119,918, slip op. at 2 (Okla. Oct. 25, 2021). Oklahoma also has a twenty weeks post-fertilization ban with narrow exceptions.^[8]Okla. Stat. tit. 63, § 1-745.5. Oklahoma prohibits D&E procedures^[9]Okla. Stat. tit. 63, § 1-737.9(A). This ban was challenged in state court and subject to an injunction, Tulsa Women’s Reprod. Clinic, LLC v. Hunter, No. 118,292 (Okla. Oct. 23, 2019). In 2024, the … Continue reading  and abortions sought for reasons of sex selection.^[10]OKLA. STAT. tit. 63, § 1-731.2(B).

Oklahoma law continues to include requirements that pregnant people who seek abortion care must undergo a mandatory seventy-two-hour waiting period and biased counseling.^[11]Id. § 1-738.2(B); Nova Health Sys. v. Pruitt, 2012 OK 103, 292 P.3d 28, as corrected (Okla. 2012) (Oklahoma’s ultrasound requirement is permanently enjoined by court order.). Additionally, in 2021, Oklahoma enacted a requirement that pregnant people who seek a medication abortion—must be given an ultrasound to confirm gestational age seventy-two hours in advance.^[12]OKLA. STAT. tit. 63, § 1-756.1 et seq. These requirements are currently enjoined.^[13]Okla. Call for Reprod. Just., No. IN-119.918, slip op. at 2 (Okla. Oct 25, 2021). Oklahoma also limits public funding for, and private insurance coverage of, abortion.^[14]See, e.g., OKLA. STAT. tit. 63, § 1-741.1; OKLA. STAT. tit. 63, § 1-741.3. Oklahoma restricts people who self-manage their abortions.^[15]OKLA. STAT. tit. 63, § 1-733). On November 21, 2023, the Oklahoma Attorney General issued an opinion stating Oklahoma law “does not permit the charging of a pregnant” person with “a … Continue reading Oklahoma law generally requires that a parent or legal guardian be notified prior to a minor’s abortion^[16]OKLA. STAT. tit. 63, § 1-740.2(B)(1). and consent to it.^[17]Id. § 1-740.2(B)(3). Alternatively, a judge can approve a minor’s petition.^[18]Id. § 1-740.3.

Oklahoma retains targeted regulation of abortion providers (TRAP) laws related to facilities^[19] OKLA. ADMIN. CODE § 310:600-1-1 et seq. and reporting.^[20] Id. § 310:600-13-3; OKLA. STAT. tit. 63, §§ 1-756.8, 1-756.9 (enacting additional reporting requirements, which are currently enjoined. Okla. Call for Reprod. Just., No. IN-119,918, slip op. at 2). The legislature has not repealed permanently enjoined admitting privileges requirements.^[21] OKLA. STAT. tit. 63, § 1-748; Burns v. Cline, 2016 OK 122, 387 P.3d 348 (Okla. 2016). Oklahoma law continues to restrict the provision of abortion care to licensed physicians who are board certified in obstetrics and gynecology.^[22] OKLA. STAT. tit. 63, § 1-731. The board certification requirement is currently enjoined.^[23] Okla. Call for Reprod. Just., No. IN-119,918, slip op. at 2. Oklahoma still restricts providers from using telemedicine for the provision of abortion care.^[24]OKLA. STAT. tit. 63, § 1-729.1 (in effect); OKLA. STAT. Tit. 63, §1-729a, invalidated byOkla. Coalition for Reprod. Justice v. Cline, 441 P.3d 1145, 2019 OK 33 (Okla., 2019); OKLA. STAT. Tit. 63, … Continue reading Providers who violate Oklahoma’s abortion restrictions may face civil and criminal penalties.^[25] See, e.g., id. § 1-729.3 (civil penalty); id. § 1-729.2 (criminal penalty).

State Protections

The Oklahoma Supreme Court has held that the “Oklahoma Constitution protects a limited right to an abortion”^[26]Okla. Call for Reproductive Justice, Case No. 120,543 at 7. The Court held:

The Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life…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…Absolute certainty is not required, however, mere possibility or speculation is insufficient.^[27]Id. at 13.

The state remains hostile to abortion, Oklahoma’s Public Health Code states that it cannot be “construed as creating or recognizing right to abortion.”^[28]Okla. Stat. tit. 63, § 1-729.6.

Post-Roe Prohibitions

In 2022, Oklahoma amended its “trigger” ban in order to revive the state’s pre-Roe ban.^[29]Okla. Stat. tit. 21, § 861; S.B. 1555, 58th Leg., 2nd Reg. Sess. (Ok. 2022), amending 2021 Okla. Sess. Law Serv. Ch. 308 (S.B. 918). John M. O’Connor, Op. Att’y. Gen. (Jun. 24, 2022)..

Conclusion

Now that the Supreme Court has overturned Roe, Oklahoma is enforcing a pre-Roe ban that prohibits abortion entirely, except when “necessary to preserve” the life of a pregnant person.^[30]Okla. Stat. tit. 21, § 861.