Oklahoma

Hostile

Summary

If Roe is weakened or overturned:

Oklahoma will likely try to prohibit abortion. Oklahoma has two pre-Roe bans on abortion that, if enforced, would prohibit abortion in nearly all situations. Numerous medically unnecessary restrictions already make it difficult to access abortion care in the state.

Primary Content

Restrictions

Oklahoma generally prohibits abortion after twenty weeks post-fertilization with narrow exceptions.1 It also prohibits the D&E procedures, a ban that is currently enjoined,2 and D&X3 procedures and abortions sought for reasons of sex selection4 Pregnant people who seek abortion care must undergo a mandatory seventy-two-hour waiting period and biased counseling.5 Oklahoma also limits public funding for, and private insurance coverage of, abortion.6 Oklahoma criminalizes people who self-manage their abortions.7 Oklahoma law generally requires that a parent or legal guardian be notified prior to a minor’s abortion8 and consent to it.9 Alternatively, a judge can approve a minor’s petition.10

In 2020, Oklahoma exploited the COVID-19 pandemic in an attempt to ban abortion care, issuing an executive order11 that purported to suspend procedures deemed “elective” by the state. This order contradicted major medical groups in the United States and around the world, which agree that abortion is essential and time sensitive health care.12 The Western District Court of Oklahoma enjoined the order.13

Oklahoma’s targeted regulation of abortion providers (TRAP) laws include requirements related to facilities14 and reporting.15 The legislature has not repealed permanently enjoined admitting privileges requirements.16 Oklahoma law restricts the provision of abortion care to licensed physicians.17 Oklahoma restricts providers from using telemedicine for the provision of abortion care.18 Providers who violate Oklahoma’s abortion restrictions may face civil and criminal penalties.19

Protections

Oklahoma law does not include express constitutional or statutory protections for abortion. To the contrary, Oklahoma’s Public Health Code states that it cannot be “construed as creating or recognizing right to abortion.”20

Laws that could be enforced if Roe v. Wade is limited or overturned

Oklahoma has unenforced pre-Roe bans.21

Conclusion

If Roe v. Wade is limited or overturned, Oklahoma will likely seek to enforce its pre-Roe bans.

  • 1. OKLA. STAT. tit. 63, § 1-745.5.
  • 2. Id. § 1-737.9 (A); Tulsa Women’s Reproductive Clinic, LLC v. Hunter, No. CV-2015-1838 (Okla. Nov. 6, 2019).
  • 3. OKLA. STAT. tit. 21, § 684 (A).
  • 4. OKLA. STAT. tit. 63, § 1-731.2 (B).
  • 5. 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.).
  • 6. See, e.g., OKLA. STAT. tit. 63, § 1-741.1; OKLA. STAT. tit. 63, § 1-741.3.
  • 7. OKLA. STAT. tit. 63, § 1-733. See also OKLA. STAT. tit. 21, § 862.
  • 8. OKLA. STAT. tit. 63, § 1-740.2(B)(1).
  • 9. Id. § 1-740.2(B)(3).
  • 10. Id. § 1-740.3.
  • 11. Governor Kevin Stitt, Fourth Amended Executive Order 2020-07 (Mar. 24, 2020).
  • 12. See Joint Statement on Abortion Access During the COVID-19 Outbreak, AM. COLL. OBSTETRICS & GYNECOLOGY (Mar. 18, 2020), https://www.acog.org/news/news-releases/2020/03/joint-statement-on-abortionaccess-during-the-covid-19-outbreak; Disaster Risk Management for Health, Sexual and Reproductive Health, WORLD HEALTH ORG. (May 2011), https://www.who.int/hac/events/drm_fact_sheet_sexual_and_reproductive_health.pdf; Safe Abortion Care in the Minimum Initial Service Package (MISP) for Sexual and Reproductive Health in Humanitarian Settings, INTERAGENCY WORKING GRP. (Dec. 19, 2019), https://iawg.net/resources/safe-abortion-care-in-the-minimum-initialservice-package-misp-for-sexual-and-reproductive-health-in-humanitarian-settings.
  • 13. S. Wind Women's Ctr. LLC v. Stitt, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020), appeal dismissed, 808 F. App'x 677 (10th Cir. 2020).
  • 14. OKLA. ADMIN. CODE § 310:600-3-1 et seq.
  • 15. Id. § 310:600-13-3.
  • 16. OKLA. STAT. tit. 63, § 1-748; Burns v. Cline, 2016 OK 122, 387 P.3d 348 (Okla. 2016).
  • 17. OKLA. STAT. tit. 63, § 1-731.
  • 18. OKLA. STAT. ANN. tit. 63, § 1-729.1
  • 19. See, e.g., id. § 1-729.3 (civil penalty); id. § 1-729.2 (criminal penalty).
  • 20. Id. § 1-729.6.
  • 21. OKLA. STAT. tit. 21, §§ 861, 862, invalidated by Jobe v. State, 1973 OK CR 51, 509 P.2d 481 (Okla. Crim. App. 1973). Likewise, in Henrie v. Derryberry, the court refused to enjoin the statutes, but it ordered sections 861 and 862 “void and unenforceable,” as applied to “the intervenors and all others similarly situated and residing in the State of Oklahoma…” 358 F. Supp at 719, 724 (N.D. Okla. 1973).