OKPOLICY.ORG
House Bill 1008 by Rep. Jim Olsen, R-Roland, would permit abortions in Oklahoma in cases where an abortion is required to save the life of the mother. The bill passed out of the House Health and Human Services Oversight Committee last Wednesday on a partisan 9-3 vote. Olsen, who has made a career of filing anti-abortion legislation during his time in the legislature, said he filed the bill as a “replacement” for Senate Bill 612.
Senate Bill 612 by Sen. Nathan Dahm, R-Broken Arrow, and Olsen passed and became law in 2022. The statute provides that an abortion can only be performed where there is a “medical emergency” making an abortion “necessary to preserve the life of a pregnant woman…” SB 612 was signed by Gov. Kevin Stitt a couple of months before the 2022 U.S. Supreme Court decision in Jackson v. Dobbs Women’s Health Organization. That decision overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. The court ruled there is no federal constitutional right to abortion.
The Dobbs ruling left open the question of whether Oklahoma’s state constitution independently protects the right to an abortion. To determine whether an inherent constitutional right exists, the Dobbs Court looked to history and tradition and found that no such history and tradition would support the development of a federal constitutional right to abortion.
SB 612 was among many bills passed in recent years in defiance of the Roe and Casey rulings, and the law it created became the test case in 2023 to determine the right to an abortion in Oklahoma after Dobbs reversed those cases.
To decide the constitutionality of SB 612, the Oklahoma Supreme Court, in Oklahoma Call for Reproductive Justice v. Drummond, followed the Dobbs Court reasoning and looked to Oklahoma history and tradition to decide if an Oklahoma constitutional right to an abortion exists. Citing Title 21 Oklahoma Statutes Section 861, the court found that both territorial and state statutes, since before statehood, had provided for an abortion to preserve the life of the pregnant woman.
In view of this deeply rooted history and tradition, the court found the Oklahoma Constitution protects the right of a woman to terminate her pregnancy in order to preserve her life.
The court ruled SB 612 is unconstitutional because it imposed an additional requirement for a medical emergency. The court said that once 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, she has a right to terminate the pregnancy without the need to wait for an emergency to exist.
This seems like common sense. Few Oklahomans, I think, would expect a woman to be legally required to forfeit her own life to give birth, nor should she be required to wait until an emergency exists, once it is medically determined that a termination of the pregnancy is necessary to preserve her life.
HB 1008 goes a step further than simply codifying the Oklahoma Call for Reproductive Justice ruling. In addition, it provides that “the person performing or attempting to perform an abortion shall prioritize preserving both the life of the pregnant woman and the life of the baby, if however, the person judges the birth of the baby to be a threat to the life of the pregnant woman, then an abortion may be performed to preserve the life of the pregnant woman.”
This requirement may add an element of confusion in Oklahoma abortion law sufficient to prompt a challenge of HB 1008 if it becomes law. The question will arise, exactly when has a doctor done enough to preserve “both the life of the pregnant woman and the baby” as opposed to simply preserving the life of the mother?
If the matter is litigated it will likely be more a political issue than a legal one. Oklahoma courts are certainly no strangers to politically sensitive abortion bills passed by the legislature.
