Yesterday, Oklahoma’s High Court ruled in Oklahoma Call for Reproductive Justice, et. al v. John O’Connor, in his official capacity as Oklahoma Attorney General, et al, that
the limited right to abortion is restricted to what is determined
necessary by a physician to pose a risk to the life of the mother. In
addition, the Court stated that any restrictions on such a
right must survive strict scrutiny under the Oklahoma Constitution.
The Justices declined to answer the question whether the state
constitution protects the right to an elective abortion.
The Court upheld one of the statutes, 21 O.S. 2021, §861, because it
does not restrict a right to terminate a pregnancy based on the life of
the mother. It said the other statute, 21 O.S. 2022, §1-731.4, was
unconstitutionally void and unenforceable because it did not pass strict
scrutiny.
The Court wrote, “We hold that the Oklahoma Constitution creates an
inherent right of a pregnant woman to terminate a pregnancy when
necessary to preserve her life. We would define this inherent
right to mean: a woman has an inherent right to choose to terminate her
pregnancy 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
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. Absolute certainty is not required, however, mere possibility
or speculation is insufficient” (emphasis added).
