In a 6-3 decision, the Supreme Court of Oklahoma found two anti-abortion laws unconstitutional on May 31, 2023, for failing to make exceptions for the preservation of maternal life. This opinion came roughly one year after the Supreme Court of the United States held in Dobbs v. Jackson Women’s Health Organization that “[t]he Constitution [of the United States] does not confer a right to abortion.”
Since Dobbs, abortion-rights activists have shifted their attention to state courts and state constitutions to secure access to abortion. KFF has tracked constitutional challenges “[i]n Ohio, Oklahoma, Georgia, and Utah, among others.”
Abortion-rights activists have made “claims that state constitutional protections, such as liberty, due process, and privacy rights encompass a right to abortion.” The privacy argument prevailed in South Carolina, whose “Supreme Court struck down the state’s 6-week ban as violating the state’s constitutional privacy provision.”
Oklahoma Governor Kevin Stitt signed the stricken S.B. 1503, also known as the Oklahoma Heartbeat Act, and H.B. 4327 into law on May 3 and May 25, 2022, respectively. S.B. 1503 restricted abortion after fetal heartbeat detection, whereas H.B. 4327 restricted all abortions.
The Supreme Court of Oklahoma based its decision on one of its earlier rulings, handed down on March 21, 2023, finding “a limited right to an abortion” under the Oklahoma Constitution. That decision, Oklahoma Call for Reproductive Justice v. Drummond (OCRJ I), held “that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”
Relying on OCRJ I and with little commentary, the Supreme Court of Oklahoma invalidated S.B. 1503 and H.B. 4327 in its May 31 Oklahoma Call for Reproductive Justice v. State of Oklahoma (OCRJ II). The court reiterated its finding in OCRJ I and invalidated the laws under stare decisis, the principle that courts should generally rule in accordance with precedent when presented with similar legal and factual issues, only overruling that precedent in grave situations.
The majority opinion in OCRJ II was an unsigned opinion joined by Justices Kauger, Winchester, Edmondson, Combs, and Gurich, the original five justices who found “a limited right to an abortion” under the Oklahoma Constitution in OCRJ I. Justice Darby, who dissented in OCRJ I, concurred in OCRJ II, citing stare decisis but reiterating his dissent in OCRJ I.
Chief Justice Kane, Vice-Chief Justice Rowe, and Justice Kuehn, all of whom dissented in OCRJ I, dissented in OCRJ II. Kane, whom Kuehn joined, rejected the majority’s application of stare decisis, arguing S.B. 1503 and H.B. 4327 presented legal and factual issues not before the court in OCRJ I. Kane’s dissent went further, stating that even if stare decisis applied in OCRJ II, he would still dissent for the reasons he gave in OCRJ I.
Rowe’s dissent argued stare decisis did not apply to S.B. 1503, which he found differed from the law at issue in OCRJ I, because S.B. 1503 empowered physicians to determine whether a medical emergency existed, a feature absent from the law at issue in OCRJ I. This difference, Row argued, rendered S.B. 1503 acceptable under OCRJ I. Rowe would have upheld H.B. 4327 for the reasons stated in his OCRJ I dissent and believed the issues presented in OCRJ II were “political questions, which are better resolved by the people via our democratic process.”
Kuehn penned a short dissent signaling her opposition for the same reasons she gave in her OCRJ II dissent.
S.B. 1503 and H.B. 4327 provided for “enforce[ment] exclusively through . . . private civil actions,” under which a private citizen could seek an injunction, statutory damages of $10,000 or more, “[n]ominal and compensatory damages if the plaintiff has suffered harm from the defendant’s conduct including but not limited to loss of consortium and emotional distress,” and “[c]ourt costs and attorney fees.”
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