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State Supreme Court says Oklahoma Constitution includes ‘inherent right’ to certain abortions. State Legislature fails to pass protective measure before deadline

by | Apr 3, 2023

By Tony Lauinger, State Chairman, Oklahomans for Life

Tony Lauinger Vice President of National Right to Life and State Chairman, Oklahomans For Life

Tulsa, Oklahoma — Regrettably, collective efforts to strengthen Oklahoma’s defense against a looming initiative petition from the abortion industry to inject a right to unlimited abortion on demand in our state Constitution failed to result in the passage of Senate Bill 834 prior to the legislative deadline the end of this week.

S.B. 834 remains stuck in committee.

Our sincere thanks to so many of you who contacted members of the state Senate and House of Representatives urging support for the bill. Some of you did so repeatedly. Your efforts on behalf of Oklahoma’s unborn children are deeply appreciated.

We are especially grateful for the leadership of Senator Julie Daniels in seeking to erect a firewall against the pro-abortion attack that is coming.

Sen. Daniels is to be greatly commended for her courage, her vision, and her dedication to protecting our human family’s most vulnerable little members. (Her email address, if you’d like to thank her, is Julie.Daniels@oksenate.gov.)

In another major development in late March, the Oklahoma Supreme Court — for the first time in our state’s 116-year history — has discovered a “constitutional right” to abortion in the Oklahoma Constitution.

The five-person majority on the Court limited their ruling for now to circumstances where a mother’s life is in danger, but it is evident that they hope to expand this “inherent right” to elective abortions in the future.

The five-person pro-abortion majority consisted of Justices Yvonne Kauger, James Edmondson, Douglas Combs, Noma Gurich, and James Winchester.

Four justices dissented from the 5-4 ruling.

Justice Dana Kuehn, in her dissent, wrote, “It is not the job of this Court to create a right where none exists. Nor is it the Court’s job to make policy decisions.”

Justice Richard Darby, in his dissent, wrote, “The majority opinion purports to…find that – based on the Oklahoma statutory exception allowing abortions when necessary to preserve the life of the mother – Oklahoma has a constitutional due process right to abortion if necessary to preserve the life of the mother.”

Chief Justice John Kane put that point into sharp focus: “Indeed, it takes more to be a fundamental right than merely to be exempted from criminal prosecution.”

The fourth pro-life dissenter, Justice Dustin Rowe, called attention to the pro-abortion majority’s statement that “We make no ruling on whether the Oklahoma Constitution provides a right to an elective termination of pregnancy…,” and then he observes, “I can only read this language as an attempt by the majority to leave the door open to further constitutional challenges, and certainly not to resolve this issue.”

Justice Kane criticized the majority by focusing on the living human being whom the majority totally ignored – the unborn child. He wrote:

“The reason that the ‘life of the mother’ exceptions do not resolve the question is because the majority analysis wholly disregards the interest of the unborn. The unborn have no voice, say, or consideration in the opinion of the majority…. The Court should adhere to the Constitution given to us, not craft what we believe to be a ‘better’ Constitution.”

The worst of it is, in determining whether an abortion is “necessary to preserve the life of the mother,” the Court has created a subjective standard which is virtually as broad as the health exception in Doe v. Bolton and which allows the abortionist to be as arbitrary as he wants in justifying an abortion.

While the decision is viewed by pro-life Oklahomans as a disgraceful, results-oriented plunge by the majority to create a contrived “constitutional right” to abortion – upon which they undoubtedly hope to expand – the decision has been simultaneously criticized by the abortion industry for not immediately having given them what they want: the ability once again to carry out elective abortions in Oklahoma. (emphasis added)

Editor’s note. This appeared in the Oklahoma City Sentinel.

Categories: State Legislation
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