Case:  Oklahoma Call for Reproductive Justice v. Drummond

Court: Oklahoma Supreme Court

Citation: 526 P.3d 1123 (Okla. 2023)

Holding: Reviewing two state laws criminalizing most abortions, the Oklahoma Supreme Court determined that the state constitution protects an inherent right to an abortion to preserve a pregnant woman’s life.  Applying strict scrutiny, the court struck down one of the challenged laws, which only permitted an abortion if the pregnant person experienced a present medical emergency, but upheld the law providing an adequate exception if necessary to preserve the life of the pregnant person.  Id. at 1131-32.

Constitutional Claims: Due process clause, and section 2, which provides: “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

Key Reasoning: The court observed that laws banning certain terminations of pregnancy existed before statehood and persisted through adoption of the state constitution but always acknowledged a limited exception permitting an abortion to preserve life.  The court reasoned that the state’s “history and tradition have therefore recognized a right to an abortion when it was necessary to preserve the life of the pregnant woman,” protected by the Oklahoma due process provision or as a right encompassed under the state constitution’s protections for “inherent right to life” and “liberty.”  Id. at 1130. 

In a concurrence, Justice Kauger reasoned that the “right to preserve the life of the mother is deeply rooted in Oklahoma law,” even permitting abortion “at times when a woman had little or no say about” her body, property, civic participation, career, or dress—even when women could be legally beaten or raped by their husbands, could not own property or obtain credit if married, could not vote or serve on juries, could not work many jobs, and could not wear trousers in public spaces, women in Oklahoma had a right to terminate a pregnancy in order to preserve their life without a medical emergency.  526 P.3d 1123, 1133-44 (Kauger, J., concurring).

Case Status/Subsequent History: The Oklahoma Supreme Court’s recognition of this fundamental right has been relied upon in subsequent cases—the court has applied its decision in temporarily blocking restrictions requiring that doctors providing abortion be board certified obstetrician/gynecologists, that doctors prescribing medication abortion have hospital admitting privileges, and that an ultrasound be conducted 72 hours prior to an abortion.  See Oklahoma Call for Reprod. Just. v. Drummond, 543 P.3d 110 (Okla. 2023).