Oklahoma Supreme Court Issues Ruling on Abortion

By Tony Lauinger, State Chairman, Oklahomans For Life

Chief Justice M. John Kane IV

The Oklahoma Supreme Court on Tuesday handed down a narrow decision on abortion which has been strongly denounced by both pro-life advocates and promoters of abortion.

“We hold that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life,” the Court ruled in its 5-4 decision.

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 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 of the pro-life dissenters, 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 took the majority to task by discussing the living human being whom the majority totally ignored – the unborn child. “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.

While the decision was denounced by pro-life Oklahomans for the results-oriented lunge by the majority to create a contrived “constitutional right” to abortion upon which they undoubtedly hope to expand, the decision was simultaneously criticized harshly by the abortion industry for not having given them immediately what they want to restore: the ability once again to operate abortion facilities in Oklahoma.

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