By John Michener
On 21 March 2023 the Supreme Court of the State Of Oklahoma (the Court) held in a 5-4 decision that Oklahoma’s most recent abortion law (63 O.S. § 1-731.4, passed as SB 612) “is void and unenforceable.” The criminality of abortion in Oklahoma is now governed primarily by two older statutes which had been superseded by the Court-voided one.
The first statute is 21 O.S. § 21-861, which reads: “Every person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, shall be guilty of a felony….”
The second statute is 63 O.S. § 63-1-733, which reads: “No woman shall perform or induce an abortion upon herself, except under the supervision of a duly licensed physician.”
These two statutes together sound like they would criminalize all elective abortions, and they would if enforced and adjudicated by normal citizens in the ways they were obviously intended when originally written and enacted. Unfortunately, the Court also took the opportunity of this opinion to codify new woke interpretations of the Oklahoma Constitution and statutes, intending to dramatically broaden and permit murder by abortion.
First, in a very twisted trick of interpretation, the Court has supposedly found a right to abortion in Article 2 Section 2 of the Oklahoma Constitution 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.”
Note this crazy analysis of the Court: “We hold that the Oklahoma Constitution [Article 2 Section 2] creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.” Justice Combs later explains that the constitutional right to life and liberty “would include a right to privacy and personal autonomy.” And of course they view abortion as a private and personal matter.
Furthermore, they have also reinterpreted the phrase “preserve her life” to no longer mean save her life in a medical emergency. Note the strained and contrived way in which they arbitrarily define 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….”
With this opinion the Court has foretold to the world how they will adjudicate abortion cases in Oklahoma. Remember the doctor’s note in high school that was a free pass for tardiness and absence? A women now needs no more than a doctor’s note that she is acting to “preserve her life” to literally get away with murder. The court will throw out any case against her or her doctor. This opinion was clearly designed to open the bloody floodgates in Oklahoma.
Chief Justice Kane in his well-written dissent said that “the majority engages in legal contortions…by fashioning Oklahoma Constitutional precepts of abortion law that simply do not exist. There is no expressed or implied right to abortion enshrined in the Oklahoma Constitution. In interpreting our Constitution, this Court must guard against the innate human temptation to confuse what is provided in the Oklahoma Constitution with what one wishes were provided.”
At this juncture it might be pointless to petition for further legislation, no matter how principled. Justices Kauger, Winchester, Edmondson, Combs, and Gurich have acted outrageously and will continue to do so. This merry-go-round will not stop until these tyrannical bullies are thrown off their playground thrones. We should ask Governor Stitt, Attorney General Drummond, and our State Representatives to put the Court in its place, to impeach these rogue judges.
OK Supreme Court’s Roe-like Ruling
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For Life & Liberty... Kenny Bob Tapp hails from the high plains of the Oklahoma panhandle ranchlands.