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Oklahoma State Supreme Court Finds 2 Anti-Abortion Laws Unconstitutional

A statute from 1910 banning nearly all abortions remains on the books.

The Oklahoma state Supreme Court has found two state laws restricting abortions to be unconstitutional and in violation of a standard established by the court earlier this year.

The 6-3 ruling found two laws, both of which passed in 2022, to be unlawful. Senate Bill 1503 was a so-called “fetal heartbeat” ban, a measurement of fetal development that medical experts say is a misnomer as well as an improper measure for determining when or whether an abortion should happen. House Bill 4327, meanwhile, banned abortions from the moment of conception, with exceptions to save a pregnant person’s life or in cases of rape or incest, but only when they had been reported to the police.

Both statutes had civil penalties in place for providers that violated them, allowing state residents to sue those who performed the procedure, effectively placing a block on access to abortion throughout the state.

A previous ruling by Oklahoma’s highest court found that highly restrictive abortion bans violated the state constitution, which provides an “inherent right of a pregnant [person] to terminate a pregnancy when necessary to preserve [their] life.” These two statutes violated that standard, the court ruled.

The ruling does not make abortion legal in the state. Instead, an abortion statute from 1910, which was in place before Roe v. Wade recognized abortion rights throughout the U.S., will be enforced, due to the federal Supreme Court upending Roe last summer, a statement by Attorney General Gentner Drummond’s office said. That statute bans almost all abortions, and has criminal rather than civil penalties, including a $5,000 fine and jail time for those who provide abortion services.

Still, the ruling on Wednesday is being viewed positively, as some observers note that it’s an important step toward the state Supreme Court likely finding the 1910 statute unconstitutional, too, sometime in the future.

“The Oklahoma AG appears to believe that abortion remains illegal in the state under a 1910 criminal ban, which tees up another challenge at the Oklahoma Supreme Court. It strikes me as … unlikely that this court will allow that law to be enforced,” said senior Slate writer Mark Joseph Stern on Twitter.

Priya Desai, board member of Oklahoma Call for Reproductive Justice, responded to the ruling on Wednesday by stating:

While it is disappointing that abortion care remains largely out of reach, the state Supreme Court’s decision today confirms that pregnant Oklahomans in life-threatening situations should get the care they need. Too many pregnant people in my state have been turned away from care despite facing grave threats to their health and lives. But the fight is not over. We will keep working towards a reality where abortion is available in our home communities once again.

Polling in the state shows that most residents oppose total bans on abortion. When it became clear last May, through a leaked draft opinion by the federal Supreme Court, that Roe would be overturned, a statewide poll found that only 31 percent of residents wanted a total abortion ban like the 1910 law to be enforced, while 55 percent of respondents in the poll said they were against such bans.

Abortion rights advocates had planned last fall to push for a ballot initiative that would have codified abortion rights in Oklahoma’s constitution. However, the group that had planned to do so has since announced it would be delaying those efforts in order to wait for a better time to gather signatures. They have not yet started that process.

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