Oklahoma top court finds right to abortion to preserve mother's life

[March 22, 2023]  By Brendan Pierson

(Reuters) -Oklahoma's highest court on Tuesday ruled the state's constitution protects a right to an abortion to preserve the mother's life, and that a doctor does not need to wait until there is an immediate medical emergency to perform one.

In a 5-4 ruling, the Oklahoma Supreme Court found that a law passed last year that allows life-saving abortion only when there is a "medical emergency" violates the "inherent right to life" under the state constitution.

The court did not strike down a separate 1910 abortion ban with an exception for preserving the mother's life that does not require a medical emergency. It also did not address whether the state constitution includes a right to abortion under any other circumstances.

Oklahoma began enforcing both laws after the U.S. Supreme Court last June overturned its landmark 1973 Roe v. Wade ruling, which had guaranteed abortion rights nationwide. Planned Parenthood and other abortion providers sued to challenge the laws.

"While we are relieved Oklahomans facing life-threatening situations have a right to care, the decision to maintain the state's pre-Roe ban is unconscionable," Planned Parenthood President Alexis McGill Johnson said in a statement.

Oklahoma Attorney General Gentner Drummond said in a statement: "We respect the court's ruling and are pleased the justices acknowledged the exception for cases in which the life of the mother is at risk."

Tuesday's decision comes amid widespread uncertainty in states with abortion bans about when doctors can perform the procedure if needed to preserve the mother's life or health. Some women have been forced to wait until they are in immediate danger before obtaining an abortion, even when doctors foresaw the risk much earlier.

A view of the medical bed and the procedure room where abortions once took place, inside Tulsa Women's Clinic, in Tulsa, Oklahoma, U.S. June 20, 2022. REUTERS/Liliana Salgado

The majority in Oklahoma found that a doctor can perform an abortion after determining with "a reasonable degree of medical certainty or probability" that a pregnancy puts a mother's life at risk, and that "absolute certainty" is not needed.

"We know of no other law that requires one to wait until there is an actual medical emergency in order to receive treatment when the harmful condition is known or probable to occur in the future," they wrote in an unsigned opinion.

"Requiring one to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest," they said.

Four judges, all appointed by Republican governors, dissented, saying the majority failed to consider the interests of unborn children and that it went beyond the text of the constitution. One Republican appointee joined the court's four Democratic appointees in the majority.

Twelve of the 50 states, including Oklahoma, now ban abortion outright while many others prohibit it after a certain length of pregnancy, according to the Guttmacher Institute, a research organization that supports abortion rights.

(Reporting By Brendan Pierson in New York, Editing by Alexia Garamfalvi and Bill Berkrot)

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