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Oklahoma’s Texas-Style Six-Week Abortion Ban OK’d for Now

May 4, 2022, 1:12 PM

An Oklahoma law that outlaws abortions after just six weeks of pregnancy will be immediately enforceable once it takes effect, as the state’s top court declined to block it while deciding whether to hear a case challenging the law’s validity under the Oklahoma Constitution.

The decision potentially shuts down abortion in Oklahoma for now because most abortions take place after the six-week mark. The Oklahoma Supreme Court didn’t say if it will hear the case or insist that it be submitted to a state trial court first.

The news followed the leak of a draft U.S. Supreme Court opinion that would overturn Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey, the two seminal decisions upholding the right to abortion. Such a ruling would gut federal abortion rights and put the issue back in the states.

Oklahoma’s S.B. 1503, like a similar Texas statute, criminalizes abortions performed after the detection of electrical impulses that precede the full development of the cardiovascular system, according to Oklahoma Call for Reproductive Justice and abortion providers. To opponents of abortion, the law is known as a “heartbeat” ban.

The law also puts enforcement power exclusively in the hands of private citizens and promises them at least $10,000 in damages for each successful suit. There is no cap on damages, and judges and juries have no discretion when determining an award.

Aiding or abetting an abortion, including paying for one, also is prohibited by S.B. 1503. There are no exceptions for rape, incest, or fetal health conditions.

S.B. 1503 violates the Oklahoma Constitution’s due process, equal protection, open courts, anti-delegation, and free speech provisions, the plaintiffs said. The state constitution’s prohibitions on special, overly vague, and ex post facto laws also precludes S.B. 1503’s enforcement, they said.

Gov. Kevin Stitt (R) signed the bill into law Tuesday, the same day the Oklahoma Supreme Court denied a temporary restraining order.

The court’s order, signed by Chief Justice Richard Darby, didn’t explain its decision.

Justice James R. Winchester, joined by Justice Douglas L. Combs dissented. Winchester would have waited until the governor signed the bill to decide on the plaintiffs’ petition.

Walding & Patton PLLC, Center for Reproductive Rights, and Planned Parenthood Federation of America represent the plaintiffs. The Oklahoma Attorney General’s Office represents the state.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Okla. Call for Reproductive Justice v. Oklahoma, Okla., No. 120,376, 5/3/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Carmen Castro-Pagán at ccastro-pagan@bloomberglaw.com