The Washington PostDemocracy Dies in Darkness

Opinion Oklahoma gives us a chilling glimpse of life in post-Roe America

Abortion rights supporters rally at the state Capitol on May 3, 2022, in Oklahoma City. (Sue Ogrocki/AP)
5 min

A chilling glimpse of life in post-Roe America: The Oklahoma Supreme Court has ruled, just barely, that a pregnant woman has the right to abortion “when necessary to preserve her life.”

For four of the nine justices, even that shred-let of protection was too much. Weighing the life of the mother against the interests of the fetus, they said, was a choice for the legislature, not the province of judges.

The “thorny medical, philosophical, and practical debate of balancing the developing life of the unborn against the life of the mother, and the government’s involvement in those decisions,” Chief Justice John Kane wrote in dissent, “is a necessary and worthy dialogue for the people to commence.” In “some rare and terrible circumstances, people’s rights to life may conflict,” observed Justice Dana Kuehn. “How do we balance that?”

Um, by recognizing that under any reasonable understanding of due process of law, the right to life of a living, breathing human takes precedence over the interests of a fetus incapable of surviving on its own?

We should, I suppose, be thankful for the outcome, and for the fact that Republican-appointed Justice James Winchester broke ranks to join with four Democratic-appointed justices to strike down part of the state’s draconian abortion law. After all, Oklahoma could be worse; it could be Texas.

Oklahoma law provides a narrow exception to the state’s abortion ban in cases of threats to maternal health, but only “to save the life of a pregnant woman in a medical emergency.” The majority said that was unduly restrictive, in violation of the state constitution.

“We read this section of law to require a woman to be in actual and present danger in order for her to obtain a medically necessary abortion,” the court said. “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.”

Three of the justices, in a concurring opinion, put it more pointedly: “Must an Oklahoma physician wait until their patient has a seizure, a stroke, experiences multiple organ failure, goes septic, or goes into a coma because of the fear of criminal prosecution?”

The state legislature might step in, the concurring justices observed, or the state’s voters might address the matter by referendum. But they said, “We need to do our jobs, uphold our oaths of office, and address the issues without delay rather than speculate about what might be. … In some instances, women may have fewer rights than a convicted murderer on death row. These women may be subject to a death sentence without being afforded due process or any provision for clemency or pardon. Imagine that.”

It doesn’t take much imagination, actually. In neighboring Texas, five women have sued the state because they say their doctors withheld potentially lifesaving care for fear of running afoul of the state’s abortion law. One, who became pregnant after extensive fertility treatments only to learn that the fetus would not survive, had to wait until she was in septic shock and near death before her doctors were willing to intervene.

No matter what you believe about when life begins, in what world does this kind of moral calculus make sense? I have tried to resist the analogies, but this is about as “Handmaid’s Tale” as it gets. Really, how little do we value women’s lives?

And could there be a constitutional provision more apt to the task than the protections — in the Oklahoma Constitution as well as its federal counterpart — against the deprivation of life without due process of law? Indeed, the Oklahoma Constitution goes even further, asserting an “inherent right to life.”

Those who oppose abortion rights can argue that the procedure is nowhere mentioned in the document; fair enough. But life is mentioned — and there have to be some limits on how a state can restrict its citizens’ freedom of action. Would it be constitutional for a state to provide no abortion exception whatsoever to save the mother’s life?

This is what is so alarming about the cramped views expressed by the dissenting justices. No matter to them that Oklahoma, nearly since its founding, has always provided an exception in its abortion law for those necessary to save the life of the mother. Such history, it seems, counts only when it can be summoned to restrict women’s autonomy.

“I really don’t understand how we can square a constitution that protects people’s right to life with a ban that will result in pregnant people dying,” said Rabia Muqaddam, senior staff attorney at the Center for Reproductive Rights. “But we know that four justices on the Oklahoma Supreme Court think that is a policy choice. That is deeply, deeply scary.”

So here we are, with what passes for victory in the current legal environment. “In this moment where patients are desperate for care and they’re panicked, this feels like a good moment,” said Emily Wales, CEO of Planned Parenthood Great Plains. “At the very least it clarifies for providers in emergency settings that, yes, you can do what your medical training taught you.”

Better than the alternative, I guess. But my own reaction is closer to rage than it is to relief.