Yesterday the Oklahoma Supreme Court became the latest state court to give into judicial temptation to strike down an abortion law—in this case, the statute prohibiting abortion on demand enacted last year. The court employed a narrow but head-spinning rationale for doing so and left the door open for the future invalidation of abortion laws.
By a 5–4 margin, the court fabricated “an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life” and then invalidated the state’s 2022 statute as constitutionally defective despite its inclusion of a significant “medical emergency” exception crafted precisely to advance that aim. The provision defined such an emergency as “a condition which cannot be remedied by delivery of the child in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness or physical injury including a life-endangering physical condition caused by or arising from the pregnancy itself.” The fact that the statute’s clear language protecting women’s lives wasn’t enough for the court is a tell: their invented standard is designed to allow abortions in a much wider, but as-yet undefined, number of cases.
To reach its conclusion, the court engaged in some of the same wishful thinking that had given rise to Roe v. Wade on the U.S. Supreme Court. The Oklahoma majority worked from two state constitutional provisions: its due process clause, with language nearly identical to that found in the federal constitution, and an “inherent rights” clause guaranteeing that “[a]ll persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.” As Chief Justice M. John Kane noted in dissent, Oklahoma’s constitution, at almost 85,000 words, is the nation’s third longest—“a highly detailed enumeration of rights, not a broad, sweeping statement of concepts. Nowhere, broadly or specifically, is a right to abortion enumerated.”
To advance the pretense that history and tradition supported its opinion, the court relied on a prohibition that was over a century old and included an exception where an abortion was “necessary to preserve [the woman’s] life.” That law actually imposed criminal penalties on those who assisted in procuring abortions, and it was bizarre for the court to try to elevate such an exception to the status of a state constitutional right. Imagine how much chaos would come from courts doing the same with statutory exceptions to other criminal laws. But this is not a disciplined group of jurists. One concurring opinion, penned by Justice Yvonne Kauger and joined by Justices James Edmondson and Douglas Combs, was a long-winded exposition on the oppression of women over the centuries with references that meandered from King Henry VIII to the 2002 film My Big Fat Greek Wedding.
The court’s opinion did not strike down the older statute, as the plaintiff abortion advocates and providers sought in their suit along with their challenge to the 2022 law. But while limited in that respect, the court kept the door open to the further invalidation of abortion restrictions. In this case, it engaged in its own self-serving interpretation of statutory language, pitting it against a self-servingly indeterminate abortion right, to reach its outcome. In the process, the court declined to indicate how far this abortion right would go and failed, as dissenting Justice Richard Darby observed, to “discuss any rights as they may apply to the unborn child.”
As for “when an exception is allowed,” Darby added, that
is a policy choice for the people of the state of Oklahoma, not a decision we should be dictating from above. . . . The people of Oklahoma have the option to change this legislative language, and perhaps should do so, in order to help provide further guidance and clarity to medical professionals for when medical emergency abortions are allowed—but that is not the role of this Court.
All four dissenters echoed the same theme about judicial usurpation of a question that was clearly not dictated by the state constitution. But why did this position fail to carry the majority in a Republican-dominated state? Four years ago, the Kansas Supreme Court similarly surprised observers when it struck down a ban on a gruesome abortion procedure that entailed dismemberment of the unborn baby. As I wrote at the time, Kansas followed the Missouri Plan for the selection of its supreme court justices: A judicial nominating commission limits potential nominees for a given vacancy to three prospects from which the governor must choose. At the conclusion of the justice’s term, he or she is subject to a retention election, which 99 percent of the time returns the incumbents to the bench.
That system, a relic of the progressive era’s distaste for democracy, ties the hands of governors by allocating much of the nominating power to state bar associations, which notoriously lean left. Like Kansas, Oklahoma follows the Missouri Plan. Last year, the leadership of Oklahoma’s state senate tried to advance a ballot initiative to do away with the state’s 15-member nominating commission, but it failed to garner the votes in the house to make it to the ballot.
Yesterday’s abortion decision was made possible by James Winchester, a justice initially appointed by a Republican governor, joining four colleagues who were initially appointed by Democrats and subsequently kept on by winning retention elections. Three of the four Democratic appointees have terms that will expire in January 2025 and will therefore be subject to retention elections next year: Yvonne Kauger, James Edmondson, and Noma Gurich. If the long-prevailing paradigm is broken and the stakes of that election can be effectively brought to the attention of voters, it might be enough to unseat the normally rubber-stamped incumbents. But over the long term, the state should get rid of the Missouri Plan and either reserve judicial nominating power to the governor, subject to some form of legislative approval, or assign judicial selection directly to the people via election. Without either form of electoral accountability in place, states should expect to continue to face power grabs from their top judges who simultaneously defy the voters’ will and the rule of law.