Oklahoma’s old and new abortion laws

In March 2021, Sarah Zarr with Students for Life Action sat at a conference table with lawmakers from the Oklahoma House Public Health Committee. State Rep. Jim Olsen yielded his time to her, and she laid out the details of a pro-life bill sponsored by Olsen that Students for Life activists had been working on for months: It offered near-blanket protection of unborn babies from abortion.

The two-page bill that had already passed the Senate allowed abortion only to save the life of the mother. Anyone who performed an abortion could be guilty of a felony punishable with a fine of up to $100,000 or 10 years in prison. Speaking to the lawmakers, Zarr pointed out the approach would dissuade medical professionals from engaging in the abortion industry, “and it would eliminate this profitable enterprise.”

The bill passed the House more than a year later and received Gov. Kevin Stitt’s signature on April 12. Some abortion groups complain it would end abortions in the state if it takes effect on Aug. 26 as scheduled.

But existing pro-life statutes in Oklahoma would already have ended abortions were it not for the Supreme Court’s 1973 decision in Roe v. Wade. Oklahoma is one of nine states—the others are Alabama, Arizona, Arkansas, Michigan, Mississippi, Texas, West Virginia, and Wisconsin—that never repealed pre-Roe abortion laws protecting unborn babies. The situation raises the question: Why would a state like Oklahoma continue to pass abortion restrictions when others are already on the books and unenforced? The answer reveals the legal strategy pro-lifers in various states have pursued as the U.S. Supreme Court revisits the question of abortion in a ruling expected this June.

Under an Oklahoma law passed in 1910, anyone who causes a woman to miscarry her unborn baby is guilty of a felony and can be imprisoned for up to five years. Oklahoma also has a law protecting babies from abortion once they have a detectable heartbeat. On top of that, legislation the governor signed last year threatens doctors who perform abortions with revocation of their medical licenses. (Court rulings have kept the measures from taking effect.) Thanks to those and other laws, Americans United for Life ranked Oklahoma as the fourth most pro-life state in the country in 2022.

When the governor signed the latest bill, Planned Parenthood called the law “destructive” and said it would “completely ban abortion in Oklahoma” if allowed to take effect. That likely depends on how the Supreme Court rules in its upcoming decision in Dobbs v. Jackson Women’s Health Organization, a case examining Mississippi’s law protecting babies from abortion beginning at about 15 weeks of gestation. If the court chooses to uphold Mississippi’s law and overturn Roe, that could give other states wider freedom to regulate abortion.

Oklahoma state Sen. Nathan Dahm said the intent of the April bill was to resolve any concerns that the similar 1910 law would be ineffective. “Rather than having to enforce an old law that some would challenge and say has not been allowed to be applied for decades, this would reinforce that with a new measure,” said Dahm, the bill’s Senate sponsor. “So we wanted to have something that would be current and applicable rather than just the questionability of an old law that’s still on the books but not being enforced.”

In addition, he said, the established principle that the most recently signed laws take precedence over older laws will resolve any inconsistencies between the existing list of Oklahoma abortion measures, should they be allowed to take effect.

Some pro-lifers in the state are skeptical about such legislation’s ultimate effects. Missy Hibbard, the executive director at the Northeastern Oklahoma Hope Pregnancy Center, pointed out that the Oklahoma Supreme Court ultimately blocked the heartbeat bill Stitt signed last year. The high court blocked five Oklahoma pro-life laws last year alone.

“There are always going to be broken people seeking help and considering abortion,” added Gayla White, the director of five pregnancy centers in Oklahoma. “The laws are important, the laws matter, but … there hasn’t been one yet that’s really impacted [our] work.”

Still, Zarr is hopeful that, even if courts temporarily block enforcement of Oklahoma’s latest law, a favorable ruling from the U.S. Supreme Court in Dobbs will allow it and other legislation to take effect. “We really wanted to keep pushing life at conception bills because of the timing right now, because we know that Roe could be reversed or greatly weakened on or before June,” she said.

Attorney Paul Linton, who has helped craft pro-life laws in other states, said the effectiveness of Oklahoma’s newest law could be uncertain even after a Dobbs ruling if the Supreme Court doesn’t completely overturn Roe v. Wade. Other states, he noted, have passed contingency laws he helped draft: They ban abortion but expressly state they will only go into effect to the extent allowed by future U.S. Supreme Court rulings. If the court this summer allows Mississippi’s 15-week abortion ban to take effect but doesn’t permit stricter pro-life measures, those contingency laws would theoretically match the strictest law the Supreme Court allowed. (Such measures could still face future lawsuits, however.)

The Oklahoma law signed in April does not account for those scenarios, Linton said, so it’s unclear how Dobbs might affect its implementation. He said the best next step for pro-life lawmakers in the state would be to pass an amendment establishing that Oklahoma’s constitution does not guarantee a right to abortion. Constitutional ambiguity in some other states has allowed state supreme courts to declare a right to abortion in state constitutions—setting precedents that are difficult for pro-life lawmakers to overcome.

The Oklahoma Senate in March already approved such a pro-life constitutional amendment proposal that could come before Oklahoma voters in November. But Dahm is skeptical it will become a referendum this year, saying the Senate and House leadership are “pretty wary” about which measures they allow on the ballot.

For now, Dahm’s priority is passing a heartbeat bill modeled after the Texas Heartbeat Act with a private civil enforcement mechanism. The House passed one version of that bill and the Senate passed another. Both versions are waiting on a vote in the other chamber.