AG clarifies Oklahoma abortion law

Drummond's opinion says state law does not allow pregnant women to be punished for “seeking, performing, or self-inducing” an abortion.

Oklahoma Attorney General Gentner Drummond issued a formal opinion on November 21 clarifying that state law does not allow pregnant women to be punished for “seeking, performing, or self-inducing” an abortion to intentionally terminate their pregnancy, according to a statement released by his office.

“Oklahoma law does not allow the punishment of pregnant women attempting an abortion,” the opinion states. “The Legislature has repeatedly made this clear and just last year, repealed the one law that would have expressly allowed such a prosecution.”

The opinion was requested by four state senators and two state representatives, all Republicans. The senators asking for the opinion included: District 7 Senator Warren Hamilton, District 5 Senator George Burns, District 17 Senator Shane Jett, and District 33 Senator Nathan Dahm. The representatives included District 8 Representative Tom Gann and District 18 Representative David Smith.

In the opinion, Drummond writes that while state law does not allow for pregnant women to be prosecuted, abortion is legally prohibited throughout pregnancy except to save the life of the mother. Historically, pregnant women in Oklahoma and nationwide have not been prosecuted for seeking, obtaining, or inducing an abortion, he said. “Longstanding Oklahoma law prohibits the performance of—or the aiding and abetting of—every abortion throughout pregnancy except as necessary to save a pregnant woman’s life.”

Drummond also issued updated guidance to Oklahoma’s law enforcement agencies and district attorneys regarding state abortion law, replacing original guidance issued by former Attorney General John O’Conner after the United States Supreme Court’s 2022 Dobbs decision, which reversed that Court’s 1973 Roe v. Wade ruling which had given women the constitutional right to an abortion.

The updated guidance stresses that criminal prosecution should only be pursued for those who intentionally perform or assist with an elective or on-demand abortion within state borders, Drummond said.

State law authorizes abortion only to save the life of the mother and protects medical professionals when making such determinations, he said. “Medical doctors, in particular, should be given substantial leeway to treat pregnant women experiencing life-threatening or emergency physical conditions, using their reasoned medical judgement, so long as they are not unnecessarily terminating the life of the unborn child or intentionally abusing their position to facilitate elective abortions,” Drummond wrote.

The Oklahoma Supreme Court on November 14 temporarily stopped enforcement of three anti-abortion laws passed in 2021. The Court granted a temporary injunction to enjoin the enforcement of HB 1904, SB 778, and SB 779 and ordered a district court to rehear the case challenging them.

The Court, in a 5 – 4 decision, agreed with the groups that originally filed the case—including Planned Parenthood, the Center for Reproductive Rights, and the Tulsa Women’s Reproductive Clinic—that enforcement of the laws would place “undue burdens on a woman’s right to terminate her pregnancy” under the Oklahoma Constitution’s state due process section, which provides that “no person shall be deprived of life, liberty, or property, without due process of law.”

“We determined that if this Court were to adopt the Dobbs analysis we would have to find a limited right to terminate a pregnancy was deeply rooted in Oklahoma’s history and tradition,” wrote Justice Douglas L. Combs in the majority opinion. “Since the days of the Oklahoma Territory and until Roe, Oklahoma outlawed abortion; however, such criminal statutes also provided a limited exception to allow an abortion if it was “necessary to preserve her life.”

In May, the Oklahoma Supreme Court struck down two other laws banning most abortions, also ruling that a woman has a constitutional right to terminate her pregnancy in order to save her life.

Oklahoma House Democratic Leader Cyndi Munson said she was pleased to hear the Court’s recent decision, given that Oklahoma’s maternal death rate—47.5 maternal deaths per 100,000 live births—consistently ranks among the worst in the nation. “When these extreme anti-abortion policies were presented to us by the Republican supermajority, House Democrats repeatedly raised our concerns regarding constitutionality and the harmful impact they would have on women’s health care,” Munson said. “It is a good day for women’s health care and our medical community."