On 21 March 2023 the Supreme Court of the State of Oklahoma (SCOTSOO) held in a 5-4 decision that Oklahoma’s most recent abortion law (63 O.S. § 1-731.4, passed as SB 612 in 2022) “is void and unenforceable.” Under normal circumstances, the voiding of 63 O.S. § 1-731.4 would be no great loss, and in fact, would rightly be celebrated, because this is the statute that contained a license to kill. It gave permission to any woman in Oklahoma to murder her own preborn son or daughter.
Unfortunately, SCOTSOO did not stop at simply voiding the statute. They took the opportunity of this opinion to codify new woke interpretations of the Oklahoma Constitution and statutes, intending to permit and dramatically broaden the practice of murder by abortion. As you will see, SCOTSOO is attempting to institute a Roe v. Wade-like legal framework in Oklahoma.
First, in a very twisted trick of interpretation, SCOTSOO supposedly found a right to obtain an abortion in the Oklahoma Constitution. Note this crazy analysis:
The law in Oklahoma has long recognized a woman’s right to obtain an abortion in order to preserve her life… Our history and tradition have therefore recognized a right to an abortion [and] It can also be viewed as a right protected under the inherent rights provided in article II, section 2 of the Oklahoma Constitution… It creates an “inherent right to life” as well as “liberty” and stands as the basis for protecting a pregnant woman’s right to terminate a pregnancy in order to preserve her life.
Justice Combs later explains that the right to life and liberty “would include a right to privacy and personal autonomy.” Then in true bizzarro fashion, where down is up, and wrong is right, he implies that the right to murder one’s own child in the womb flows naturally from the liberty to direct one’s own private, personal life, a derivative of personal autonomy.
Chief Justice Kane in his dissent said that “the majority engages in legal contortions…by fashioning Oklahoma Constitutional precepts of abortion law that simply do not exist. There is no expressed or implied right to abortion enshrined in the Oklahoma Constitution. In interpreting our Constitution, this Court must guard against the innate human temptation to confuse what is provided in the Oklahoma Constitution with what one wishes were provided.”
With the voidance of 63 O.S. § 1-731.4, the criminality of abortion in Oklahoma is now governed primarily by an old statute, 21 O.S. § 861, which reads: “Every person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, shall be guilty of a felony…”
Here SCOTSOO once again inserts its woke ideology to reinterpret the phrase “preserve her life” to no longer mean “save the life of a pregnant woman in a medical emergency.” Note the strained and contrived way in which they arbitrarily define preserve her life:
We would define this inherent right to mean: a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman’s physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy. Absolute certainty is not required…
Remember the doctor’s note in high school that was a free pass for tardiness and absence? A woman now needs no more than a doctor’s note that she is acting to “preserve her life” to literally get away with murder. Justice Kuehn in her dissent said, “Even if I agreed with the Majority that the Oklahoma Constitution provides a limited right to termination of pregnancy to preserve the life of the mother, I could not agree with the Majority’s attempt to define that phrase.”
With this opinion SCOTSOO has foretold how they will adjudicate all future abortion cases in the State: they will throw out any case against a woman or her doctor. This opinion was clearly designed to open the bloody floodgates in Oklahoma.
Obviously, SCOTSOO has taken its cue from the past forty-nine years of successful judicial tyranny by the Supreme Court of the United States (SCOTUS). It appears that these justices have reasoned that if SCOTUS could get away with ruling hundreds of millions across our union for five decades, surely they can get away with ruling less than four million here in Oklahoma. Now, doing their best imitation of SCOTUS in 1973, they are seeking to establish their own Roe-like rule, and they are counting on Oklahomans and our elected officials to behave as they have in the past, to continue bowing down and obeying immoral and unconstitutional court opinions.
What To Do?
But hope is not lost. According to the Oklahoma Constitution, SCOTSOO is not supreme. The State Legislature has authority over the court. Article 7A § 1 provides for the removal of judges from office for “Gross neglect of duty, corruption in office…gross partiality in office, oppression in office; or other grounds as may be specified hereafter by the legislature” (emphasis added).
We believe the offending justices of SCOTSOO may be impeached and removed from office immediately based on their current actions. They have already demonstrated “gross partiality” on behalf of their favored pro-abortion idealogues and have directly been guilty of “oppression” of preborn human beings. The process to remove a justice is begun via a simple petition filed by any of several parties, including the Governor and the Attorney General, or by a Resolution of the House of Representatives. Governor Stitt could also call for the impeachment of these justices citing “incompetency” from Article 8 § 1 of the State constitution.
In addition to impeachment, the Legislature should pass a bill to properly define “preserve her life” to mean “save the life of a pregnant woman in a medical emergency,” followed by this statutory language: “Any judge of this State who attempts to redefine, enjoin, stay, overrule, or void any provision of this bill shall be subject to removal from office per the power granted to the Legislature by Article 7A § 1 of the Oklahoma Constitution.”
SCOTSOO will continue its reign of terror over our preborn neighbors until something changes. If impeachment is no more than a theoretical threat, then Justices Kauger, Winchester, Edmondson, Combs, and Gurich, who have acted outrageously, will continue to do so. This merry-go-round will not stop until these tyrannical bullies are thrown off their playground thrones. Impeachment must be more than a threat—it must be a reality! Governor Stitt, Attorney General Drummond, and our State Representatives must discipline these rogue justices of the Supreme Court of the State of Oklahoma.