On December 13, 2016, the Oklahoma Supreme Court struck down a state law that set stringent requirements for the places where abortions are performed. In addition to following the United States Supreme Court’s ruling that invalidated a similar Texas law, the Oklahoma court ruled that the law violated the state constitution.
Oklahoma’s SB1848, enacted in 2014, set several new requirements that pro-choice supporters found draconian.
At any place where abortions were performed, a physician had to be physically present to help transfer any patient who experienced an emergency, until all patients were ready to leave the facility.
The state Board of Health was directed to set requirements for the equipment and supplies that any abortion provider must have on hand in case of emergency. Each patient had to have an ultrasound before she could have an abortion, whether she wanted one or needed one, or not.
Abortion patients had to be offered a follow-up visit. Abortion providers had to submit incident reports if either a pregnant woman or a live-born child was injured during the abortion.
The U.S. Supreme Court’s Ruling
In June 2016, the United States Supreme Court ruled in Whole Woman Center v. Hellerstedt that a similar law enacted in Texas was unconstitutional. The Oklahoma court acknowledged that the Whole Woman Center ruling was binding.
The state constitution provides that Oklahoma is an inseparable part of the United States, so there is no question about the supremacy of federal law. If we end up having a constitutional crisis and states want to secede for other reasons, that provision will come in handy.
The Oklahoma court considered the evidence that was presented to the trial court in Whole Woman Center. Texas, like Oklahoma, argued that the requirements for emergency services and relationships with hospitals protected women’s health.
The trial court had ruled that the risk of complications that would require access to emergency services was so low that the law did not benefit women’s health at all. In fact, by reducing the number of abortion providers in the state, so that women had to travel farther to obtain abortions, the law imposed an undue burden on access to abortion.
Oklahoma’s Single Subject Requirement
Article V, section 57 of Oklahoma’s constitution requires that all laws must relate to only one subject. This is called the “single subject rule.” The purpose is to prevent legislators from adding provisions that will pass only because the rest of the bill is too important to fail.
It was not enough that everything in the law related to abortion in some way. The law:
- Gave new powers to the state Board of Health to regulate abortion clinics and set standards for medical care;
- Required the physical presence of a doctor with admitting privileges at a hospital within 30 miles of the clinic until all abortion patients were ready to leave the clinic;
- Made it a felony to operate a clinic without a license, and
- Set reporting requirements for patient deaths.
The evidence in the Texas case proved that the admitting privileges requirement, in particular, resulted in clinics closing.
Doctors who came to town to perform abortions at the clinic could not guarantee the minimum admissions per year that hospitals required because they didn’t have emergencies where patients needed hospitalization.
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