¶1 Petitioners filed this original proceeding objecting to two pieces of legislation passed by the Oklahoma legislature during the 2022 legislative session: S.B. 1503 and H.B. 4327. Both acts prohibit abortion after certain cutoff points while providing for a civil enforcement mechanism; both acts prohibit enforcement by the State, its subdivisions, and its agents--instead, the bills create a cause-of-action maintainable by any person for performing, or aiding and abetting the performance of, an abortion in violation of the acts. Petitioners challenge the bills on many grounds, but we do not address them all today. First and foremost, Petitioners challenged the constitutionality of the acts prohibiting abortion in violation of the Oklahoma Constitution.
¶2 S.B. 1503 prohibits abortions after detection of a fetal heartbeat except in case of medical emergency. S.B. 1503 states in relevant part: “Sections 3 and 4 of this act shall not apply if a physician believes a medical emergency exists that prevents compliance of this act.” S.B. 1503, § 5(A). There is no definition of medical emergency. There is also no severability clause.
¶3 H.B. 4327 on the other hand is a total ban on all abortions unless the “abortion is necessary to save the life of a pregnant woman in a medical emergency” or the “pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement.” H.B. 4327, § 2. H.B. 4327 states that “ ‘Medical emergency’ means a condition 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.” H.B. 4327, § 1(3).
¶4 Pursuant to this Courts decision in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, ¶ 9, 526 P.3d 1123, finding an “inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life,” we find these two statutes to also be unconstitutional. S.B.1503 provides even more extreme language then Section 1-731.4, found unconstitutional in Oklahoma Call for Reproductive Justice v. Drummond, as such, under stare decisis this Court must also find S.B. 1503 unconstitutional. See 2023 OK 24, ¶ 12, 526 P.3d 1123.
¶5 H.B. 4327 uses identical language as the statute in question in Oklahoma Call for Reproductive Justice v. Drummond, as such, pursuant to stare decisis this Court must also find it unconstitutional. See 2023 OK 24, ¶ 12, 526 P.3d 1123. But unlike the statutes in question in Oklahoma Call for Reproductive Justice v. Drummond, H.B. 4327 contains a lengthy severability clause.
¶6 This Court has previously explained how analysis of severability issues should be performed:
Severability analysis is a necessary process when some, but not all, provisions of an enactment are to be condemned as unconstitutional and hence void. Its purpose is to determine whether non-offending statutory provisions may survive as valid after the clauses rejected as invalid are separated from the whole. The severability of a statutory enactment is not contingent on the presence of an express severability clause within the particular enactments text. Survival of untainted statutory provisions that remain is appropriate when the valid and voided (as unconstitutional) provisions are not so “inseparably connected with and so dependent upon” each other that the surviving provisions would not have otherwise been enacted. Consideration must be given to whether the surviving provisions must rely on the severed portion for meaning or enforcement.
Fent v. Contingency Review Brd., 2007 OK 27, ¶ 18, 163 P.3d 512, 523--24 (footnotes omitted). In this case, if the Court were to sever the language allowing for medical abortions only in case of a medical emergency in H.B. 4327, the Court would create an even more restrictive statute like S.B. 1503, which was in further violation of the Oklahoma Constitution. If the Court were to sever the prohibition on abortion altogether, there would be no meaning to the rest of the bill because there would be nothing to civilly enforce. In order to attempt to salvage the rest of H.B. 4327, this Court would have to re-write the entire statute, which is not our purview.
¶7 Because we hold both bills are unconstitutional under the Oklahoma Constitution, pursuant to this Courts analysis in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123, we need not reach the rest of the Petitioners challenges to the legislation. We grant Petitioner declaratory relief as to both S.B. 1503 and H.B. 4327. See Fent v. Contingency Review Brd., 2007 OK 27, ¶¶ 10--11, 163 P.3d at 520--21; see also Okla. Call for Reproductive Justice v. Drummond, 2023 OK 24, ¶ 16, 526 P.3d 1123. Having found both S.B. 1503 and H.B. 4327 are unconstitutional and therefore unenforceable, it is unnecessary to address the Petitioners request for injunctive relief and/or writ of prohibition or Respondents claims that Petitioners do not have a justiciable claim against them. Petitioners request for injunctive relief and/or a writ of prohibition is denied. See Hunsucker v. Fallin, 2017 OK 100, ¶37, 408 P.3d 599, 612.
ORIGINAL JURISDICTION ASSUMED; DECLARATORY RELIEF GRANTED; INJUNCTIVE RELIEF AND WRIT OF PROHIBITION DENIED.
¶1 Were I to conclude that this case is exclusively resolved by the doctrine of stare decisis, I would dissent for the reasons given in my dissent in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123 (“OCRJ 1“). However, while this case and OCRJ 1 both deal with abortion, they present different legal and factual issues. I do not believe that application of OCRJ 1 fully resolves the current dispute.
¶2 Merely applying stare decisis in this case could be interpreted as amplifying and expanding the reach of OCRJ 1, which I continue to assert was wrongly decided. I dissent.
¶1 I dissent to the Courts finding that S.B. 1503 is unconstitutional in light of our holding in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123, (“OCRJ I“). Specifically, there is an important difference between the language employed in S.B. 1503 and that used in 63 O.S.Supp.2022 § 1-731.4, which we found unconstitutional in OCRJ I.
¶2 In OCRJ I, we held that under the Oklahoma Constitution,
[A] woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the womans physician has determined to reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the womans 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.”
OCRJ I, 2023 OK 24, ¶ 9, 526 P.3d 1123.
¶3 The petitioners in OCRJ I were challenging the constitutionality of two statutes, including § 1-731.4. Section 1-731.4 criminalized the performance of an abortion except when done “to save the life of a pregnant woman in a medical emergency.” The statute defined “medical 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.” 63 O.S.Supp.2022 § 1-731.4(A)(2). We held that the narrow scope of this exception infringed on a womans right to terminate her pregnancy to preserve her life:
We read this section of law to require a woman to be in actual and present danger in order for her to obtain a medically necessary abortion. We know of no other law that requires one to wait until there is an actual medical emergency in order to receive treatment when the harmful condition is known or probable to occur in the future. Requiring one to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest.
OCRJ I, 2023 OK 24, ¶ 12, 526 P.3d 1123.
¶4 Section 1-731.4 did not allow for a physician to determine whether a medical emergency existed. Rather, physicians were bound by the statutory definition of a medical emergency. Unlike § 1-731.4, S.B. 1503 does not explicitly define the term “medical emergency,” instead placing the decision of what constitutes a medical emergency within the sole discretion of the treating physician. S.B. 1503 states: “Sections 3 and 4 of this act shall not apply if a physician believes a medical emergency exists that prevents compliance with this act.” Had this qualifying language, granting physicians sole discretion to determine what constitutes a medical emergency, been included in § 1-731.4, it likely would have alleviated the majoritys concern with the constitutionality of that statute.
¶5 Here, we have: (1) a ban on elective abortion, which the majority upheld in OCRJ I;
1
and (2) an exception that the majority endorsed in OCRJ I--that a woman may terminate her pregnancy if her physician determines there is a medical emergency.
2
In combination, these provisions completely comport with our currently settled precedent. Accordingly, stare decisis leads to a finding of constitutionality--not unconstitutionality--as the majority finds.
¶6 I cannot ascribe to the majoritys finding that S.B. 1503 imposes on a womans constitutional right to terminate her pregnancy in order to preserve her life. Moreover, in finding that S.B. 1503 violates that right, I am concerned that the majority has expanded that right beyond what the Court recognized in OCRJ I.
¶7 I am also troubled by the majoritys finding that S.B. 1503 has “even more extreme language than Section 1-731.4.” In OCRJ I, we did not find that § 1-731.4 contained “extreme language.” Thus, the majoritys characterization of S.B. 1503 as “even more extreme” seems misplaced. Additionally, if by “more extreme” the majority means more restrictive on abortion, I find the majoritys assessment difficult to reconcile, given that S.B. 1503 gives physicians the discretion to determine if a medical emergency exists, whereas in § 1-731.4 the existence of a medical emergency was dictated by statute. Furthermore, as this Court has previously upheld legislative bans on elective abortions, I find the majoritys labeling of this legislation as “extreme” to be unsettling.
¶8 Finally, with respect to H.B. 4327, I dissent to the majoritys finding that the act is unconstitutional for the same reasons set out in my dissent in OCRJ I. The issues presented in this matter are political questions, which are better resolved by the people via our democratic process.
¶1 I dissent for the reasons given in my dissent in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123.
FOOTNOTES
1
. Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, ¶ 1, 526 P.3d 1123 (Kauger, J. concurring) (“I fully concur in the majority opinion which finds 21 O.S. 2021 § 861 [banning abortion except when necessary to preserve the life of the mother] constitutional.”).
2
. Notably, the right to an abortion that we crafted in OCRJ I was predicated on a physicians determination that “the pregnancy will endanger the womans life.” See id. ¶ 9.
PER CURIAM:
KAUGER, WINCHESTER, EDMONDSON, COMBS, GURICH and DARBY (by separate writing), JJ., CONCUR;
DARBY, J., concurring specially:
“If the Court was starting on square one on this subject, I would dissent. But this issue is determined by stare decisis. I maintain my position that I expressed in my dissent in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123.”
KANE, C.J. (by separate writing), ROWE, V.C.J. (by separate writing) and KUEHN, J. (by separate writing), DISSENT.