Governor Stitt just signed House Bill 4327 which prohibits most abortions beginning at fertilization. The only exceptions in the law are to save the life of a pregnant woman or if the pregnancy is the result of rape or incest that has been reported to law enforcement. It also allows private citizens to sue anyone who "aids or abets" a woman seeking an abortion at any point in her pregnancy. It will be one of the most restrictive abortion laws in the nation. In 2021, 5,950 abortions were performed in the state. Abortion rights groups have said they will challenge this law. So, how did we get here?
In 1973, in the case of Roe v. Wade, the U.S. Supreme Court ruled that the Constitution protected a woman's right to an abortion without undue state restrictions. The argument was based on the fundamental right to privacy implied in the fourteenth amendment's Due Process Clause. In the majority opinion Justice Blackmun wrote that only a "compelling state interest“ should restrict fundamental rights. The Court decided the state's compelling interest in regulating abortion would be connected to pregnancy trimesters. States could not enact laws restricting abortion during the first trimester, but could make reasonable regulations during the second trimester, and completely ban it during the third trimester with exceptions in cases of the mother's health. The decision was criticized by many as an example of judicial activism or "legislating from the bench."
In 1992, Roe was modified by the Court in Planned Parenthood v. Casey. In Casey, the Court upheld Roe's holding that a woman's right to an abortion is constitutionally protected, but overruled Roe's "strict scrutiny" standard for reviewing abortion restrictions based on a trimester framework and replaced it with the lower "undue burden" standard based on fetal viability. Because of this change, state's could implement abortion restrictions during the first trimester of pregnancy.
This summer the Court will release its decision in the case of Dobbs v. Jackson Women's Health Organization. The issue being decided is whether all pre-viability prohibitions on elective abortions are unconstitutional or not. A draft opinion written by Justice Alito was leaked to the press in early May. It indicated that the Court would overturn Roe v. Wade in a 5-4 vote. This would allow each state to enact its own abortion restrictions, even banning them in most cases like Oklahoma.