Here’s How Oklahoma Banned Abortion Even Before Supreme Court Overturns Roe V. Wade
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Oklahoma has now outlawed all abortions from the moment of fertilization after Gov. Kevin Stitt (R) signed an abortion ban into law Wednesday night—the harshest abortion restriction in the U.S. since Roe v. Wade was decided in 1973—which was allowed to take effect even with Roe still in place because it copied Texas’ similar ban.

Key Facts

Stitt signed into law HB 4327, which bans all abortions except due to medical emergencies or in the case of rape, incest or sexual assault—but only if those crimes have been reported to law enforcement.

The law took effect immediately upon being signed.

The abortion ban, like Texas’ similar six-week ban, is enforced through civil lawsuits rather than by state officials, allowing any private citizen to sue anyone who performs the procedure or “knowingly engages in conduct that aids or abets” an abortion for $10,000 in damages.

HB 4327 does not allow people to sue the person who actually has the abortion.

While abortion bans enforced by state officials have been struck down in court with Roe v. Wade still intact, the Texas and Oklahoma laws were designed to be harder for courts to block, as having private citizens carry out the ban means it’s harder to name defendants in lawsuits who a court can actually stop from enforcing the law.

That’s worked out so far in Texas, whose law the U.S. Supreme Court and Texas Supreme Court have so far let stand because they ruled abortion providers can’t actually sue any state officials.

What To Watch For

Abortion rights organizations including Planned Parenthood have already vowed to file litigation against the Oklahoma ban, though based on the success Texas’ law has had in court, it’s unclear if the legal challenge will succeed. Idaho has also enacted a law copying Texas’ six-week ban, which actually has been temporarily blocked in court, but the Idaho ban was blocked in state court based on Idaho law, so the legal arguments there wouldn’t necessarily apply in Oklahoma’s case.

What We Don’t Know

Whether the ban and its lawsuit enforcement mechanism will even be necessary in a few weeks, as the U.S. Supreme Court could soon overturn Roe v. Wade and let states directly ban abortion without having to try and get around the courts. A draft opinion from February leaked by Politico revealed a majority of justices were then in favor of striking down Roe entirely, declaring the landmark ruling “egregiously wrong.” That ruling is not final, however, and the official decision will likely be released in June. If Roe is overturned, Oklahoma has a “trigger ban” that will go even further to ban abortion, making performing the procedure a felony punishable by between two to five years in prison and only having an exception for when the life of the pregnant person is at risk. The state also has a second abortion ban that’s set to take effect this summer that would impose even harsher penalties, making performing the procedure punishable by up to 10 years in prison and a $100,000 fine.

Chief Critic

“We are seeing the beginning of a domino effect that will spread across the entire South and Midwest if Roe falls,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement Wednesday night. “Right now, patients in Oklahoma are being thrown into a state of chaos and fear. That chaos will only intensify as surrounding states cut off access as well.”

Key Background

Oklahoma’s ban could be the first of more than a dozen state abortion bans to take effect as the Supreme Court appears poised to overturn Roe v. Wade. In addition to Oklahoma, 12 other states have abortion “trigger laws” on the books that will outlaw the procedure if Roe is struck down, and the pro-abortion rights Guttmacher Institute projects 26 states will ban the procedure if Roe isn’t in place. Oklahoma lawmakers have moved aggressively to ban abortion in recent months—enacting three separate bans since April alone—as Texas’ six-week ban has sent a flood of Texans to the state to get abortions. Approximately 48% of Texas patients seeking abortions went to Oklahoma to have the procedure between September and December 2021, after the Texas ban took effect, according to a study from the University of Texas at Austin. “A state of emergency exists in Oklahoma,” Oklahoma Senate President Pro Tempore Greg Treat (R) said in April about the surge of Texas abortion patients traveling to Oklahoma. “And that’s the reason we’re making every effort to get our laws changed.”

Further Reading

Oklahoma Passes Third Abortion Ban—Will Outlaw Procedure Even If Roe V. Wade Isn’t Overturned (Forbes)

Oklahoma Lawmakers Pass Bill That Bans Almost All Abortions—And Makes Performing One A Felony (Forbes)

Oklahoma Enacts Texas-Style 6-Week Abortion Ban (Forbes)

While the nation grapples with post-Roe possibilities, Oklahoma is already living it, advocates say (PBS News Hour)

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