Weekly Opinion Editorial
by Steve Fair
This week, the Oklahoma Supreme Court(OSC) ruled the state constitution protects the right to an abortion to a woman in life-threatening situations. In the 5-4 decision, the OSC determined Senate Bill# 612 was unconstitutional and violated Section 861 of the state constitution.
Enacted in April 2022, SB#612 prohibited all abortions except in narrowly defined medical emergencies and made abortion a felony punishable by up to 10 years in prison and/or a $100,000 fine. The OSC’s concurring and dissenting opinions on the decision can be found at: https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=493235
Governor Kevin Stitt disagreed with the OSC opinion, calling it an ‘activist’ opinion. Stitt pointed out the majority(concurring) opinions failed to mention the unborn. “From the moment life begins at conception, we have a responsibility to do everything we can to protect that baby’s life and the life of the mother,” Stitt said.
In the dissenting opinion, Chief Justice John Kane wrote: “This court should adhere to the Constitution given to us, not craft what we believe to be a ‘better’ Constitution. The power lies with the people.”
Justice Yvonne Kauger, 85, wrote the 4,870-word majority/concurring opinion. The Sermon on the Mount is only 2,000 words! Kauger, appointed to the OSC in 1984 by Governor George Nigh, lists four feminist arguments why a women should have the right to an abortion. In her rambling conclusion, Kauger cites several injustices against women in the past and winds up by writing: “For some women, the draconian law which allows no exception, in the absence of a medical emergency to preserve the life of the mother, may be a death sentence. In some instances, women may have fewer rights than a convicted murderer on death row.”
The justices who joined with Kauger in the majority opinion, the governor who appointed them to the high court and the date of their appointment are as follows: Winchester (Keating in 2000), Combs (Henry in 2010 ), Gurich (Henry in 2011), and Edmondson (Henry in 2003).
Justices who voted No were Kane (Stitt in 2019), Kuehn (Stitt in 2021), Rowe (Stitt in 2020), Darby (Fallin in 2018). Three observations:
First, the OSC is more unstable than Justine Bieber. How the OSC will rule is inconsistent and impossible to predict. The OSC’s pick and choose past rulings on what is ‘log rolling/single subject’ legislation are classic examples. What they see as constitutional in one ruling will be ruled the exact opposite in another case. Their rulings are often illogical and legally indefensible. They have often overturned the will/vote of the people of Oklahoma based on their liberal interpretation of a law.
Second, Oklahoma needs judicial reform. The current retention ballot isn’t working. Since the Sooner state went to the retention ballot (1972) for the state’s three courts of appeal, no jurist has been voted out. That is not because they are all doing a bang-up job. It’s because Oklahoma voters can’t find out anything about the judges on the ballot, so they skip the retention ballot. Proposals to term-limit judges hasn’t gotten anywhere in the legislature. Proposed reforms to the nomination process (controlled by the state attorney’s association- OBA) always hit a dead end. The reason liberals and quasi- conservatives get appointed to the OSC is because the OBA is not conservative. Having liberals involved in the selection of the justices have put liberals on the court.
Third, legislating from the bench is alive and well in Oklahoma. The OSC has routinely struck down legislation and overturned the vote of the people. That proves elections have consequences. It makes a difference who is elected governor. All, but one of the Justices (Winchester), who voted against the unborn were appointed by a Democrat governor. It is not the job of the OSC to rewrite the constitution. Their job is to interpret the law, not make it.
The hyperbole, exaggerated scenarios liberals use to make their case for terminating a child’s life in the womb fail to address the one overriding question: when does life begin? If it begins at conception, then no one has a right to murder another and any law that allows it is draconian.