Oklahoma Supreme Court Pulls Anti-Abortion Measure Off Ballot

The Oklahoma Supreme Court on Friday struck from the November ballot a measure that would have outlawed abortion for most women in that state.

Relying on a June 29 ruling by the U.S. Supreme Court, the Oklahoma high court said in a 5-4 ruling that the proposed Initiative 349 is “diametrically opposed” to the constitutional right that women still have, and thus cannot be put to state voters.

The ruling marked the second time in recent days that lower courts have decided cases in reaction to the Supreme Court’s decision five weeks ago that Pennsylvania’s abortion law is constitutional. In Pennsylvania’s case, the Supreme Court ruled that a 24-hour waiting period does not impose an undue burden on women seeking abortions.

In a ruling earlier this week, the Supreme Court’s ruling was cited as the basis for allowing Mississippi to begin enforcing a strict anti-abortion law already on the books there.

The Mississippi law requires that women wait 24 hours after seeing a doctor before having an abortion. It also requires doctors to inform patients of abortion risks and alternatives.

The two state rulings are an indication how the right to abortion may now differ vastly from state to state as lower courts apply the Supreme Court’s ruling in different ways to various state laws.

In Oklahoma, a group known as Oklahoma Coalition to Restrict Abortion had submitted Initiative 349 as a state law subject to voter approval this fall. Its legality was challenged in the state Supreme Court, which told the lawyers involved to offer new views on the impact of the U.S. Supreme Court decision handed down in June.

The proposed Oklahoma state law would have made abortion a crime, with penalties of up to four years in prison, except in cases of “grave impairment” of the woman’s health, the birth of a child with a “grave physical or mental defect,” or pregnancy resulting from rape or incest.

That measure, the state court majority ruled, “does not allow a woman to make a private decision to obtain an abortion at any time during the pregnancy,” either before or after the point of “viability”--the point at which the fetus, if delivered, would be capable of living outside the woman’s body.

The Oklahoma court said the Supreme Court’s June ruling permits states to adopt a ban on abortion only after the fetus has become viable. Before that point, the decision allows a woman “to have an abortion without undue interference by the state.”

The Oklahoma majority said the initiative was “unconstitutional” and barred the ballot measure because state law forbids even submitting to the voters a proposal that would violate the U.S. Constitution.

Two of the four dissenting justices said that since the majority had relied upon the U.S. Constitution for its ruling, the case could now be appealed to the Supreme Court as a new “test case” on abortion.