Abortion Bans

NEAR-TOTAL

Oklahoma has amended the penalty provision of its pre-Roe abortion ban, but has not repealed the ban, which is unconstitutional and unenforceable.

The unenforceable ban provides that any person who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, or who uses or employs any instrument with the intent to cause an abortion not necessary to preserve the woman's life shall be guilty of a felony.  Okla. Stat. Ann. tit. 21, § 861 (Enacted 1910; Last Amended 1999).  A woman who solicits or submits to an abortion not necessary to preserve her life may be imprisoned for up to one year, fined up to $1000, or both.  Okla. Stat. Ann. tit. 21, § 862 (Enacted 1910).

Oklahoma's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  Okla. Stat. Ann. tit. 21, § 684 (Enacted 1998).

Oklahoma's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart.  530 U.S. 914 (2000).  In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.

Oklahoma's unconstitutional law makes the performance of any abortion procedure that falls within a broad definition a crime, unless the procedure is necessary to save the life of a woman endangered by a physical disorder, illness, or injury.  Penalties include a fine of $10,000, imprisonment for up to two years, or both. Okla. Stat. Ann. tit. 21, § 684 (Enacted 1998).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after the attending physician, the referring physician, or an agent of either physician tells her, in person or by telephone:  (1) the name of the physician who will provide the abortion; (2) the medical risks of the procedure; (3) the probable gestational age of the fetus; (4) the medical risks of carrying the pregnancy to term; and (5) the locations where the woman can obtain a free ultrasound.  In addition, at least 24 hours prior to the abortion, in person or by telephone, the woman must receive from the attending or referring physician or physician's agent, a state-mandated lecture that must include:  (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if the father offered to pay for the abortion; and (3) that she has the right to review state-prepared materials in printed form or on a state-sponsored website that describe the fetus, list agencies that offer alternatives to abortion, and if the fetus has reached a gestational age of 20 weeks, that the materials include information on fetal pain.   If the woman chooses to review the materials in printed form, they must be mailed to her by a method chosen by the woman.  The state-prepared materials must:  (1) provide a geographically indexed, comprehensive list of public and private agencies and services and their telephone numbers, including adoption agencies and the locations where the woman can obtain a free ultrasound, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent, or include a 24-hour toll-free hotline to obtain such a list; (2) describe with pictures the probable anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; (3) describe the commonly employed procedures, the medical risks associated with each, the "possible detrimental psychological effects" of abortion and carrying a pregnancy to term, and the medical risks of carrying a pregnancy to term; and (4) state that after the fetus has reached a gestational age of 20 weeks, the fetus may feel pain, and anesthesia is often used after a gestational age of 20 weeks during prenatal surgery.

Except in the case of a medical emergency, for abortion services provided after 20 weeks, the physician must tell the woman that anesthesia is available to alleviate fetal pain.  With the consent of the woman, the physician shall then administer an anesthetic.

A lower federal court concluded that this law is not unconstitutional and, therefore, refused to issue an injunction barring its enforcement.  Nova Health Sys. v. Edmondson, 373 F. Supp. 2d 1234 (N.D. Okla. May 27, 2005).  An appellate court also denied the motion for injunction, leaving Oklahoma's biased-counseling and mandatory-delay law in effect.  Nova Health Sys. v. Edmondson, 373 F. Supp. 2d 1234 (10th Cir. July 20, 2005).

Okla. Stat. Ann. tit. 63, §§ 1-738.1 and .4 (Enacted 2005); §§ 1-738.2, .3,, and .5 (Enacted 2005, Last Amended 2006); §§ 1-738.6 to .12 (Enacted 2006).

Counseling Ban/Gag Rule

An organization or affiliate of an organization that receives funds for provision of support services to women seeking alternatives to abortion, meaning those services that promote childbirth instead of abortion, through an alternatives-to-abortion-services revolving fund, may not provide, promote, or refer for abortion.

Okla. Stat. Ann. tit. 63 §§ 1-740.11 and .12 (Enacted 2006).

Insurance Prohibition for Abortion

All health insurance contracts, plans or policies must exclude coverage for abortions unless the procedure is necessary to preserve the woman's life or in the case of rape reported to a law enforcement agency or in the case of incest involving a minor and reported to a law enforcement agency.  Coverage may be obtained only through an optional rider for which an additional premium is paid. 

S.B. 139, 51st Leg., 2007 1st Sess. (Okla. 2007) (Enacted 2007) (to be codified at Okla. Stat. Ann. tit. 63, § 1-741.2).

Public Facilities and Employees Restriction

No public institution, public facility, public equipment, or other physical asset owned, leased, or controlled by the state may be used for performing or assisting an abortion unless the procedure is necessary to preserve her life or the pregnancy is the result of rape or incest reported by the woman to the proper law enforcement authorities.  

A public employee may not, within the scope of his or her employment, perform or assist in an abortion unless the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest reported by the woman to the proper law enforcement authorities.  

Okla. Stat. Ann. tit. 63, § 1-741.1 (Enacted 2007).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Oklahoma allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply?  Individuals, hospitals, and health care facilities

What does the refusal clause allow?  No person may be required to perform abortion, or to participate in medical procedures that result in or are in preparation for an abortion or that involve abortion aftercare except when necessary to preserve the woman's life.  No employer shall discriminate against an employee or prospective employee who refuses to perform abortion services based on religious beliefs unless the employer can demonstrate that accommodation for such refusal would pose an undue hardship on the program, enterprise, or business of the employer.

No private hospital is required to permit abortion. The refusal of an individual to participate in an abortion, or the refusal of a private hospital to permit abortion in accordance with a standard policy, may not be a basis for civil liability, disciplinary action, or other recriminatory action.

In addition, no health care facility, defined as any public or private entity that is involved in providing health care services, including a hospital, clinic, physician's office, pharmacy, medical school, or other place where health care services are provided, is required to admit any patient or allow the use of the health care facility for the purpose of performing abortion services.  No employee of a health care facility who, in writing, refuses or states an intention to refuse to participate in abortion services on moral or religious grounds shall be disciplined for such refusal.

Does the law require the refusing entity to notify the persons affected?  No.

Are there circumstances under which a refusal clause may not be exercised?  Yes.  A person may be required to participate in abortion services or the aftercare of an abortion necessary to protect the life of the patient.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services?  No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause?  No.

Okla. Stat. Ann. tit. 63, § 1-741 (Enacted 1978); S.B. 1878, 51st Leg., 2d Reg. Sess. (Okla. 2008) (to be codified at Okla. Stat. Ann. tit. 63, § 1-728 to 1-782.4) (effective Nov.1, 2008).

Restrictions on Low-Income Women's Access to Abortion

Oklahoma prohibits public funding for abortion for women eligible for state medical assistance for general health care unless:  (1) the procedure is necessary to preserve the life of a woman endangered by a physical disorder, injury, or illness, including a life-endangering physical condition caused by or arising from the pregnancy itself; or (2) the pregnancy is the result of rape or incest reported to the police or a counselor unless the physician certifies that the woman is unable to report the crime for physical or psychological reasons and provides the certification and supporting documentation for pre-approval.  Okla. Admin. Code § 317:30-5-6(a).

Funding for abortion in cases of rape or incest will be provided only as long as Congress considers these services medically necessary and federal funds are available.  Okla. Admin. Code § 317:30-5-50(a).

Restrictions on Young Women's Access to Abortion

Oklahoma law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18.

What is required - parental notice or parental consent?  Both notice and consent.

Who must have knowledge or provide consent?  One parent.

Are there other trusted adults who may have knowledge or provide consent?  No.

What is the process for providing notice and obtaining consent?  A young woman may not obtain an abortion until at least 48 hours after actual, written notice and a request for written informed consent is given in person by the physician or an agent to one parent and the physician has obtained the written informed consent of one parent.  In lieu of notice and a request for written informed consent delivered in person, constructive notice and request for written informed consent by certified mail, return-receipt requested and restricted to the addressee, must be given.  The parent must certify in a notarized statement that he or she has been notified and consents to the abortion.

May the parental mandate be waived if a young woman is a victim of rape or incest?  Yes, as long as the physician notifies law enforcement or the Department of Human Services about the alleged abuse.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if a medical emergency exists.  A medical emergency is defined as a physical condition of the young woman, not including any emotional, psychological, or mental condition, that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function."  However, unless a young woman declares her intent to seek a judicial waiver, the physician or an agent must give verbal and written notice to one parent within twenty-four hours after the performance of a medical emergency abortion.

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating, by clear and convincing evidence, either that she is mature and capable of giving informed consent to the abortion or that an abortion without parental notification and consent is in her best interests.

Are there other significant requirements under the law?  A physician who intentionally or knowingly performs an abortion on a young woman without parental notification and consent commits a felony.

Has a court considered the constitutionality of this law?  Yes.  A lower federal court concluded that the portion of the law that addresses the costs of medical treatment is unconstitutional and issued a permanent injunction, but an appellate court held that the law was constitutional and reversed the lower court's decision.  Nova Health Sys. v. Fogarty, 01-CV-0419-EA (N.D. Okla. June 14, 2002), rev'd, 388 F.3d 744 (10th Cir. 2004).  The same appellate court later held that abortion providers did not have standing to challenge the law's constitutionality.  Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005).

Other information about the law:  No.

Okla. Stat. Ann. tit. 63, §§ 1-740 (Enacted 2001) 1-740.1 to .3 (Enacted 2005; Last Amended 2007), 1-740.4 (Enacted 2005, Last Amended 2006), 1-740.4a to .4b (Enacted 2007), 1-740.5 (Enacted 2005).

Targeted Regulation of Abortion Providers (TRAP)

Oklahoma prohibits certain qualified health care professionals from performing abortions, and has an unconstitutional and unenforceable law that subjects abortion providers to burdensome restrictions not applied to other medical professionals.

Restrictions on Where Abortions May Be Performed

Among the most common TRAP regulations are those restricting the performance of abortions to hospitals or other specialized facilities, which require doctors to obtain medically unnecessary additional licenses, needlessly convert their practices to mini-hospitals at great expense, or perform abortions only in hospitals, an impossibility in many parts of the country.

Oklahoma has an unconstitutional requirement that all abortions after the first trimester be performed in a "general hospital." Okla. Stat. Ann. tit. 63, § 1-731(B) (Enacted 1978).

A federal court enjoined this requirement, stating that the U.S. Supreme Court ruling in Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983), rendered it unconstitutional. Reprod. Servs. v. Keating, 35 F. Supp.2d 1332 (N.D. Okla. 1998).

Restrictions on Who May Perform Abortions

Oklahoma prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed to practice medicine in the state may perform an abortion. Okla. Stat. Ann. tit. 63, § 1-731 (Enacted 1978; Last Amended 1999); § 1-729 (Enacted 2008).

No woman may induce an abortion upon herself except under the supervision of a physician licensed to practice medicine in the state. Okla. Stat. Ann. tit. 63, § 1-733 (Enacted 1978; Last Amended 1997).