Abortion Providers: Restrictions
Oklahoma imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Among the most common TRAP regulations are those restricting the provision of abortion services 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 provide abortion services only in hospitals, an impossibility in many parts of the country.
Oklahoma has an unconstitutional requirement that all abortion care after the first trimester be provided 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 Provide Abortion Services
Oklahoma prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed to practice medicine in the state may provide abortion care. Okla. Stat. Ann. tit. 63, § 1-731 (Enacted 1978; Last Amended 1999). Further, only a physician may provide medication abortion care. Okla. Stat. Ann. tit. 63,§ 1-729a (Enacted 2010).
Oklahoma law requires any physician providing abortion care to have admitting privileges at a hospital within 30 miles of the provider. Okla. Stat. Ann. Tit. 63 §1-748(B) (Enacted 2014). Nothing in the law requires hospitals to grant providers such privileges. The state supreme court blocked this law, remanding it back to the lower court, and ruling that the law is unconstitutional because it creates an undue burden on a woman’s access to abortion. Burns v. Cline, 382 P.3d 1048 (Okla. 2016).
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).
Oklahoma’s post-viability abortion restriction states that no abortion may be provided after viability unless necessary to preserve the woman’s life or health. If more than 24 weeks have elapsed since the beginning of the woman’s last menstrual period, a fetus shall be rebuttably presumed viable. The physician must use the abortion method most likely to preserve the life and health of the fetus unless it poses a significantly greater risk to the woman’s life or health than another available method. Consistent with good medical practice and the procedure used, the physician must take all reasonable steps to preserve the life and health of the fetus. A second physician must attend. Okla. Stat. Ann. tit. 63, § 1-732 (Enacted 1978).
A court held that this law is constitutional. Spencer v. Seikel, 742 P.2d 1126 (Okla. 1987).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion, such as Oklahoma’s, that contain adequate exceptions to protect the woman’s life and health.
Near-Total Abortion Ban
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).
State and federal courts held that these laws are unconstitutional. Jobe v. State, 509 P.2d 481 (Okla. Crim. App. 1973); Henrie v. Derryberry, 358 F. Supp. 719 (N.D. Okla. 1973).
Abortion Bans Throughout Pregnancy: Ban by Week
Oklahoma outlaws abortion after 20 weeks without an adequate exception to protect women’s health or for cases in which the pregnancy is the result of rape or incest. Okla. Stat. Ann. tit. 63, § 1-745.1 (Enacted 2011).
Oklahoma’s law makes abortion after 20 weeks a felony, unless necessary to save a woman’s life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. Physicians in violation of the law would be guilty of a felony of an undefined class. In addition, the law allows the woman or the man involved in the pregnancy to bring a civil suit for damages against the physician. It also allows the woman, her parents, her husband, her siblings, her guardian, her other health-care providers, or the state attorney general to file for injunctive relief blocking the abortion provider from providing abortion care after 20 weeks in future instances. Okla. Stat. Ann. tit. 63, § 1-745.1 (Enacted 2011).
Abortion Bans Throughout Pregnancy: Procedure Ban
Oklahoma also has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 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 had no 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 any abortion procedure that falls within a broad definition a crime, unless 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 certain second-trimester abortion procedures and has no 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.
Abortion Bans Throughout Pregnancy: Procedure Ban
Oklahoma outlaws the most common second-trimester abortion procedure with no exception to protect a woman’s health.
Oklahoma outlaws the use of a D&E (dilation and evacuation) procedure unless it is necessary to save the woman’s life. The D&E procedure is the most commonly used method for second-trimester abortion. Its illegality would cause women to have to undergo more invasive and potentially more dangerous procedures. This law includes a narrow and inadequate exception to protect a woman’s health. Additionally, the law gives authority to bring a cause of action for civil damages on behalf of the woman, the father of the pregnancy, the woman’s parents or guardian if a minor, or a former health-care provider of the woman—regardless of when in her life the person provided care, or for what type of treatment. Okla. Stat. Ann. Tit. 63 §§ 1-737.9, -.10, -.11, -.13 (Enacted 2015). A state court has temporarily blocked the law from going into effect while the case proceeds through the courts. Unfortunately, while the judge blocked this provision of the law, it did not block a separate, extreme anti-choice provision requiring a 72-hour mandatory delay. Nova Health Systems v. Pruitt et al. cv-2015-1838 (Oct. 2015).
Reasons-Based Ban: Race- and/or Sex Selection
Oklahoma bans abortion if sought solely for reasons of the sex of the pregnancy, with an exception for a sex-linked genetic disorder. Any provider who violates the law is subject to unprofessional conduct penalties, which may include license suspension or revocation. The law also includes a right of action for the woman or her parent or legal guardian if she is an unemancipated minor. Okla. Stat. Ann. § 63-1-731.2(B), S.B.1890, 52nd Leg. Sess., Reg. Sess. (Okla. 2010).
A woman may not obtain an abortion until at least 72 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; (5) the ultrasound imaging and heart tone monitoring, and notification that the website and printed materials include contact information for locations where the woman can obtain a free ultrasound.
In addition, not less than 72 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. 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 woman must certify in writing that this information has been provided to her.
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; (4) include a statement that “Abortion shall terminate the life of a whole, separate, unique, living human being,”and that there are public and private agencies willing to help a woman carry her pregnancy to term. The health department shall also require providers—with the exception of private offices or freestanding outpatient clinics—to post a conspicuous sign to that effect.
Any facility that provides abortion services and has a website must publish a prominent link on its homepage that links to the health department’s website where this biased-counseling material is maintained.
Except in the case of a medical emergency, for abortion services provided after 20 weeks, the physician must tell the woman that these biased-counseling materials are available on the health department’s website.
Okla. Stat. Ann. tit. 63, §§ 1-738.1 and .4 (Enacted 2005); §§ 1-738.2, .3, and .5 (Enacted 2005, Last Amended 2015); §§ 1-738.6 to .13 (Enacted 2006, Last Amended 2015); §§ 1-746.2 (Enacted 2014, Last Amended 2015); §§ 1-737.4 (Enacted 2017).
A lower federal court concluded that this law is constitutional 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).
Oklahoma requires a woman seeking an abortion to wait at least 72 hours between the time she receives biased-counseling materials and when she can get the procedure. Okla. Stat. Ann. tit. 63, §§ 1-738.1 and .4 (Enacted 2005); §§ 1-738.2, .3, and .5 (Enacted 2005, Last Amended 2015); §§ 1-738.6 to .13 (Enacted 2006, Last Amended 2015); §§ 1-746.2 (Enacted 2014, Last Amended 2015).
A lower federal court concluded that the previous 24-hour delay law was constitutional 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). On the current 72-hour mandatory delay law, a state court issued a temporary injunction against certain other provisions, but ruled the delay constitutional. Nova Health Sys. v. Pruitt, cv-2015-1838 (Dist. Court Okla. County Oct. 14, 2015).
Insurance Coverage & Abortion
Prohibits Abortion Coverage in the State
Does Oklahoma prohibit statewide private insurance coverage of abortion services?
Yes. Private health-insurance contracts, plans, or policies may not include abortion coverage, with an exception only to save a woman’s life. Abortion coverage may be obtained only through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Okla. Stat. Ann. tit. 63, § 1-741.3 (Enacted 2007; Repealed 2007; Re-enacted 2011).
Prohibits Abortion Coverage in the Insurance Exchange
Does Oklahoma expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with an exception only to save a woman’s life. Abortion coverage may be obtained outside the state exchange only through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Okla. Stat. Ann. tit. 63, § 1-741.3 (Enacted 2011).
Low-Income Women & Abortion
Restricts 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 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).
An invalid statute prohibits public funding for abortion unless the procedure is necessary to preserve the woman’s life. Okla. Stat. Ann. tit. 56, § 206(C) (Enacted 1987). A court held that this statute conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment, and declared the law invalid. Courage v. McFall, No. 94-C-356-K (N.D. Okla. Mar. 8, 1995). In 2003, the Oklahoma legislature repealed the statute. S.B. 610, 49th Leg. Sess., 1st Sess. (Okla. 2003).
Young Women & 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, but the physician must notify law-enforcement authorities 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, not including any emotional, psychological, or mental condition, that necessitates an immediate termination to preserve the woman’s 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 24 hours after the provision 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 or that an abortion without parental notification and consent is in her best interests.
In assessing if the young woman is mature and capable, the court may consider, among other relevant factors including the woman’s age, work experience, how much time she has spent outside the home, and how she handles her personal finances.
Are there other significant requirements under the law? A physician who intentionally or knowingly provides an abortion without parental notification and consent commits a felony. Additionally, any person who assists a minor in obtaining an abortion without the consent of her parent has committed a felony and is civilly liable to the minor and her parent or parents.
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 2013), 1-740.4 (Enacted 2005, Last Amended 2006), 1-740.4a to .4b (Enacted 2007; Last Amended 2015), 1-740.5 (Enacted 2005), 1-744.1 to .6 (Enacted 2013).
Insurance Coverage & Contraception
No state measure.
Low-Income Women & Contraception
Supports Low-Income Women’s Access to Contraception
Oklahoma provides increased access to reproductive-health-care services through a State Plan Amendment (SPA) to its Medicaid program. The SPA creates a limited-eligibility group, allowing individuals who do not otherwise qualify for the Medicaid program to obtain family-planning services. The SPA allows the state to cover family-planning services for women and men age 19 and older with family incomes at or below 138 percent of the federal poverty level who are not currently enrolled in Medicaid and do not have any other health insurance. Additionally, enrollees must be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) Oklahoma residents.
Members with family-planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: office visits and physical exams related to family planning; pregnancy tests; birth-control information and supplies; laboratory tests related to family-planning services, including Pap smears and screening for STDs; and, sterilization for men and women age 21 and older.
Oklahoma Medicaid State Plan, OK-11-05, at http://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/OK/OK-11-05.pdf; Oklahoma Medicaid State Plan, OK-13-17-MM1, at http://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/OK/OK-13-17-MM1.pdf
No state measure.
Other Important Issues
No state measure.
Fake Health Centers
State Refers to Crisis Pregnancy Centers
Oklahoma law refers women to crisis pregnancy centers (CPCs). In connection with the state’s biased-counseling and mandatory-delay law, when a woman tells a health-care provider she is considering abortion, the provider must give her a state-maintained list of facilities that will satisfy the law’s mandate. CPCs are included on the list without disclaimer of their biased nature and are not distinguished from legitimate health centers. The Oklahoma Department of Health must also publish this list on its website with a statement urging women to contact these organizations. Okla. Stat. Ann. tit. 63, § 1-738.3 (Enacted 2005, Last Amended 2006). H.B.2797, Okla. Stat. Ann. tit. 63, § 1-752 (Enacted 2016).
State has Anti-Choice License Plates
Oklahoma law provides for a "Choose Life" license-plate program that funnels money to anti-choice organizations. The program is operated by the state Department of Transportation and drivers are able to purchase the specialty license plate for a fee. A percentage of the fee is retained by the state to recoup administrative costs; the rest of the funds are directed to the Choose Life Assistance Program Revolving Fund. Okla. Stat. Tit. 47, § 1135.5v1 (23), § 1104.6 (Enacted, 2003; Last Amended, 2014).
State Funds Crisis Pregnancy Centers
Oklahoma funds crisis pregnancy centers (CPCs) directly through taxpayer funds. The funding stream is established through the "Choosing Childbirth Act" administered by the State Department of Health. This program is not yet funded. H.B.1703, 56th Leg., Reg. Sess. (Okla. 2017) (to be codified at Okla. Stat. tit. 63, § 1-740.15).
Refusals & Guarantees
Refusals of Medical Care
ABORTION REFUSAL CLAUSE
Oklahoma allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals, hospitals, health-care facilities, and any other entities.
What does the refusal clause allow? Allows individuals and entitites to refuse to provide, assist in providing, counsel on, or refer for abortion services, or to participate in abortion care or abortion aftercare except when necessary to preserve the woman’s life. No employer shall discriminate against an employee or prospective employee who refuses to provide, assist in providing, counsel on, or refer for 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.
Allows private hospitals and health-care facilities to refuse to permit abortion care. The refusal of an individual to participate in abortion services, or the refusal of a private hospital to permit abortion care in accordance with a standard policy, may not be a basis for civil liability, disciplinary action, or other recriminatory action.
In addition, allows health-care facilites, defined as "any public or private organization, corporation, authority, partnership, sole proprietorship, association, agency, network, joint venture, or other entity that is involved in providing health care services, including a hospital, clinic, medical center, ambulatory surgical center, private physician’s office, pharmacy, nursing home, university hospital, medical school, nursing school, medical training facility, inpatient health care facility, or other place where health care services are provided," to refuse to admit any patient or allow the use of the facility for the purpose of participating in abortion services. No employee of a health-care facility who 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 aftercare if 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); Okla. Stat. Ann. tit. 63, § 1-728ba-f (Enacted 2010).
Counseling & Referral Bans
Counseling & Referral Ban
No funds expended by the Alternatives-to-Abortion Services Revolving Fund, a fund promoting childbirth instead of abortion, can be used by an organization or its affiliate, if either provides or refers for abortion. Okla. Stat. Ann. tit. 63 §§ 1-740.11 and .12 (Enacted 2006).
No funds expended by the "Public Education on the Humanity of the Unborn Child Fund," a fund promoting anti-choice ideas to the public and students about "the humanity of a child in utero," can be used by an organization that provides, counsels, or refers for abortion. 2016 Okla. Sess. Laws Ch. 353.