FAQ: What we know about reproductive health emergencies in Oklahoma
KOSU is putting together a series of FAQ guides on reproductive healthcare questions. With conversations happening all around us on what is or isn’t legal following the overturn of Roe v. Wade, we’re wanting to cut straight to what we do know. This guide focuses on reproductive health emergencies in Oklahoma.
Here are some of the questions we’ve been getting:
Does Oklahoma have any exceptions for abortion?
Yes, but they’re pretty unclear.
Oklahoma’s law includes exceptions for what lawmakers call “the life of the mother” — medical emergencies.
Oklahoma passed several abortion-related laws this year, including SB 612, which makes performing an abortion a felony, punishable by up to 10 years in prison and $100,000 in fines. Another piece of legislation, HB 4327, opens anyone who performs or helps someone get an abortion up to civil liability. That means anyone in the state could sue them for up to $10,000. Both HB4327 and SB 612 have the same definition for medical emergency: “a condition which cannot be remedied by delivery of the child in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness or physical injury including a life-endangering physical condition caused by or arising from the pregnancy itself.”
However, the definition isn’t necessarily clear for providers.
“How serious a condition does it have to be?” Vicki MacDougall, professor emeritus of health law at Oklahoma City University’s law school, said. “Is a statement from the doctor sufficient? Well, attorneys are going to be running around in circles trying to figure this out.”
It is important to note as of now, no Oklahoma laws punish abortion patients for the procedure. They instead focus on providers.
Are Indian Health Service policies different than what the state allows when it comes to exception for abortions?
Yes. Indian Health Service (IHS) follows federal policies. Since IHS clinics use federal dollars, they follow different policies.
Here is Xavier Becerra's statement after Dobbs v. Jackson Women's Health Organization was decided:
"At the Department of Health and Human Services, we stand unwavering in our commitment to ensure every American has access to health care and the ability to make decisions about health care -- including the right to safe and legal abortion, such as medication abortion that has been approved by the FDA for over 20 years. I have directed every part of my Department to do any and everything we can here. As I have said before, we will double down and use every lever we have to protect access to abortion care. To everyone in this fight: we are with you."
IHS appropriations may be used to pay for -- or otherwise provide -- for an abortion when a pregnant person suffers from a physical disorder, injury, or illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would place the patient in danger of death unless an abortion is performed, or when the pregnancy is the result of an act of rape or incest.
However, if a person becomes pregnant as a result of a sexual assault, they must report the crime and must provide a police report to the clinic staff in order to receive abortion services.
This policy has been criticized by some advocates as a huge barrier to getting the procedure - since a majority of sexual assaults go unreported.
What are some examples of an emergency that are legal for abortion?
Judges and lawmakers are going to be deciding in the coming days what is or isn't legal.
One of the bills — HB 4327, which opens doctors and facilitators up to lawsuits —does say that the measure does not apply to ectopic pregnancies. That means the embryo is attached somewhere other than the womb; it can never be viable, and can cause the patient to risk becoming sterile or even dying. SB 612, which criminalizes abortion, does not mention ectopic pregnancies specifically.
On August 31, Oklahoma's Attorney General John O'Connorreleased guidance for law enforcement regarding Oklahoma's abortion ban.
It is typical for attorneys general to advise on criminal laws like SB612 since they are the highest law enforcement agency in the state.
The guidance says ectopic pregnancy removal is legal. The guidance also says doctors should be given "substantial leeway" in life-threatening situations, but doctors can still be prosecuted. It is unclear what "substantial leeway" means at this time - and other than ectopic pregnancies, other qualifying conditions aren't laid out, so law enforcement has discretion.
The guidance also recommends law enforcement and district attorneys to contact the AG's office if they are seeking prosecution.
I’ve heard most people don’t support recent abortion bans, so is there anyway to change it?
Less than one third of Oklahoma voters support a total abortion ban. Oklahoma’s bans do not have exceptions for victims of sexual assault and incest.
Technically, the state legislature does have the power to reverse these bans. They can amend or reverse any laws that aren’t in the state constitution. Changes to the state’s constitution require a vote of the people. A good example is State Question 788, which legalized medical marijuana.
Neither SB 612 nor HB 4327 made any changes to Oklahoma’s constitution, so lawmakers do have the power to repeal the laws. However, most current lawmakers are adamantly anti-abortion.
If a patient has cancer, and they decide they need to terminate their pregnancy and undergo chemotherapy, does that count towards an emergency for abortion?
We don’t know.
There are concerns that it might not, and that “emergency” needs to be an immediate life-or-death situation, such as an ectopic pregnancy.
There are two ways to get a solid answer for questions like this: the legislature can clarify the issues by updating the law, or the court system can clarify by ruling on lawsuits.
To our knowledge, no cancer institutes or cancer-related organizations have said anything about this kind of case.
If I’m a victim of rape, do I have the option to have an abortion in Oklahoma?
In Oklahoma, there is no rape or incest exception. Gov. Kevin Stitt has publicly said he thinks rape victims should carry pregnancies to term, then connect with adoption services.
The only exception that Oklahoma law has is if the pregnant person has “a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury.”