The legality of abortion in Oklahoma has been shaped by recent legal shifts. After the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision returned the authority to regulate abortion to individual states, Oklahoma’s own laws became the primary determinant of abortion access.1LII / Legal Information Institute. DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION
The Current Legal Framework for Abortion in Oklahoma
Abortion is almost entirely prohibited in Oklahoma, governed by a pre-Roe ban from 1910. This law, found in Oklahoma Statutes Title 21, Section 861, criminalizes performing an abortion unless it is necessary to preserve the life of the pregnant person.2Justia Law. Oklahoma Statutes §21-861 (2024) – Procuring an abortion. While the legislature passed stricter bans in 2022, the Oklahoma Supreme Court struck them down in 2023.
The court affirmed that the Oklahoma Constitution provides a right to an abortion to save a pregnant person’s life, leaving the 1910 law as the controlling statute.
Recognized Exceptions to Oklahoma’s Abortion Ban
The only recognized exception to Oklahoma’s abortion ban is to preserve the life of the pregnant person. The Oklahoma Supreme Court has clarified that a physician does not need to wait for a medical emergency to become imminent. An abortion is legally permissible if a doctor determines with a “reasonable degree of medical certainty or probability” that continuing the pregnancy will endanger the person’s life.3Justia Law. Oklahoma Call for Reproductive Justice v. Drummond :: 2023
This danger can arise from the pregnancy itself or from a pre-existing condition it complicates. Oklahoma’s laws do not provide exceptions for pregnancies resulting from rape or incest.
Legal Consequences for Unlawful Abortions
The legal penalties for performing an abortion outside the state’s narrow exception are dictated by the 1910 law. A person convicted of performing an unlawful abortion is guilty of a felony, punishable by two to five years in the state penitentiary.
These penalties are directed at the provider, as the law explicitly states that a pregnant person who has an abortion cannot be criminally charged. Additionally, medical professionals who violate the abortion ban can have their medical license revoked for unprofessional conduct.4Justia Law. Oklahoma Statutes §59-509 (2024) – Unprofessional conduct – Definition.
Oklahoma Law and Medication Abortion
Oklahoma’s abortion ban includes medication abortion, which involves mifepristone and misoprostol. State law does not distinguish between surgical and medication methods, making both illegal unless the life-of-the-mother exception is met. The statutory definition of abortion is broad, covering any “instrument, medicine, drug, or any other substance or device” used to end a pregnancy.
It is a crime for anyone other than a physician to provide these medications, and sending them through the mail is also illegal. Proposed legislation seeks to create a felony for trafficking abortion-inducing drugs, with penalties of up to 10 years in prison and a $100,000 fine.
Out-of-State Abortion Access for Oklahoma Residents
Oklahoma residents have a constitutional right to travel to other states for legal abortion services, and state laws cannot prevent them from leaving for medical care. This has become a common option since the implementation of Oklahoma’s ban.
While travel is protected, some proposed bills have aimed to penalize those who help someone travel for an abortion, though the legal standing of such laws is questionable. Currently, providing information about legal abortion options in other states is permissible, as organizations can share information about clinics and resources without violating Oklahoma law.