Yvonne Kauger

Guzman v. Guzman, 2021 OK 26, 507 P.3d 630, as corrected (May 26, 2021). Justice Kane authored opinion in which Justices Darby, Kane, Kauger, Winchester Edmondson, Combs, and Rowe concurred. Justice Winchester concurred separately in which Justices Darby, Kauger, and Comb concurred. Justice Gurich dissented. *Involved Key Issue*

Holding(s): The Court found that Carmen lacked standing to seek parental rights. The Court stated, “Because parental rights have not been bestowed on step-parents via statute or the common law, Carmen has no standing to seek custody and visitation with the child.” Additionally, the Court found the Court of Civil Appeals erred when applying Schnedler finding that the case did not apply to legally married same-sex couples. 

Analysis: The Court found that historically, step-parents in Oklahoma had very limited legal rights concerning their step-children, with no parental rights or obligations after a relationship ends. Additionally, the Court found there were no statutory provisions allowing step-parents to pursue custody or visitation with a former spouse's child, and their choice to care for a child during marriage does not grant them parental rights or impose obligations like child support. The Court noted that the law aims to protect biological parents from inadvertently losing their parental rights through marriage to a step-parent.

Concurrence: Justice Winchester concurred that Carmen, as a step-parent, lacked standing. He wrote separately to clarify that there are only two ways to establish parental rights in Oklahoma: biology or adoption. Justice Winchester emphasized that these options apply to same-sex couples. He concluded that Carmen’s only option for establishing parental rights was through formal adoption, which she had not pursued, thus she lacked standing. 

Dissent: Justice Gurich dissented disagreeing with the majority’s classification of Carmen as stepparent. Justice Gurich argued that Carmen should not be denied standing based on the label stepparent. Gurich argued that Carmen played a significant parental role in the child’s life since birth. Gurich further argued that Carmen met the requirements of Schnedler which recognized non-biological same-sex partners' standing in parental rights cases. Overall, Justice Gurich criticized the majority for overlooking the best interests of the child and for relying on outdated legal definitions that do not reflect modern family dynamics. Gurich concluded that Carmen deserved the opportunity to seek legal recognition of her parental role, highlighting the need for equitable treatment in family law. Justice Gurich found support in “Obergefell v. Hodges, 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), [which] held a union between persons of the same sex would be ‘deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.’ Id. at 652, 135 S.Ct. 2584."

Background: Following the separation of Adrieanna and Carmen, Carmen filed a petition for paternity seeking to establish parental status regarding her step-child whom Adrieanna had previously adopted. Adrieanna filed for divorce, claiming there were no shared children. Adrieanna then filed a motion to dismiss Carmen’s claims, arguing that Carmen lacked standing since she never formally adopted the child.

Applicable Law(s):

• “Under Oklahoma law, once the final decree of adoption was entered, Adrieanna had all the rights, duties, and legal consequences of a natural parent of the child. See 10 O.S.2011 § 7505-6.5(A).” 
• “In general, the right of a parent to seek visitation of their child, upon separation or otherwise, derives from the right to custody. See Leake v. Grissom, 1980 OK 114 ¶ 8, 614 P.2d 1107, 1110.

Naifeh v. State ex rel. Oklahoma Tax Comm'n, 2017 OK 63, 400 P.3d 759,?as amended?(Aug. 10, 2017). Justice Wyrick authored opinion in which Justices Combs, Gurich, Kauger, Winchester, Edmondson, and Reif, concur. Justices Watt and Colbert concurred in part and dissented in part. 

Holding:?The Court held that SB 845, the “Smoking Cessation and Prevention Act of 2017” failed to comply with Article V, Section 33 finding that the bill was a “revenue raising” measure, thus was unconstitutional. 

Background: Cigarette manufacturer and wholesale challenged SB 845 alleging that its enacted was outside the Article V Section 33 of the Oklahoma Constitution. SB 845 the “Smoking Cessation and Prevention Act of 2017” generates new revenue to the state through a “new $1.50 assessment on each pack of cigar rates” which was passed the last day of the session. The bill calls this a “smoking cessation fee” but the court notes that three of the four proposed bills (which did not pass) relating to this matter stated the purpose was “raise new revenue for the support of the function of state government.” One proposal even stated it was ““[a]n Act ... imposing additional tax levy upon cigarettes.” The Court asked whether SB 845 was a “revenue bill” that fell under Article V Section 33—both parties agreeing that the procedure for the article was not followed. 

Analysis: The Court acknowledged the legislatures right to legislate on “rightful subjects,” but noted that Article V, Section 33 limits the legislature's ability and is one of several fiscal policies placed in the Oklahoma Constitution by the people. Article V Section 33 requires the legislature to balance the budget and requires the government to operate on a “pay-as-it-goes” basis. Revenue bills “are those ‘whose principal object is the raising of revenue, and not those under which revenue may incidentally arise,’ and which ‘levy taxes in the strict sense of the word.’” Court applied a two-part test which the court established in 1908. The Court said it must interpret Article V section 33 according to its “plain meaning of the amendment’s text. The Court concluded that “Section 33… ‘must be construed considering its purpose and given a practical interpretation so that the manifest purpose of the framers and the people who adopted it may be carried out.’ ?look to ‘what the legislation actually accomplishes . . . and not [to] what a legislature states it is accomplishing.’”  

Applicable Law: Article V, Section 33 “restricts the Legislature's ability to enact “revenue raising” measures. It does so by requiring that such measures (1) originate in the House of Representatives, (2) be enacted prior to the last five days of the legislative session, and (3) be approved either by the people or by a three-fourths majority in each legislative chamber.”?? 

Oklahoma Coal. for Reprod. Just. v. Cline, 2019 OK 33, 441 P.3d 1145. Per Curiam. Justices Gurich, Kauger, Edmondson, Colbert, and Reif concurred. Justice Combs concurred specially and filed opinion in which Gurich and Kauger and Reif, joined. Justice Winchester concurred in result. Justice Darby filed dissenting opinion. *Involved Key Issue*

Holding: The Court held that HB 2684 was unconstitutional because it imposed "an undue burden" on a woman's ability to access abortion. Consequently, the Court granted the motion for summary judgment, stating that it was bound by U.S. Supreme Court precedents, Roe v. Wade and Casey v. Planned Parenthood, which establish the constitutional right to abortion under Article VI of the Constitution.  

Analysis: The Court first concluded that it was bound by U.S. Supreme Court precedent. In its analysis the Court addressed the Supremacy Clause of the United States Constitution, which establishes it as the supreme law of the land, binding all state judges to adhere to it. It noted that the Oklahoma Constitution similarly affirms this supremacy, requiring compliance with federal law. The Court highlighted that decisions from the United States Supreme Court are binding and prevent the Court from imposing its own interpretations. The Court clarified that it had not decided whether the Oklahoma Constitution provides for abortion, and it would not address that issue in this case. It reiterated that its role was to apply federal constitutional law, not to create it. The Court discussed Whole Woman's Health v. Hellerstedt, which outlined the necessary analysis for evaluating legislative health regulations regarding abortion. 

The Court next concluded that under U.S. Supreme Court precedent H.B. 2684 was unconstitutional finding that it imposed an undue burden on women’s right by “adher[ing] to [an] outdated protocol [that] would make medication abortion more costly, less effective, and more prone to negative side effects.” The Court's analysis focused on whether the law violated due process rights by enforcing an “outdated” drug regimen. The Court discussed the equal protection clause and due process protections, noting that both are coextensive under state and federal law. The Court highlighted prior case law indicating that legislation imposing an undue burden on a woman seeking an abortion was deemed unconstitutional. The Court examined the evidence presented, and found it indicated that the 2016 protocol was superior to the 2000 protocol in safety and efficacy.   

Concurrence: Justice Combs concurred with the majority's finding that H.B. 2684 imposed significant obstacles to a woman's choices and created undue burdens on her rights. He emphasized concerns with laws that restrict abortion-inducing drugs as incompatible with medical standards, arguing they serve only to obstruct access to abortions and discriminate against women. He reiterated that H.B. 2684 contravened current medical practices and limited access to medication abortions in Oklahoma.

Justice Combs highlighted the supremacy of federal law, reminding that all state officials are bound by their constitutional oath to uphold the U.S. Constitution, which restricts their role to applying federal law rather than interpreting it. He referenced Supreme Court cases—Roe v. Wade, Planned Parenthood v. Casey, and Whole Woman's Health v. Hellerstedt—that establish a woman's right to abortion and the need for any law limiting that right to pass the "undue burden" test. He concluded that until the Supreme Court changes its stance, Oklahoma must adhere to these precedents, and any law that limits access to abortion before viability is unconstitutional.   

Background: The case involved a challenge to Oklahoma's H.B. 2684, which restricted the use of Mifeprex (mifepristone) and misoprostol in order to abort a child. Opponents of the bill argued this was outdated FDA-approved protocol. This statute was enacted after the previous legislation, H.B. 1970, had been deemed unconstitutional. The plaintiffs, including Nova Health Services, argued that H.B. 2684 violated several rights under the Oklahoma Constitution, including due process and equal protection, and constituted a special law. The district court concluded that the statute was unconstitutional finding it was a special law. On appeal the district courts decision was reversed; however on remand the district court granted summary judgement to reproductive rights organization and health service provider declaring H.B. 2684 an unconstitutional restriction on abortion access. The state appealed.  

Oklahoma Call for Reproductive Justice v. State, 531 P.3d 117 (Okla. 2023). Per Curiam. Justices Kauger, Winchester, Edmondson, Combs, and Gurich concurred. Justice Darby concurred in the decision based on the principle of stare decisis. Justice Kane filed a dissenting opinion, joined by Justice Kuehn. Justice Rowe filed a dissenting opinion. Justice Kuehn filed a separate dissenting statement. *Involved Key Issue*

Holding(s): The Court determined that H.B. 4327 was unconstitutional, following the precedent set in Oklahoma Call for Reproductive Justice v. Drummond. Although H.B. 4327 included a severability clause, the Court explained that severability analysis assessed whether any remaining provisions could stand independently after invalidating unconstitutional parts. In this case, severing key components of H.B. 4327 would either have led to a more restrictive statute or rendered the remaining provisions meaningless. Therefore, the Court found that both H.B. 4327 and S.B. 1503 were unconstitutional under the Oklahoma Constitution. 

Analysis: The Court analysis stated, “H.B. 4327 uses identical language as the statute in question in Oklahoma Call for Reproductive Justice v. Drummond, as such, pursuant to stare decisis this Court must also find it unconstitutional. See 2023 OK 24, ¶ 12, 526 P.3d 1123.”   

Kane Dissent: Justice Kane dissented. Justice Kane wrote “Were I to conclude that this case is exclusively resolved by the doctrine of stare decisis, I would dissent for the reasons given in my dissent in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123 (“OCRJ 1“). However, while this case and OCRJ 1 both deal with abortion, they present different legal and factual issues. I do not believe that application of OCRJ 1 fully resolves the current dispute.Merely applying stare decisis in this case could be interpreted as amplifying and expanding the reach of OCRJ 1, which I continue to assert was wrongly decided. I dissent.” 

Kuehn Dissented: Justice Kuehn stated, “I dissent for the reasons given in my dissent in Oklahoma Call for Reproductive Justice v. Drummond, 2023 OK 24, 526 P.3d 1123.”  

Applicable law(s): 

• “S.B. 1503 prohibits abortions after detection of a fetal heartbeat except in case of medical emergency. S.B. 1503 states in relevant part: ‘Sections 3 and 4 of this act shall not apply if a physician believes a medical emergency exists that prevents compliance of this act.’ S.B. 1503, § 5(A).” 
• “H.B. 4327 on the other hand is a total ban on all abortions unless the ‘abortion is necessary to save the life of a pregnant woman in a medical emergency’ or the ‘pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement.’ H.B. 4327, § 2. H.B. 4327 states that ‘“Medical emergency” means 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, including a life-endangering physical condition caused by or arising from the pregnancy itself.’ H.B. 4327, § 1(3).” 

Background: Advocacy organization and healthcare providers filed petition against State of Oklahoma and state court clerks challenging the constitutionality of two laws which criminalized abortion 

Prescott v. Oklahoma Capitol Pres. Comm'n, 2015 OK 54, 373 P.3d 1032. Order Denying Rehearing: Justices Reif and Edmondson concurred specially in denial of rehearing,. Justices Taylor and Gurich also concurred specially in denial of rehearing. *Involved Key Issue*

Holding(s): The Court denied a motion for rehearing regarding its judgment, which found that the placement of the Ten Commandments on Capitol grounds violated the Oklahoma Constitution.

Background: The Oklahoma Capitol Preservation Commission (Commission) filed for rehearing from this Court's opinion filed on June 30, 2015. ‘Generally, rehearing is granted: (1) to correct an error or omission; (2) to address an unresolved jurisdictional issue; or (3) to clarify the opinion.’”

Edmondson Concurrence: Justice Edmondson, concurring in the denial of rehearing, disagreed with the Attorney General's historical interpretation of Oklahoma's Article 2, Section 5, arguing that its origins trace back to Thomas Jefferson and Virginia, not the 1876 Blaine Amendment. He referenced past cases that connect this provision to earlier Virginia statutes. Edmondson stated that a monument on public property conveying religious speech must also have the potential for a secular interpretation, depending on its language and context. He contrasted two U.S. Supreme Court cases: McCreary County, which mandated the removal of a Ten Commandments monument due to its religious nature, and Van Orden, which allowed a similar monument to remain because of its secular context. He noted that federal law permits religious monuments if they also communicate a secular meaning, citing a Tenth Circuit case that acknowledged the secular significance of the Ten Commandments. However, he concluded that the isolated Ten Commandments monument at issue lacked any secular context or relevance, thus violating Article 2, Section 5 of the Oklahoma Constitution. Edmondson affirmed his concurrence in the denial of rehearing.

Taylor’s Concurrence: Justice Taylor concurred in the denial of the rehearing. He conclused, “The plaintiffs brought their challenge to the Ten Commandments monument's placement on state property and the Capitol Preservation Commission's actions under Article II, Section 5 of the Oklahoma Constitution. The monument is an icon of the Judeo–Christian system of religion and is now situated on state property. Its placement on state property benefits the Judeo–Christian system of religion in violation of Article II, Section 5 of the Oklahoma Constitution. The questions of whether artworks housed in the State Capitol or other alarmist extraneous issues raised violate Article II, Section 5 are not before this Court. Article II, Section 5 applies to all religions equally by preventing the use of public funds or property for any religious benefit. A conservative, strict construction of the law leads to the conclusion that the Ten Commandments monument's location on state property is a clear violation of a straightforward, unambiguous provision of the Oklahoma Constitution.”

Gurich Concurrence: Justice Gurich concurs with the denial of rehearing in the case, emphasizing that the Attorney General's petition rehashes issues already considered by the court. He notes that no new grounds exist for rehearing, citing a previous case as precedent. Despite the Attorney General’s arguments referencing the U.S. Supreme Court's decision on a similar Ten Commandments monument in Texas, Gurich highlights significant differences between the two cases. The Texas monument has been in place since 1961, part of a larger collection, and is situated in a park setting that diminishes its religious implications. In contrast, the Oklahoma monument was installed in 2012, specifically for reflective purposes, and faced legal challenges soon after its installation.

Applicable Law(s):

• “The text of Article 2, Section 5 states: § 5. Public money or property-Use for sectarian purposes. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”

Prescott v. Oklahoma Capitol Pres. Comm'n, 2015 OK 54, 373 P.3d 1032. Per Curiam. Justices Reif, Kauger, Watt, Winchester, Edmondson, Taylor, and Gurich concurred. Justices Combs and Colbert dissented without opinion. *Involved Key Issue*

Holding(s): The Court found held that a 10 Commandments monument placed on Capitol grounds was unconstitutional finding that the Article 2, section 5 of the Oklahoma Constitution prohibits using public property for religious purposes.

Background: Oklahoma citizens Bruce Prescott, James Huff, and Cheryl Franklin sought the removal of a Ten Commandments monument from the Capitol grounds, arguing that its placement violates Article 2, Section 5 of the Oklahoma Constitution, which prohibits using public property for religious purposes. The trial court ruled that the monument did not violate this provision and denied the request for an injunction. The appellate court later reversed.

Analysis: “In deciding whether the State's display of the monument in question violates Article 2, Section 5, the intent of this provision must be ascertained. Draper v. State, 1980 OK 117, ¶ 8, 621 P.2d 1142, 1145. Such intent is first sought in the text of the provision. Id. Words of a constitutional provision must be given their plain, natural and ordinary meaning. Lepak v. McClain, 1992 OK 166, ¶ 7, 844 P.2d 852, 854”. The Court found “[t]he plain intent of Article 2, Section 5 [wa]s to ban State Government, its officials, and its subdivisions from using public money or property for the benefit of any religious purpose. Use of the words ‘no,’ ‘ever,’ and ‘any’ reflects the broad and expansive reach of the ban. See Coffee v. Henry, 2010 OK 4, ¶ 3, 240 P.3d 1056, 1057.” The Court noted that the legislature had relied on United States Supreme Court case of Van Orden v. Perry which “ruled that the Texas Ten Commandments monument did not violate the Establishment Clause in the First Amendment to the United States Constitution.” However the Court found the issue was whether the monument violated the Oklahoma Constitution not the Establishment Clause. The Court stated regarding the “‘historic purpose’ justification, [that] the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths.

Applicable Law(s):

• “The text of Article 2, Section 5 states: § 5. Public money or property-Use for sectarian purposes. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”

Treat v. Stitt, 2020 OK 64, 473 P.3d 43, as corrected (July 22, 2020). Justice Winchester authored the opinion in which Justices Gurich, Darby, Kauger, Combs, Reif, Rowe concurred. Justice Rowe filed a separate concurrence. Justice Kane dissented. Justices Edmondson and Colbert were recused.   

Holding(s): The Court granted declaratory relief concluding that the Governor did not have the authority to enter into new tribal gaming compacts with Comanche Nation and Otoe-Missouria Tribes. 

Background: The case involved the authority of Governor Stitt to negotiate tribal gaming compacts with the Comanche Nation and Otoe-Missouria Tribes. The compacts, aimed at increasing state gaming revenues and were deemed approved by the U.S. Department of the Interior. THe Court asked whether the Governor could bind the state to the compact. 

Analysis: The decision emphasized the principle of separation of powers, highlighting that the legislative branch establishes public policy and law, while the Governor's role is primarily to execute those laws. The State-Tribal Gaming Act, enacted by the Legislature, defined the terms for tribal gaming and prohibits the types of Class III gaming included in the compacts.  

Applicable Law(s):  

• Okla. Const. art. V, § 1.
• Okla. Const. art. VI, §§ 11.
• 3A O.S. Supp. 2018, §§ 261-282. “The State-Tribal Gaming Act expressly bars house-banked card games, house-banked table games involving dice or roulette wheels, and event wagering.” 

Oklahoma Call for Reproductive Justice v. Drummond, 526 P.3d 1123 (2023). Per Curiam. Justice Kauger concurred and filed an opinion joined by Justices Edmondson and Combs. Justice Combs concurred specially and filed an opinion joined by Edmondson. Justice Kane filed a dissenting opinion. Justice Rowe filed a dissenting opinion. *Involved Key Issue*

Holding: The Court granted Petitioner declaratory relief as to § 1-731.4 but denied declaratory relief as to § 861.  

Background: Petitioners, Tulsa Women’s Reproductive Clinic, Planned Parenthood organizations, and Oklahoma Call for Reproductive Justice challenged the constitutionality of two Oklahoma statutes (21 O.S. 2021, § 8612 and 63 O.S. Supp. 2022, § 1-731.43) that criminalized abortions. The Petitioners argue that these laws violate inherent rights and substantive due process as guaranteed by the Oklahoma Constitution, asserting that, following the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, that the Oklahoma Constitution provides an independent right to terminate a pregnancy that remained intact. They also claimed the statutes were unconstitutionally vague and that one statute was implicitly repealed by another.  

Analysis(s): The Court first held that the Oklahoma Constitution protects a limited right to abortion. The Court stated, “the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life. We would define this inherent right to mean: a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman's physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman's life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy. Absolute certainty is not required, however, mere possibility or speculation is insufficient.” Looking at the two statutes the Court first held that § 1-731.4's requirement for an actual medical emergency could endanger women's lives and failed strict scrutiny, rendering it void and unenforceable. The Court concluded that § 861 did not violate the Constitution, as it allowed abortions necessary to preserve a woman's life. The Court ruled that the statute was not unconstitutionally vague, noting it provided clear guidance on prohibited conduct. The Court distinguished § 1-731.4 from § 861 noting that the language “except to save the life of a pregnant woman in a medical emergency” significantly differs from “preserve her life” in § 861.   

Kauger Concurrence: Justice Kauger concurred with the majority opinion, affirming the constitutionality of § 861 while addressing the inconsistency of § 1-731.4. She noted that the right to terminate a pregnancy to preserve a mother's life had been firmly established in Oklahoma law since territorial times and was explicitly protected by the state’s constitution. Justice Kauger argued that there was no requirement for a medical emergency to exercise this right, as the constitution guaranteed fundamental rights to life and liberty. She highlighted that Oklahoma's Constitution preserved existing rights, including the right to terminate a pregnancy, and that this right had been reaffirmed throughout history. The enactment of § 1-731.4, which limited this right, contradicted the protections provided by the state’s constitution, which she argued aims to ensure broader rights than those afforded by the federal constitution. Justice Kauger concluded that § 1-731.4 undermined advancements in women's autonomy and was incompatible with Oklahoma's constitutional principles. 

Kane Dissent: Justice Kane dissented from the majority opinion, arguing that the Oklahoma Constitution does not enshrine any right to abortion, whether expressed or implied. He criticized the majority for engaging in legal reasoning that, in his view, misinterpreted constitutional provisions to create a right that does not exist. Kane noted that the Oklahoma Constitution is detailed and should not be read to imply fundamental rights not explicitly stated. He pointed out that while historical statutes included exceptions for the life of the mother, this does not equate to recognizing a fundamental right to abortion. He emphasized that the interests of the unborn were not considered by the majority, and he called for a more balanced dialogue on the issue, which should involve the people of Oklahoma rather than judicial reinterpretation. 

Rowe Dissent: Justice Darby emphasized that the Oklahoma Constitution granted political power to the people, particularly regarding abortion policy in the post-Roe era. He criticized the majority for rushing to impose its own policy preferences rather than allowing Oklahomans to engage democratically in shaping abortion rights. Darby argued that the majority's ruling created confusion rather than clarity and reflected an attempt to establish a judicial policy that was not the court's role. Ultimately, he believed that the divisive issue of abortion should be resolved by the people through democratic means.

Darby Dissent: Justice Darby concluded that the statutes in question were constitutional under a rational basis standard and reiterated his belief that the court should not intervene in a matter better decided by the electorate.In his dissent, Justice Darby expressed strong disagreement with the majority's ruling, which he felt improperly defined a new constitutional right to abortion in Oklahoma based on an existing statutory exception. He argued that the majority's analysis contradicted the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which returned regulatory authority over abortion to individual states and their elected representatives. He argued that the majority misapplied the standard of review, applying stricter scrutiny than what is consistent with federal or Oklahoma law, thereby failing to recognize the state's legitimate interests, including the protection of unborn life. He emphasized that the determination of abortion laws should be left to the people of Oklahoma through their legislature, rather than imposed by the court. 

Kuehn Dissent: Justice Kuehn dissented arguing that the Oklahoma Constitution does not explicitly protect a woman's right to terminate her pregnancy. He argued that the Court should exercise judicial restraint and refrain from creating rights not explicitly stated in the Constitution. Instead of interpreting existing language as providing such protection, Kuehn maintained that the responsibility lies with the legislature and the people of Oklahoma to decide on this issue. Justice Kuehn argued that the Oklahoma Constitution had never included language protecting the right to terminate a pregnancy, despite legislative provisions allowing exceptions for preserving a woman's life. He further argued that the general language in the Constitution regarding the inherent right to life does not suffice to support a specific right to abortion.  

Applicable Law(s):  

• “The Petitioners assert a woman's right to terminate a pregnancy is protected by article II, section 7 of the Oklahoma Constitution (the state due process section), and article II, section 2 of the Oklahoma Constitution (inherent rights). Article II, section 7 of the Oklahoma Constitution provides: No person shall be deprived of life, liberty, or property, without due process of law.” 
• 21 OK Stat § 861 (2023) (whole text not included in opinion) prohibits abortions unless "necessary to preserve her life[.]"
• 63 OK Stat § 1-731 (2023) “first defines a ‘medical emergency’ as:  [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.  Next, it provides in paragraph (B)(1):Notwithstanding any other provision of law, a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.”