Oklahoma leaders are requesting the dismissal of a case filed against them by the Center for Reproductive Rights in September. It challenges two state abortion bans as they apply to pregnant people who receive a fatal fetal diagnosis.
That diagnosis happens when a pregnancy is likely to end in miscarriage or stillbirth or, in the event of live birth, the infant will not survive with or without medical support.
The lawsuit, filed in the Oklahoma County District Court, now includes three Oklahoma mothers – Magon Hoffman, Sheena Hamlin and Elizabeth Fitzgerald – who are suing state leaders after they were denied access to an abortion for their effectively nonviable pregnancies and forced to seek care outside of the state. Click here to learn more about lead plaintiff Hoffman’s experience.
Defendants argue the state Constitution does not offer a right to end a pregnancy to individuals following a fatal diagnosis, unless it is to preserve their life.
What does the Center for Reproductive Rights case say?
Oklahoma's abortion laws are some of the strictest in the nation. The state's only exception is to preserve the mother's life.
The Center for Reproductive Rights lawsuit — which also includes two OB-GYNs and the Oklahoma Call for Reproductive Justice — argues these bans violate pregnant Oklahomans' rights to life and liberty, substantive due process and equal protection.
“Being forced to continue a pregnancy in these circumstances inflicts tremendous suffering on the pregnant patient and her family,” the lawsuit reads. “If the patient plaintiffs in this case had not fled the state to obtain abortion care, they would have had to continue their pregnancies only to risk their health and lives to give birth to babies who were unlikely to survive birth or ever leave the hospital.”
In a March 2023 ruling, the Oklahoma Supreme Court recognized Oklahomans' right to life-preserving abortions. The court stated if a woman’s physician determines to a reasonable degree of medical certainty that the continuation of the pregnancy will endanger the woman’s life, she has an inherent right to choose to terminate her pregnancy.
Plaintiffs are seeking the same constitutional protections by asking the court to prevent these abortion bans from applying to pregnant Oklahomans who have received a fatal fetal diagnosis.
“While the Oklahoma Supreme Court's decision makes clear that neither imminent harm nor absolute certainty is required, the pervasive anti-abortion climate in the state has made doctors and hospital counsel wary of providing care unless they are certain that a particular patient meets the life-preserving care exception, even when this means waiting for the patient to develop an infection or other complications,” the lawsuit reads.
What are defendants arguing?
The lawsuit's defendants include Oklahoma Attorney General Gentner Drummond, Oklahoma County’s district attorney and other state medical leaders.
In their motion to dismiss, they said circumstances described by the three women are “painful by any measure,” and nothing in their motion disputes those accounts or minimizes them. They also said this motion doesn’t take a position on whether Oklahoma law should permit abortion when a pregnancy has received a fatal fetal diagnosis.
“That is a question of public policy,” the motion reads. “Under the Oklahoma Constitution, it belongs to the Legislature and to the people, who may answer it by statute, by referendum, or by initiative.”
The motion argues the Oklahoma Supreme Court has already decided the state’s near-total abortion ban doesn’t violate women’s inherent constitutional rights because it allows them to terminate a pregnancy when necessary to preserve their lives. Defendants said a lower court cannot reexamine an issue the Oklahoma Supreme Court decided on unless it is invited to by the court.
The Oklahoma Supreme Court made no ruling in 2023 on whether the state Constitution provides a right to an elective termination of a pregnancy. It defined that as one made outside of preserving the life of the pregnant woman.
The motion said the definition is an “imperfect fit” for the wanted pregnancies described by the three patient plaintiffs. But it argues their fetal fatal diagnoses claims fall outside the right to terminate a pregnancy as defined by the Oklahoma Supreme Court.
Defendants also argue plaintiffs have no standing because they allege past injuries, not present or imminent ones. They say this is also true for physician plaintiffs Dr. Elizabeth Pinard and Dr. Sarah Mashburn, who didn’t allege pending or threatened prosecution, licensure proceeding or other enforcement action.
Caroline Sacerdote, a senior staff attorney from the Center for Reproductive Rights, said in an emailed statement that Oklahoma is attempting to prevent the women in this case from getting their day in court.
“It’s an insult to them and the countless other families that are suffering,” Sacerdote said. “If state politicians really cared about pregnant people and their health, they would be doing everything they can to make sure they can get healthcare. We cannot let the state shirk its responsibility to its citizens. Oklahomans deserve justice.”
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