Abortion Industry’s Disingenuous Response to ACLJ and Oklahoma Legislators’ Brief

As we recently reported, the American Center for Law & Justice (ACLJ), along with 41 Oklahoma state legislators, filed an amici curiae brief with the Oklahoma Supreme Court in defense of the state’s pro-life laws.

Our brief was filed in response to a lawsuit filed by members of the abortion industry who are asking the Oklahoma Supreme Court to “create” a right to abortion in the state’s Constitution. The abortion industry members (petitioners) are challenging two Oklahoma laws that restrict abortion: One was enacted in 1910 (and was in effect prior to Roe v. Wade), and the other was enacted earlier this year.

In response to our brief, petitioners mischaracterized our arguments. They claim—wrongly—that we contend that the court lacks the authority to interpret the state’s Constitution. Petitioners’ mischaracterization seeks to avoid addressing the merits of our actual argument: that the court should not construe the Oklahoma Constitution as petitioners want and “create” an abortion right when one does not exist.

In our brief, we explain that the Oklahoma Supreme Court has never “found” an abortion right in the state’s Constitution, which is not surprising since Oklahoma has consistently prohibited abortion since 1890. The fact that enforcement of the state’s abortion laws had to be curtailed due to the United States Supreme Court’s decision in Roe (until that erroneous decision was overturned this year in Dobbs) did not constitute an amendment to the Oklahoma Constitution.

Contrary to petitioners’ red-herring argument, we explain in our brief that the petitioners are wrongly asking the Oklahoma Supreme Court to strip the legislature of its authority to make abortion policy. We also note that petitioners are wrongly asking the court to exceed its constitutional authority and exercise raw judicial power by creating a constitutional abortion right when one does not exist. In other words, while the court has the authority to determine whether the Oklahoma Constitution, as it is written, includes the type of “right” that the petitioners assert, the answer to that question is abundantly clear: It does not.

The Oklahoma lawsuit is one of many lawsuits occurring in courts across the country since Dobbs restored the authority to address the abortion issue to the states, where it existed before Roe. The ACLJ is engaged in those battles. Along with filing our Oklahoma brief, we have filed briefs with the Supreme Courts of Kentucky, Michigan, and South Carolina, defending their pro-life laws against lawsuits seeking to establish abortion rights under their state Constitutions.

The ACLJ will continue to fight to protect the unborn, and we will continue to keep you informed about our efforts.