Last week, the Arizona Supreme Court shocked many throughout the country by reviving an abortion ban from 1864. Oklahoma has been laboring under an almost-verbatim pre-statehood ban since June 24, 2022, the day the U.S. Supreme Court reversed Roe v. Wade.
Just as in Arizona, Oklahoma’s Legislature adopted its abortion ban well before women earned the right to vote. In fact, Oklahoma’s abortion ban dates from 1890 and was not even the handy work of Oklahoma’s territorial Legislature but rather was borrowed from the Dakota Territory.
Neither the records of the territorial nor state legislature document any discussion or deliberation of the abortion ban. And there is no indication that anyone in the territory ever voted for the ban or voted to adopt any part of the Dakota Territory law at all.
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Just as in Arizona, Oklahoma punishes those who provide abortion care with two to five years in prison.
Just as in Arizona, Oklahoma’s abortion ban carves no exception for rape or incest. In Oklahoma, an estimated 4,529 pregnancies caused by rape occurred in the 18 months following the Supreme Court’s reversal of Roe in the Dobbs v. Jackson Women’s Health decision.
The 1864 Arizona ban permits abortion care in only the narrowest of circumstances, in order to “save” the pregnant woman’s life. The 1890 Oklahoma abortion ban creates a legal exception to “preserve” the life of the pregnant woman.
The Oklahoma Supreme Court recently upheld the 1890 ban after it concluded that “preserve” offers more latitude than “save” in that a pregnant woman does not need to suffer a life-endangering medical emergency prior to legally accessing abortion care.
Nonetheless, Oklahoma has not reported a single legal abortion since Dobbs. Neither hospitals nor emergency room doctors understand where and how to draw the line between legal and illegal abortion care, and, in the face of criminal penalties, err on the side of caution.
As a result, Oklahoma hospitals routinely refuse abortion care to women who have painfully dangerous, life-threatening, non-viable pregnancies. One hospital even told a pregnant woman to wait in her car in the hospital’s parking lot until “actively crashing” or “on the verge of a heart attack.”
Unlike Arizona’s 1864 ban, Oklahoma’s 1890 ban targets not merely those who provide but also those who “advise” abortion care. Neither the legislative history, the case law, nor any advisory opinion defines “advise,” leaving a cloud of ambiguity around many questions.
If I drive a friend to Kansas for a legal abortion, am I “advising”? Do I “advise” if I tell a pregnant colleague, or even a patient, that abortion remains a legal option in many states? Presumably the answer to these questions — and a myriad of others — is “no.” Yet the specter of two- to five-year prison sentences inevitably chills the helping hand.
Oklahoma’s criminal abortion ban relegates women who want to assert agency over their reproductive health and futures to the lonely, even life-threatening shadows. Welcome back to the 1890s.
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Janet K. Levit, professor of law at the University of Tulsa College of Law, wrote this op-ed with research from TU students Logan Roehm (juris doctorate candidate 2024), Cameron Skinner (juris doctorate candidate 2024) and Stephanie Smith (juris doctorate candidate 2025) as part of the Reproductive Justice Practicum at the TU College of Law.