During the final days of the 2023 legislative session, the anti-abortion group Oklahomans For Life sent its members an early-morning email marked “URGENT.”
Tony Lauinger, chairman of the group, urged support for Senate Bill 368, which would have made it easier for survivors of rape and incest to obtain legal abortions in Oklahoma.
“Those thinking SB 368 is not pro-life ‘enough’ are thinking short-term rather than recognizing the reality of pro-abortion momentum since Roe V. Wade was overturned last June,” Lauinger wrote. He did not respond to requests for comment.
Voters in six other states have defeated abortion-ban proposals or have enshrined abortion access into state constitutions through statewide votes last year. An Amber Integrated poll conducted in August 2022 found that 62% of likely Oklahoma GOP runoff voters said they supported access to abortion in cases of rape, incest or medical emergencies. In his email, Lauinger also mentioned an internal poll where 71% of Oklahoma voters supported exceptions for rape and incest of a minor reported to law enforcement.
Currently, state law bans all abortions except to save the life of the mother.
Anti-abortion lawmakers say they are in a dilemma: Support legislation that could make it easier for some women to get abortions, or risk successful legal challenges and backlash from voters.
To reduce momentum behind a potential state question restoring abortion access in Oklahoma and avoid future legal challenges, some conservative lawmakers want to narrow the state’s abortion ban. Sen. Julie Daniels, R-Bartlesville, said efforts failed this year after Gov. Kevin Stitt wouldn’t commit to supporting Senate Bill 368, which Stitt’s office disputes. Several lawmakers also said they wouldn’t support any exceptions beyond saving the life of the mother, Daniels said.
“What happened was a difference of opinion among pro-life legislators,” said Daniels, who has written many of the state’s abortion laws and tried to run Senate Bill 368. “But short of those exceptions, the pro-life movement is losing those wars in other states. We didn’t want that to happen to us.”
Abortion rights advocates say even if lawmakers add exceptions to state law, local groups will continue to push for access to abortion.
“We are clear in our position that Oklahomans need and deserve abortion access,” said Tamya Cox-Touré, director of the ACLU of Oklahoma. Cox-Touré said it’s surprising lawmakers think that adding exceptions for rape and incest of a minor reported to law enforcement would stop a potential state question. “We know that an overwhelming number of attacks and sexual assaults go unreported. These exceptions are unworkable.”
States with rape and incest exceptions typically require a woman to prove that an assault occurred by filing a police report. But most sexual assaults nationwide go unreported, according to the Rape, Abuse and Incest National Network.
Requiring someone who has been sexually assaulted to report to law enforcement can be traumatizing and difficult, especially if they were abused by an intimate partner or family member, said Priya Desai, a board member with Oklahoma Call for Reproductive Justice
And despite the existing exception for saving the life of the mother, women have had to travel out of state to receive emergency health care because Oklahoma doctors said they didn’t think they had the legal coverage to perform the abortion procedure, according to The Oklahoman.
“They think that these exemptions are going to pacify people, but in reality, the truth is that these exemptions don’t really help that many people,” Desai said.
In February, when Daniels first presented a version of the bill to clearly state exceptions in state law, she told other lawmakers that she didn’t expect rape and incest exceptions to be used frequently. Since last spring when Oklahoma’s most recent abortion bans were approved, no abortions have been reported to the State Department of Health, but it’s unclear how the new laws have affected reporting requirements.
Oklahoma lawmakers enacted several, sometimes conflicting, abortion bans last year in anticipation of Roe V. Wade being overturned. Only one of those bills contained exceptions for rape and incest.
The Oklahoma Supreme Court overturned those bans in recent weeks after abortion rights groups sued and the court ruled that the Oklahoma constitution protects a woman’s right to have an abortion to save her own life. Now, the state’s abortion ban is only propped up by a 1910 law that bans abortions except to save the life of the mother.
The state Supreme Court’s actions have made lawmakers feel more urgency to make state laws on abortion consistent and include some exceptions, said Sen. Jessica Garvin, R-Duncan. But some legislators have concerns about backlash from anti-abortion voters if they include exceptions throughout state abortion laws.
“To take a stance on exclusions is difficult for some because maybe they are worried about the next election,” Garvin said. “Unfortunately, there are a lot of people who are not willing to publicly talk about their stance on abortion. But these are conversations that have to be had.”
Senate Pro Tem Greg Treat, R-Oklahoma City, told reporters this spring he would support clarifying exceptions to the abortion ban. By the end of the session, Treat said the idea was “controversial” and wouldn’t advance this year.
“Although it’s not something that I would be extremely excited about, I would know that it would protect our ability to protect unborn life to a much greater level if a state question were to come forward,” Treat said in March.
Stitt said during his 2022 gubernatorial campaign that he would sign a bill that clearly defined exceptions for rape and incest. A representative for Stitt’s office said it was “absolutely not true” that he wouldn’t commit to supporting Senate Bill 368 this session.
“The governor wasn’t noncommittal, rather he hadn’t yet expressed one way or another before it was too late for the bill to advance,” spokeswoman Kate Vesper said.
Republican lawmakers nationwide are considering exceptions to abortion bans as a way to ward off state questions. Legislatures in other states and in Oklahoma have looked to make the initiative petition process more difficult, as well.
In recent years, Oklahoma lawmakers have tried to pass bills that would increase the number of signatures needed to file an initiative petition, raise the percentage of voters that have to approve a state question and lengthen the time to challenge petitions. Since 2016, Oklahoma voters have approved sweeping criminal justice reforms, expanded Medicaid and legalized medical marijuana — all policy areas the Legislature drug its feet on.
As the state’s Republican majority tries to figure out what approach it will take to clarify laws in the future, local abortion rights groups are preparing to launch an education campaign with an eye on an eventual statewide vote on reproductive rights.
Advocacy groups say a state question is one way to restore abortion access in the state. The groups could also bring additional lawsuits to the state Supreme Court in hopes of a ruling that people have the right to elective abortions in the state, something the court hasn’t done in past court cases.
Local abortion rights organizations are also working with groups in other states that have had successful state questions. One initiative petition was filed in Oklahoma last year to restore abortion access, but it was quickly withdrawn.
“We know that when these measures are put to the people through strategic, comprehensive, community-led efforts, abortion wins,” Cox-Touré said. “We know that this is going to be a multi-million dollar effort, and we have to get it right.”
Voters in other conservative states have pushed back against abortion bans in statewide votes, including a landslide victory in Kansas for abortion rights. Advocates say that gave them hope a state question on abortion access could eventually succeed in Oklahoma.
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