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Oklahoma could ban most abortions if US Supreme Court overturns Roe v. Wade

Oklahoma is one of 12 states that could prohibit nearly all abortions if the U.S. Supreme Court overturns longstanding abortion protections. 

As the nation's high court weighs whether to let stand a Mississippi law that bans most abortions after 15 weeks, what the justices decide could have far-reaching implications on abortion access across the country.

The GOP-led Oklahoma Legislature passed and Gov. Kevin Stitt signed this year a "trigger" law that would ban most abortions in the state if the Supreme Court overturns its 1973 Roe v. Wade decision legalizing abortion and its 1992 ruling in Planned Parenthood v. Casey that reaffirmed Roe.

Related:Oklahoma abortion clinics see surge in out-of-state patients following new Texas law

If the precedents are overturned, Oklahoma's "trigger" law, introduced by Senate Pro Tem Greg Treat, R-Oklahoma City, could take effect after the state's attorney general certifies the previous Supreme Court decisions have been invalidated. 

Senate Pro Tem Greg Treat

Once that happens, Oklahoma would automatically repeal a slew of abortion regulations. That would allow the enforcement of a state law from 1910 that makes abortion illegal unless it's necessary to save the life of the mother.

"It's the reason I originally ran for office, and it's the core of who I am — I want to end abortion in the United States and specifically in Oklahoma," Treat said. 

Other states with "trigger" laws are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Texas and Utah. 

Abortions will continue no matter what, activist says

Reproductive rights activists say outlawing abortions won't stop many women from seeking out the procedure, whether it means they have to travel to other states or pursue an abortion through other means. 

Tamya Cox-Touré, a co-chair of the Oklahoma Call for Reproductive Justice, said she expects more women will turn to medication abortions in the event that more states severely restrict abortion access. A woman in the early stages of her pregnancy can undergo a medically induced abortion by taking a series of prescription pills. 

Cox-Touré

Although the U.S. Food and Drug Administration last month made permanent a pandemic-era rule that allowed patients to receive abortion pills in the mail, undoing a requirement that the pills be obtained in person, it's unclear whether the change will stand in Oklahoma.

GOP lawmakers last year passed the "Oklahoma Abortion-Inducing Drug Risk Protocol Act" that prevents abortion pills from being delivered through the mail. That law and several others are on hold pending a lawsuit challenging their constitutionality

Related:Oklahoma Supreme Court temporarily blocks 3 anti-abortion laws

"What we know is overturning Roe doesn't necessarily ban abortion; it just criminalizes abortion," Cox-Touré said. "When someone wants to end their pregnancy, they will find any way to end their pregnancy." 

Recent polling from Oklahoma City's Amber Integrated showed most Oklahomans oppose banning all abortions.

About 55% of 500 registered voters polled between Dec. 15-19 said Oklahoma should not ban all abortions if the U.S. Supreme Court overturns Roe v. Wade. Roughly 31% of those surveyed said the state should ban all abortions, and 14% were unsure. 

About 78% of Democrats surveyed said the state shouldn't ban abortion entirely, while 40% of Republicans agreed and 48% disagreed. 

The poll had a margin of error of 4.38%.

All eyes on the US Supreme Court

Treat wouldn't hazard a guess at what the Supreme Court, which has a  6-3 conservative majority, will decide in the Mississippi case, but he said he prays the justices overturn Roe. 

When hearing oral arguments recently, the court appeared inclined to let stand Mississippi's anti-abortion law. 

Related:Supreme Court signals support for Mississippi 15-week abortion ban with Roe v. Wade in balance

But what abortion opponents hope for, and what reproductive rights supporters fear, is that the court wades beyond the 15-week question and reverses the precedent it set guaranteeing a constitutional right to an abortion. The court is not expected to issue its decision until the summer. 

At issue in the Mississippi case is whether all restrictions on abortion before fetus viability are unconstitutional. Viability is typically considered to be 24 weeks or later.

The viability standard, which says a woman has a constitutional right to seek an abortion until a fetus can survive outside the womb, was established in Roe and affirmed in subsequent court decisions. 

It's possible the court won't rule on the broader issue of Roe v. Wade, and instead, will just decide whether Mississippi's law is constitutional. 

In that scenario, however, Cox-Touré said she's positive Oklahoma lawmakers would introduce legislation to try to copy the Mississippi law. Oklahoma currently bans most abortions after 20 weeks. 

"It is very possible that the court could simply uphold the Mississippi case without overturning Roe or Casey v. Planned Parenthood," Cox-Touré said. "Therefore, abortion care would very much be in existence in Oklahoma." 

Although a 15-week ban would have an impact, Cox-Touré said the majority of Oklahomans seeking an abortion are in their first trimester. Of 3,772 abortions performed in Oklahoma in 2020, only about 2% were performed after 15 weeks, according to state health data

She also expressed confidence that abortion providers would still be able to offer care to those in need. 

A perennial topic in the Legislature

As the nation waits for the Supreme Court to act, the Oklahoma Legislature is likely to further restrict abortion access during the 2022 legislative session. 

Calling himself the country's "most pro-life governor," Gov. Kevin Stitt has vowed to sign any anti-abortion bills that make it to his desk. 

At least one GOP legislator already plans to introduce legislation to mirror Texas' Senate Bill 8 that prohibited most abortions after six weeks and allows private citizens to sue abortion providers and anyone who helps a woman seek an abortion after a "fetal heartbeat" is detected. 

After SB 8 took effect, Oklahoma abortion clinics were inundated with patients from Texas.   

But legislation similar to what has been implemented in Texas is likely to find support among the GOP majority in the state Legislature. Treat said he would support such a bill. 

"We're gonna continue to try to make sure that life is valued in Oklahoma, we're not just going to wait on the Supreme Court to make a decision," Treat said. "It is my hope and prayer that the Supreme Court will make the right decision, but I'm not resting completely on that as my only hope."