Okla. provider asks state Supreme Court to declare admitting privileges law unconstitutional in light of Whole Woman's Health

July 13, 2016 — The Center for Reproductive Rights (CRR) on Tuesday asked the Oklahoma Supreme Court to assess the constitutionality of a state admitting privileges law (SB 1848) in light of a U.S. Supreme Court decision overturning a similar antiabortion-rights requirement in Texas, AP/KOCO reports (AP/KOCO, 7/12).

Background on Okla. law

CRR filed a lawsuit against the Oklahoma statute on behalf of Larry Burns, an abortion provider who owns the Abortion Surgery Center in Norman, Oklahoma. According to the lawsuit, the law would force Burns to close the clinic because he has not been able to meet the admitting privileges requirement after applying at 16 hospitals. Burns performs about 44 percent of abortion procedures in the state.

In October 2014, Oklahoma County District Court Judge Bill Graves ruled the admitting privileges law could take effect. CRR appealed the decision to the state Supreme Court.

In November 2014, the Oklahoma Supreme Court temporarily blocked enforcement of the law, which had taken effect earlier that month. In a unanimous decision, the court wrote that the law would remain on hold until it is "fully and finally litigated." They noted that the decision was not an opinion on the legality of the law.

In July of last year, District Judge Don Andrews said more information was needed to answer questions presented in the lawsuit, temporarily leaving in place the injunction against the law. In February, Andrews ruled that the law is constitutional, although he said the state Supreme Court's temporary injunction would remain in place.

Earlier this year, CRR asked the state Supreme Court to review Andrews' ruling upholding the law (Women's Health Policy Report, 3/18).

SCOTUS ruling in Texas requirements

Last month, in an unrelated lawsuit, the U.S. Supreme Court in Whole Woman's Health v. Hellerstedt struck down two provisions in a Texas omnibus antiabortion-rights law (HB 2). One provision required that abortion clinics in the state meet the same building standards as ambulatory surgical centers, and the other required abortion providers to have admitting privileges at local hospitals.

In a 5-3 decision, the high court held that both contested provisions violated the U.S. Constitution by imposing an undue burden on a woman seeking abortion care (Women's Health Policy Report, 6/27).

Latest developments in Okla. lawsuit

In the latest filing, Burns asked the state Supreme Court to allow him to file briefs supporting his argument that the U.S. Supreme Court's ruling on the Texas law nullifies Oklahoma's admitting privileges law.

In his request, Burns contends that the U.S. Supreme Court's ruling invalidated Texas' admitting privileges requirement because it failed to advance women's health, and as a result did not support any valid state interest. He wrote, "[Oklahoma] has presented no medical evidence in this case that differs in kind from the evidence that the state of Texas presented in Whole Woman's Health [v. Hellerstedt]."

According to the filing, a law regulating abortion care is only constitutional if its benefits supersede the burden it imposes. Burns' filing reads, "The burdens of the Oklahoma requirement are comparable to the burdens of the Texas requirement struck down in Whole Woman's Health ... Enforcement of the admitting privileges requirement in Oklahoma would force the closure of one of only two licensed facilities in the state -- causing the number of medical facilities proving abortions in the state to drop in half -- and lead to increased driving distances, a reduction in the availability of abortion services in Oklahoma, and a delay or total obstruction of access to services."

Separately, Ilene Jaroslaw, senior staff attorney at CRR, said, "Oklahoma's clinic shut-down law, which is virtually identical to the Texas law struck down by the U.S. Supreme Court, is presumptively unconstitutional ... The highest court of the land reaffirmed that states may not deprive women of their fundamental rights by passing sham laws, such as this, which serve no valid purpose" (Hoberock, Tulsa World, 7/13).