Oklahoma lawmakers passed 5 contradictory abortion bans. No one knows which laws will be enforced.
- In the past year, Gov. Kevin Stitt of
Oklahomahas signed five contradictory abortionbans into law.
- Few of the 42 lawmakers who sponsored the bills could agree on which exemptions will prevail.
This story is part of an investigative series from Insider examining the demise of abortion rights in so-called "trigger law" states. It was originally published on June 2, 22 days before the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that abortion is no longer a constitutionally protected right. Read all the stories from "The First 13" here.
Oklahoma's Republican governor, Kevin Stitt, signed into law the country's most restrictive abortion measure last Wednesday, banning nearly all abortions in the state.
House Bill 4327 took effect immediately, even as Roe v. Wade, the 1973 Supreme Court decision enshrining abortion access, remains the law of the land. It's a so-called vigilante law that empowers private citizens to sue anyone who "aids or abets" an abortion — whether that's doctors, friends, or family members — for up to $10,000 in damages. A law piloting that enforcement mechanism has been in effect in Texas since last fall.
"I promised Oklahomans that as governor I would sign every piece of pro-life legislation that came across my desk," Stitt said after signing the bill, "and I am proud to keep that promise."
These laws have made Stitt a darling in anti-abortion circles. But his commitment to signing every abortion ban the Legislature sends him threatens to create chaos in Oklahoma. HB 4327 is the fifth ban he's signed into law in a little more than a year.
The laws at times contradict each other, offering starkly different rules for when doctors are permitted to provide care — and raising high-stakes questions about what enforcement will actually look like in Oklahoma. Lawmakers contacted by Insider were in disagreement about what the law in Oklahoma will be.
The newest law, which bans abortion starting at fertilization, has exemptions for pregnancies that result from rape or incest that are reported to law enforcement. But a bill Stitt signed less than a month ago, Senate Bill 1503, a vigilante-style law that bans all abortions after six weeks, has no exemptions for rape or incest.
Stitt has also signed two slightly different "trigger laws," Senate Bill 918 and Senate Bill 1555, that criminalize abortion if Roe v. Wade is overturned, as a leaked Supreme Court draft decision suggests is likely.
Yet another law — Senate Bill 612, which Stitt signed in April — makes providing an abortion a criminal offense punishable by up to 10 years in prison or a $100,000 fine. It has no exemptions for rape or incest.
The incoherence has already had real-world effects. Andrea Gallegos, the executive administrator of the Tulsa Women's Clinic, described in an affidavit what happened the day SB 1503 took effect in early May. A patient who was seven or eight weeks pregnant called to say she was running late.
"She told me that she had been raped and asked me if there was an exception for people who had been raped. I had to tell her that S.B. 1503 has no exception for rape," Gallegos said. "I said that we would marshal any resources we could to help her, but she did not come to the clinic. We were unable to help her."
Three weeks later, Stitt signed the bill with the rape exemption.
During a press call, Rabia Muqaddam, a senior staff attorney at the Center for Reproductive Rights, described Oklahoma legislators as "extraordinarily sloppy."
The Legislature "repeatedly enacts overlapping laws in an insane way that makes no sense," Muqaddam said. "There's really no rhyme or reason other than a radical attempt to just confuse people, create chaos, and wreak as much havoc as they can possibly do on people who are seeking abortion and the providers who provide it."
'We do realize some of these may conflict'
Insider contacted all 42 lead sponsors and cosponsors of the five statutes, asking the legislators what will happen in the state if Roe is overturned as expected. Insider asked how the laws contradict each other, whether exemptions for rape and incest will be honored, and whether the state plans to offer guidance to physicians so they know how to provide lawful care.
Insider also reached out to Stitt's office and to the state's two dozen district attorneys, who will be responsible for enforcing the pileup of contradictory laws. The few who responded couldn't answer basic questions about enforcement. "I am certainly not the correct person to talk to about this issue," Laura Austin Thomas, the district attorney for Payne County, which has a population of about 80,000, told Insider. "I currently know nothing. I'm sorry."
Few of the legislators who responded to Insider were able to provide detailed answers about how these contradictory laws would be enforced. Some offered conflicting interpretations about Oklahoma's post-Roe landscape. None said they had provided guidance to physicians or prosecutors about what exactly these laws mean, even though these professionals could be expected to grapple with life-or-death situations in a matter of weeks.
As Insider previously reported, health and law-enforcement agencies in the 13 states with trigger laws that take effect if the Supreme Court strikes down Roe — Oklahoma is joined by Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Tennessee, Utah, Texas, and Wyoming — have created no plans for how to implement those laws.
"I apologize for not knowing specifically which bills are which and right now, we are in the middle of the final week of session," Republican Sen. Jessica Garvin, a cosponsor of HB 4327, told Insider by email in response to a question about how that statute intersects with the other measures. "What I can say is that we do realize some of these may conflict if/when the Courts overturn Roe v. Wade, so again, we will decide how to move forward once the final ruling is released."
A few legislators told Insider they intend to leave interpretation of the laws up to individual doctors, county prosecutors, and the state's attorney general.
Madelyn Hague, a spokesperson for Attorney General John O'Connor, declined to answer Insider's questions about which law or laws will prevail and be enforced in Oklahoma if Roe is overturned, saying the office "will not offer public speculation." But the spokesperson noted that O'Connor "has called for the Court to overturn Roe v. Wade and Planned Parenthood v. Casey," adding that "Oklahoma will be prepared should the Court do so."
"It seems like it's probably best and wisest to just kind of let it play out, let's see how it goes," said Republican Rep. Jim Olsen, a primary sponsor of SB 612, the law that Stitt signed in April that makes providing an abortion a criminal offense.
'Got so many bills'
Many Oklahoma legislators Insider contacted were unable to provide even basic information about what will happen if Roe is overturned — or what the text of their bill said.
Republican Rep. Todd Russ, the lead sponsor of SB 1503, struggled to remember whether his bill had yet been signed by the governor. (Stitt signed it two weeks before Russ spoke with Insider.) "Got so many bills," he said. "We're right in the middle of all the activities. And I can't just tell you exactly which one right off the top of my head."
When Insider called the office of Rep. Sean Roberts, a Republican cosponsor of HB 4327, his assistant inaccurately said the law had no exemptions for rape or incest. In fact, the text contains exemptions for both.
Similarly, Rep. Kevin McDugle, a Republican cosponsor of HB 4327 and SB 612, said he made sure the bills he helped pass contained exemptions for rape and incest and "if the mother is in danger of losing her life."
While HB 4327 has exemptions for rape and incest, SB 612 does not.
As McDugle tried to explain which laws could be in effect if Roe is overturned, he paused and said he was having a hard time keeping track of which law did what.
"Honestly, I'd have to go back and even look, because I don't know which ones are on the books prior," McDugle said. "We need to go back and look at all that to say, 'OK, this part of this bill is included, it's now law. But the second bill has overwritten this part of the other bill.' So it can be confusing."
McDugle had his team prepare a memo detailing the different abortion laws. The memo, which was shared with Insider, clarifies which statutes include which exemptions but fails to lay out the implications for enforcement. It also lists an incorrect date that one law will go into effect.
"We don't have detailed answers on all of it," Olsen told Insider. "We've never done this. It's been legal since 1973."
When Insider asked McDugle why Oklahoma has so many conflicting abortion bans on the books, he had a simple answer: "There's no real strategy there."
Disagreement, confusion about which laws will take effect
Though the Oklahoma legislators who spoke with Insider helped write and pass these bills, they disagreed about what will happen if Roe is struck down in June. Some said they're waiting for the final ruling from the Supreme Court to determine how to act.
Republican Sen. Nathan Dahm, the primary sponsor of SB 612 and a cosponsor of HB 4327, said that whichever statute was signed into law most recently would take precedence and supersede similar bills, a view shared by McDugle. Muqaddam, the reproductive-rights legal expert, likewise said her understanding is that most restrictive law that takes effect last would take precedence.
"But it is extraordinarily bizarre and we really don't know how it's all going to shake out," she said.
Dahm, who is currently running for US Senate, speculated that local district attorneys could even try to prosecute using the abortion ban passed before Roe v. Wade — without waiting for the Supreme Court to act.
SB 612, the law Stitt signed in April that criminalizes all abortions except in medical emergencies, won't take effect until August. When Insider asked what would happen between June, when the court may strike down Roe, and August, Dahm said that the most recent trigger law, SB 1555, may temporarily go into effect. He said his goal is for the state to eventually pass two new bills — one civil, one criminal — and remove the other "conflicting" state laws from the books.
He couldn't say which exemptions, if any, would be included in those hypothetical bills.
Republican Rep. Wendi Stearman, the lead sponsor of HB 4327 and a cosponsor of SB 612, offered a conflicting view. She told Insider that all the laws would go into effect, including a pre-Roe ban enacted in 1910, even though they clash.
Difficult for patients to know their options
Emily Wales, the president and CEO of Planned Parenthood Great Plains, said the Oklahoma legislators appeared to be throwing everything at the wall to see what sticks.
"At this point, on an operations side, we are preparing for the most restrictions, which would be a complete loss of services with likely no exceptions," she told Insider.
Dana Stone, an OB-GYN in Oklahoma City who has practiced medicine in the state for over 25 years, was taught to always give patients all their options, guiding them through the risks and benefits as they decide what's best for their health.
Now she's unsure whether she can provide even basic information about how to safely terminate a pregnancy.
"For somebody else to tell me that I cannot put my patient first is just incredibly wrong to me," she said. "It's going to be difficult to know how I can even counsel her without one of these laws applying."
As a resident in the 1980s, Stone learned from older physicians who'd practiced medicine prior to Roe v. Wade. They described how pregnant women had seriously harmed themselves after performing illegal abortions, or even died of infections.
With the onslaught of recent laws in Oklahoma, she's fearful of returning to that time.
"It's going to make it difficult for patients to know all of their options if they're having an unwanted pregnancy or a medically dangerous pregnancy or an abnormal pregnancy," Stone said. "This just is very intimidating to look at all these new laws and not quite be sure how to navigate taking care of patients now."
No clarity on exemptions for rape, incest, medical emergencies
Insider pressed legislators on whether physicians would be able to legally provide abortions for victims of rape and incest, since these exemptions are included in only one of the statutes, HB 4327, the recent civil law. "Constituents reach out and want to make sure there are exemptions," McDugle said. "The reason that the exemptions are in there is because that's the only way that bill would pass."
All the others — SB 612, the criminal ban; SB 1503, the six-week ban with civil penalties; the trigger laws SB 918 and SB 1555 and the 1910 ban they reactivate — contain exemptions only for medical emergencies or to save the pregnant person's life.
Dahm said that under HB 4327, a doctor who performed an abortion on a victim of rape or incest could avoid a civil suit but not a criminal prosecution. "They could still potentially be criminally liable" for the same abortion, he said, if a district attorney pursued charges under SB 612.
When questioned about why the exemptions aren't consistent across bills, he said, "It's multiple different versions at different stages to try to protect even more lives of the unborn."
Dahm said he personally doesn't support an exemption for rape or incest. And Stitt told Fox News that while he has daughters and couldn't imagine them facing "that hardship" of a pregnancy that resulted from rape, "we don't think that killing one to protect another is the right thing to do."
Even Stearman, who sponsored HB 4327, which ultimately included exceptions for rape and incest, took a hardline stance during floor debate. A child of rape or incest, she said, "would have a chance at life."
As for the medical-emergency exemption, Dahm said that since the Supreme Court draft decision leaked in early May, his colleagues have discussed what they should do during their next legislative session to create clarity, such as how to define a medical emergency and whether that decision should be left to a single doctor or require sign-off from two or more physicians.
The next legislative session doesn't convene until 2023.
Olsen said that if down the road doctors are found to be abusing the exemption, lawmakers would need to consider additional legislation.
"We just have to see how those situations arise," he said. "We don't want to overregulate, but we do want to do what's necessary to do all that we can to preserve the life of the baby."
When Insider asked McDugle, whose team prepared the memo, whether a pregnant person's being suicidal qualifies as a medical emergency under the laws, he said that would be up to the courts.
"My personal opinion would be that no, that would not qualify as a medical emergency," he said. "By simply stating it, that's not medical, that's mental."
Physicians fear confusion, delays
The uncertainty surrounding the exemptions could make it difficult for providers to quickly care for their patients, said Elizabeth Nash, the interim associate director of state issues at the Guttmacher Institute, the reproductive-health think tank. A patient facing a health crisis might have to wait for care until the doctor could consult with a hospital's general counsel.
Stone is already grappling with those questions. She said she's contacted the attorneys at her hospital system to seek guidance on the kinds of communication she can have with her patients without being accused of breaking the law.
"If I decide that she needs an intervention that can terminate a pregnancy to save her life, will the anesthesiologist be OK with getting on board? Will the nurses be OK assisting with it? There's a whole lot of people who have to work to keep the patient safe during her hospitalization who might be afraid to take care of her," she told Insider. "We're going to have to lean very hard on attorneys to help us try and interpret these laws. I have not seen any of the legislators or the governor willing to give specific advice on how we're supposed to navigate this."
After more than two decades of practicing medicine, Stone is getting ready to partially retire from her practice. But she worries that people may be dissuaded from entering the field she loves. She said the idea of facing jail time, significant fines, and legal fees simply for treating patients is daunting.
"We have one of the highest rates of maternal mortality. We have some of the highest child-poverty rates," she said. "I don't know why we're passing laws like this that require women to take on all of these physical and financial and social risks with no safety net. I just can't imagine why we're doing this."
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