OKLAHOMA CITY – Oklahoma’s outgoing attorney general, John O’Connor, sent a memo to law enforcement officials across the state last week, calling on them to prosecute “anyone involved” in providing abortion services.
O’Connor’s lone exception was abortion for medical emergencies.
The AG’s memo, dated Aug. 31, said state law didn’t allow for the punishment of those who received abortion services but, instead, was focused on those who provide ‘elective abortions.’
“First, Oklahoma district attorneys and law enforcement agencies should pursue criminal persecution of any person who intentionally performs, attempts to perform or assist with the performance of an elective or on-demand abortion, surgical or chemical,” O’Connor wrote.
O’Connor’s memo said there were also ‘clear instances’ where prosecutions should not be initiated. “Oklahoma laws prohibiting abortion do not allow for the prosecution or punishment or any mother for seeking an abortion,” he wrote. “Nor do Oklahoma abortion prohibitions apply to unintentional miscarriages and miscarriage management (such as the removal of a dead child), ectopic pregnancies and treatments, in vitro fertilization and other fertility treatments or uses of prescription of contraception, including Plan B.”
Abortion is only authorized under Oklahoma criminal law when it was necessary to save the life of the mother in an emergency, he said. O’Connor said the exception should be interpreted “to ensure that it’s not used by bad faith actors or clinics as a cover for abortion-on-demand.”
Oklahoma’s law and the attorney general’s guidance could see court challenges. In late May, Tamya Cox-Touré, the executive director of the ACLU of Oklahoma, said her organization would fight the state’s ban.
“No one should be forced to carry a pregnancy against their will and face the life-altering consequences of being denied this essential health care,” Cox-Touré told The Black Wall Street Times.
She said when safe abortion is restricted, maternal mortality rates, pregnancy-related complications and infant mortality all increase.
A 2018 study published by the Oklahoma State Medical Association underscore Cox’s concern about the state’s infant mortality rate. “Oklahoma’s infant mortality remains among the highest in the nation and infant mortality rates are highest within the African American community,” the study noted.
While O’Connor’s memo also urges law enforcement officials to be careful and use care discretion in deciding whether or not to prosecute, the AG attempts to thread a difficult needle between state law and the First Amendment to the U.S. Constitution.
“In enforcing this, district attorneys and law enforcement should take great care to avoid infringing on constitutional speech rights,” O’Connor’s memo said. “The Oklahoma Supreme Court has held that speech that encourages “imminent lawless action” is not constitutionally protected, whereas ‘mere advocacy’ is protected.”
“District attorneys and law enforcement should entirely refrain from investigating or prosecuting persons engaging in general advocacy in favor of abortion,” he wrote.
The debate over abortion and access to abortion continues to divide Oklahomans. A poll by Amber Integrated taken in December of 2021 showed that 31% of those surveyed would support a total ban on abortion if the U.S. Supreme Court overturned Roe v. Wade, while 55% of the Oklahoma voters surveyed did not want a total ban. Another 14% were unsure.
O’Connor’s guidance could be short-lived. The incumbent lost his primary race to Republican challenger Gentner Drummond in June. Drummond will face Libertarian Lynda Steele in the November general election.