Current Abortion Debate Shows Need for JNC Repeal

Recent events at the Supreme Court of the United States have demonstrated the importance of judicial selection — both at the federal and state levels. Last week, a draft opinion for the United States Supreme Court, written by Associate Justice Samuel Alito in the case of Dobbs v. Jackson Women’s Health Organization,was leaked to the press. In the draft opinion, Justice Alito wrote what pro-lifers have spent decades waiting to read: “We hold that Roe and Casey must be overruled.”

Should the draft become the opinion of the Court, it will be a massive win for the conservative legal movement. Spearheaded by the Federalist Society, the conservative legal movement has worked for decades to put judges on the federal bench who believe “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”Roe is seen by some as the ultimate test of whether that strategy has worked — not because of the politics of abortion, but because it was an egregious example of the Court making up the law as it went.

Oklahomans celebrating the potential overturning of Roe and Casey should pay particular attention to judicial reform – not in Washington, but in Oklahoma City. After all, while the careful appointment of judges and justices at the federal level may bring the end of Roe, carelessness in selecting Oklahoma’s jurists can undo all that work. Thus, robust reform to Oklahoma’s judicial selection process is necessary.

Senate Joint Resolution 43 is a bill that, if passed, would have Oklahomans vote on a ballot measure to restructure the way Oklahoma places judges and justices on its appellate courts. Currently, the process begins with the Judicial Nominating Commission (JNC), which submits three names to the governor that he must choose between. S.J.R. 43 would allow Oklahomans to move to something more akin to the federal model where the governor appoints judges and justices with legislative confirmation.

One question pro-life Oklahomans should be asking is whether our state Supreme Court — effectively picked by unelected bureaucrats — would find a right to an abortion in the state constitution. That is “very possible,” according to the executive director of ACLU Oklahoma. Tamya Cox-Touré was recently quoted as saying that “It’s very possible that our Oklahoma State Supreme Court could find that there is a right to an abortion in our State Constitution.” And according to the Court, itself, her assertion may not be far off the mark.

In the 2021 legislative session, the Oklahoma Legislature passed five abortion bills that were challenged in the courts. A pro-abortion group called Oklahoma Call for Reproductive Justice (OCRJ) brought the challenge, making claims only under the Oklahoma Constitution. Unlike Kansas, whose state Supreme Court found a right to abortion under the Kansas Constitution, the Oklahoma Supreme Court has never found such a right. Despite that, the Oklahoma Supreme Court blocked the pro-life laws from taking effect pending appeal.

In dissent, Justice Dustin Rowe noted OCRJ “never asserted federal constitutional claims before the trial court, but rather chose to assert claims under the Oklahoma Constitution exclusively. We have never recognized a right to abortion under the provisions of the Oklahoma Constitution.”
In light of the impending Dobbs decision — and the feeling that it might lead to the end of Roe and Casey — it’s likely that OCRJ brought its claims under the Oklahoma Constitution on purpose. If the Oklahoma Supreme Court finds the right to an abortion enshrined in the Oklahoma Constitution, it could eliminate some or all of the effects of the Dobbs ruling.

So the ACLU is not crazy to think the Oklahoma Supreme Court could invent in the Oklahoma Constitution a right to abortion. Oklahomans ready to celebrate the end of Roe and Casey should first pick up the phone. Their legislators need to hear that they support S.J.R. 43. And should the legislature send it to voters, they’ll need to line up at the ballot box to ensure it passes.

This analysis first appeared here: . It is reposted here, with permission. Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.