April 24, 2013
On December 4, 2012, in Nova Health Systems v. Pruitt, 2012 OK 103 (Okla. 2012), the Oklahoma Supreme Court summarily struck down—on federal constitutional grounds—an Oklahoma informed consent law that required abortion doctors to perform an ultrasound and make certain disclosures regarding fetal development before proceeding with an abortion.1
In its short, unanimous memorandum opinion, the Oklahoma Supreme Court affirmed the trial court’s judgment per curium,2 but it did not adopt the trial court’s reasons for overturning the informed consent law (HB 2780, codified at Okla. Stat. tit. 63, §§ 1-738.1A et seq.). Rather than declare HB 2780 violative of the Oklahoma Constitution, as the trial court had done, the Oklahoma Supreme Court charted a different path and invalidated the law solely on federal constitutional grounds under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In doing so, the Oklahoma Supreme Court created an apparent split with the U.S. Court of Appeals for the Fifth Circuit and broke from a growing trend in state and federal courts toward invalidating informed consent laws on First Amendment or state constitutional grounds rather than under Casey.3 This article summarizes HB 2780’s provisions and legislative history, analyzes the Oklahoma Supreme Court’s opinion and places it within the broader context of other recent informed consent cases, and concludes with an assessment of Pruitt’s significance in the national landscape of abortion litigation.
HB 2780 stated that it aimed to give women who seek abortions the benefit of an “informed decision.”4 Toward this goal of informed consent, HB 2780 required abortion doctors to perform an ultrasound at least one hour before proceeding with an abortion, display the ultrasound images to the pregnant woman,5 and also provide a simultaneous medical description of the ultrasound images.6 This medical description had to include the dimensions of the fetus, the presence of cardiac activity, and the presence of internal organs, if viewable.7 The physician then was required to obtain from the woman her written certification that the physician complied with HB 2780.8 If a woman faced a medical emergency in which her life or physical health were in danger because of the pregnancy, the physician could perform the abortion without adhering to HB 2780.9 The law further specified that nothing in HB 2780’s provisions may be construed to prevent the woman from averting her eyes from the ultrasound images.10
The Oklahoma House of Representatives passed HB 2780 on March 2, 2010.11 After garnering the necessary votes in the Senate about a month later,12 the bill reached the desk of Governor Brad Henry, who vetoed the bill.13 On April 27, 2010, the House and Senate overrode the Governor’s veto, exceeding the three-fourths vote in each house required by the Oklahoma Constitution.14
That same day, Nova Health Systems, a non-profit corporation that operates an abortion clinic in Tulsa, Oklahoma, brought suit in an Oklahoma trial court challenging HB 2780 under the Oklahoma Constitution.15 The trial court granted summary judgment to Nova Health Systems and issued a permanent injunction restraining the state from enforcing the law.16 Reasoning that the law qualified as a special law under the Oklahoma Constitution, the trial court invalidated HB 2780 because “it is improperly addressed only to patients, physicians, and sonographers concerning abortions and does not address all patients, physicians, and sonographers concerning other medical care where a general law could clearly be made applicable.”17
The Oklahoma Supreme Court decided to retain the appeal directly from the trial court rather than wait for an intermediate appellate court to decide the case.18 Rule 1.24 of the Oklahoma Supreme Court Rules dictates that the Oklahoma Supreme Court will retain a case upon consideration of three factors: (1) whether a case involves an area of law undecided in Oklahoma; (2) whether a split exists between the lower state appellate courts on the matter; and (3) whether the issue raised on appeal “concern[s] matters which will affect public policy” that, when decided by the Oklahoma Supreme Court, are “likely to have widespread impact.”19 Because no lower appellate courts had yet decided a challenge to HB 2780 and there had been no other abortion ultrasound laws before HB 2780, the Oklahoma Supreme Court must have retained the appeal either because HB 2780 involved an area of law undecided in Oklahoma, or because the issue concerned a matter that would affect public policy and have widespread impact.
II. Pruitt’s Analysis
The Oklahoma Supreme Court affirmed the judgment of the trial court per curiam, but overturned HB 2780 under the United States Constitution, not the Oklahoma Constitution.20 The court cited as the sole basis for its decision Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), a United States Supreme Court decision that invalidated a state spousal notification requirement but upheld a 24-hour waiting period and informed consent and parental consent requirements under a newly announced “undue burden” standard that represented a partial retreat from Roe v. Wade, 410 U.S. 113 (1973).21 The entire relevant portion of the Oklahoma Supreme Court’s analysis in Pruitt was as follows:
Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in [Casey], which was applied in this Court’s recent decision of In re Initiative No. 395, State Question No. 761.
Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. . . . The challenged measure is facially unconstitutional pursuant to Casey. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.22
In In re Initiative No. 395, the Oklahoma Supreme Court invalidated a proposed constitutional amendment that would have granted personhood status and constitutional rights to fetuses at the earliest beginnings of their biological development in the womb—essentially a blanket abortion ban.23 To explain why it was overturning the proposed amendment, the court simply said, “Initiative Petition No. 395 conflicts with Casey and is void on its face and is hereby ordered stricken,”24 adding a brief citation to another case, In re Initiative Petition No. 349, State Question No. 642.25 In re Initiative No. 349 overturned, under Casey, a proposed constitutional amendment that would have banned all abortions except those that fell within one of four narrow exceptions.26
On the same day it released Pruitt, the Oklahoma Supreme Court released another memorandum opinion in which it overturned a law that would have prohibited the off-label use of chemotherapeutic and diagnostic drugs that are known to cause abortions.27 The opinion in Oklahoma Coalition for Reproductive Justice v. Cline is word-for-word, entirely identical to Pruitt, except when the court cites the name of the law, HB 1970.28 Thus, the court likewise did not provide specifics as to why HB 1970 is facially unconstitutional under Casey, aside from the observation that near total abortion bans fail Casey’s “undue burden” test.
Pruitt marks the third abortion law case that the Oklahoma Supreme Court decided in 2012, and its treatment of the issue is similar to the court’s treatment in Cline and In re Initiative No. 395.
III. Comparing Pruitt to Other High-Profile Ultrasound Law Challenges
In Texas Medical Providers Performing Abortion Services v. Lakey, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously upheld, under Casey, a Texas ultrasound law that was in some respects more intrusive than HB 2780. 29 The Texas law that Lakey reviewed is similar to HB 2780 in that it requires physicians to perform and display a sonogram of the fetus and exempts those women facing medical emergencies, but the Texas law goes further than HB 2780 by requiring physicians to make the heart auscultation of the fetus audible to women, and then wait at least 24 hours before proceeding with an abortion.30 Under the Texas law, women may decline to view the images or hear the heartbeat, but they may only decline to hear the explanation of the ultrasound images if their pregnancy meets one of three narrow exceptions.31 As with HB 2780, under the Texas ultrasound law, pregnant women seeking an abortion have to certify their doctor’s compliance with the requisite procedures.
In upholding the Texas ultrasound law, the Fifth Circuit rejected the district court’s holding that the law violated physicians’ and women’s First Amendment right against compelled speech. In reaching its decision, the Fifth Circuit expressly relied on Casey’s holding that an informed-consent statute does not abrogate the First Amendment right against compelled speech when it requires the giving of “truthful, non-misleading information” that is “relevant” to the woman’s decision regarding the abortion.32 The Fifth Circuit found that the images and audio produced by an ultrasound are the “epitome of truthful, non-misleading information,” and are not different in kind, though admittedly “more graphic and scientifically up-to-date,” than the disclosure requirements upheld by the Supreme Court in Casey.33
It is also worth mentioning that the Fourth Circuit may weigh in on the matter shortly, as a federal district court in North Carolina issued a temporary injunction against North Carolina’s ultrasound law on December 19, 2011, using reasoning similar to that employed by the Texas federal district court and rejected by the Fifth Circuit in Lakey.34 In Stuart v. Huff, the North Carolina federal district court chose to avoid Casey entirely, issuing its injunction solely on First Amendment compelled speech grounds.35 The district court’s issuance of the temporary injunction has already been appealed to the Fourth Circuit.
IV. Pruitt’s Importance
Because the Oklahoma Supreme Court chose to strike down HB 2780 under the Federal rather than the Oklahoma Constitution, its ruling in Pruitt creates an apparent split with the Fifth Circuit and could plausibly be reviewed by the United States Supreme Court. Oklahoma Attorney General Scott Pruitt has filed a petition for certiorari.36
*Christine Pratt graduated from the University of Florida Levin College of Law in 2011 and practices law in Florida. While in law school, she was secretary of her law school’s chapter of the Federalist Society.
1 Nova Health Systems v. Pruitt, 2012 OK 103, 292 P.3d 28 (Okla. 2012) (per curium).
3 Attorney General Pruitt announced on March 25, 2013 that his office had filed a petition for writ of certiorari in the case. Randy Krehbiel, Pruitt asks U.S. Supreme Court to overturn state court’s abortion ruling, Tulsa World, Mar. 26, 2013, http://www.tulsaworld.com/site/printerfriendlystory.aspx?articleid=20130326_16_A12_OKLAHO146921 (last visited April 23, 2013)
4 House Bill 2780 (2)(B), 2010 Okla Sess. Laws ch. 36. (codified at Okla. Stat. tit. 63, §§ 1-738.1A, 1-738.3e).
5 Id. (2)(B)(3).
6 Id. (2)(B)(2).
7 Id. (2)(B)(4).
8 Id. (2)(B)(5).
9 Id. (2)(D).
10 Id. (2)(C).
11 Message from the Okla. H. Reps., Enrolled House Bill No. 2780, April 27, 2010, available at https://www.sos.ok.gov/documents/legislation/52nd/2010/2R/HB/2780.pdf (last visited Feb. 6, 2013).
13 Veto Message from Governor Brad Henry for HB 2780, Okla. H. Journal, April 26, 2010, available at http://www.okhouse.gov/Journals/HJ2010/2010 Hleg Day49.pdf.
14 Message from the Okla. H.R., April 27, 2010, available at https://www.sos.ok.gov/documents/legislation/52nd/2010/2R/HB/2780.pdf (last visited Feb. 6, 2013).
15 Plaintiffs’ Motion for a Temporary Injunction and Temporary Restraining Order, Nova Health Sys. v. Edmondson, Case No. CV-2010-533 (Okla. Dist. Ct. April 27, 2010), available at http://msnbcmedia.msn.com/i/MSNBC/Sections/TVNews/MSNBC TV/Maddow/Blog/2010/04/Motion.pdf (last visited Feb. 6, 2013).
16 Order Granting Summary Judgment Declaring Ultrasound Act as an Unconstitutional Special Law and Permanent Injunction Preventing the Enforcement of the Ultrasound Act, Nova Health Sys. v. Pruitt, Case No. CV-2010-533 (Okla. Dist. Ct. Mar. 28, 2012), available at http://ocrj.org/sites/default/files/
 Order Granting Summary Judgment 3-28-12.pdf (last visited Feb. 6, 2013).
17 Id. at 1.
18 Nova Health Systems v. Pruitt, 2012 OK 103, 292 P.3d 28 (Okla. 2012) (per curium).
19 Oklahoma Supreme Court Rules, Rule 1.24(c).
20 Nova Health Systems v. Pruitt, 2012 OK 103, 292 P.3d 28 (Okla. 2012) (per curium).
23 In re Initiative Petition, No. 395, State Question No. 761, 2012 Okla. 42, 286 P.3d 637 (Okla. 2012).
27 Okla. Coal. for Reproductive Justice v. Cline, 2012 OK 102, 292 P.3d 27 (Okla. 2012).
29 Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012).
30 Id. at 573.
31 Id. The Texas law provides that a woman may decline to hear a verbal explanation of the ultrasound if: (1) her pregnancy is the result of a rape, incest, or other sexual crime that she reported, or failed to report due to a reasonable belief that reporting the crime would put her at risk of serious bodily harm; (2) she is a minor and is obtaining her abortion through judicial bypass procedures; or (3) the fetus has a reliably diagnosed and documented irreversible medical condition or abnormality. Tex. Health Code Ann. § 171.0122(d) (West 2011). In contrast, HB 2780 allows women to decline to hear an explanation of the ultrasound images only when their health or lives are in danger.
32 Id. at 574–80.
33 Id. at 577–78.
34 Stuart v. Huff, 834 F. Supp. 2d 424 (M.D.N.C. 2011).
36 Randy Krehbiel, Pruitt asks U.S. Supreme Court to overturn state court’s abortion ruling, Tulsa World, Mar. 26, 2013, http://www.tulsaworld.com/site/printerfriendlystory.aspx?articleid=20130326_16_A12_OKLAHO146921 (last visited April 23, 2013)