Initiative Petition No. 349, State Question No. 642, In re

• Decision Date: 04 August 1992
• Docket Number: No. 76437,76437
• Citation: 1992 OK 122,838 P.2d 1
• Parties: , 1992 OK 122 In re INITIATIVE PETITION NO. 349, STATE QUESTION NO. 642.
• Court: Oklahoma Supreme Court

Page 1

838 P.2d 1

61 USLW 2102, 1992 OK 122

In re INITIATIVE PETITION NO. 349, STATE QUESTION NO. 642.

No. 76437.

Supreme Court of Oklahoma.

Aug. 4, 1992.

As Corrected Aug. 5 and 18, 1992.

Original Proceeding to Determine the Validity of Initiative Petition No. 349, State Question No. 642; and Appeal of the Ballot Title.

Although this proceeding, filed in reference to Initiative Petition No. 349 (petition/abortion petition), initially presented multiple issues, the United States Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833, ----, 112 S.Ct. 2791, 2815, 120 L.Ed.2d 674 (1992) has rendered a single issue dispositive--whether Initiative Petition No. 349 is constitutional. We find: 1) that the issue of the constitutionality of the initiative petition is governed by the United States Supreme Court's pronouncement in Casey; and that we are bound to follow the mandate of the United States Supreme Court on matters of federal constitutional law; and 2) that when the unconstitutionality of the initiative petition is manifest, a pre-election judicial determination of the issue is both appropriate and necessary to avoid a costly and useless election.

The Casey court held that: 1) a woman's right to obtain an abortion is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment; 2) viability marks the earliest point at which the State's interest is constitutionally adequate to justify a legislative ban on nontherapeutic abortions; and 3) before viability, a woman may choose to have an abortion without undue interference by the State. Because Oklahoma women who do not fall within four narrowly defined categories would be absolutely prohibited from exercising the pre-viability liberty interest expressly recognized by Casey, we are required to find the initiative petition unconstitutional. We also find that an examination of the constitutionality of the initiative petition is necessary, both to avoid misleading citizens about the legal effect of the proposition upon which they may vote, and to avoid a costly election which would ultimately be an exercise in futility. [Nevertheless, this ruling does not prohibit the circulation of a proper initiative petition or of legislation which passes constitutional muster.]

INITIATIVE PETITION INVALID; ORDERED STRICKEN FROM THE BALLOT.

Kevin M. Abel, William A. Caldwell, Michael W. Pierce, Tulsa, for proponents, Okl. Coalition to Restrict Abortion, Inc. and Fred W. Sellers, Jr.

Robert H. Henry, Atty. Gen., Susan Loving, ¹ Atty. Gen., Neal Leader, Rachel Lawrence-Mor, Asst. Attys. Gen., Oklahoma City, for State.

Thomas Dee Frasier, Laura Emily Frossard, Gary Dean Allison, Tulsa, for protestants, Nancy Feldman & Kim Little.

Richard A. Mildren, Gary L. Watts, Oklahoma City, Rebecca J. Patten, Norman, Kathryn Kolbert, Simon Heller, Andrew Dwyer, New York City, for protestants, Janet Taliaferro, Andrew Tevington, & Pam Fleischaker.

Roger K. Evans, Carole Chervin, New York City, for amici curiae, U.S. Senator David Boren, U.S. Representatives Dave McCurdy and Mike Synar, The Former Speaker of the U.S. House of Representatives Carl Albert, Bruce Ackerman, Paul Brest, Guido Calabresi, Walter Dellinger, Geoffrey Stone, & Lawrence Tribe.

KAUGER, Justice.

Although this proceeding, filed in reference to Initiative Petition No. 349 (petition/abortion petition), initially presented multiple issues, the United States Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833, ----, 112 S.Ct. 2791, 2815, 120 L.Ed.2d 674 (1992) has rendered a single issue dispositive--whether Initiative Petition No. 349 is constitutional. We find: 1) that the issue of the constitutionality of the initiative petition is governed by the United States Supreme Court's pronouncement in Casey; and that we are bound to follow the mandate of the United States Supreme Court on matters of federal constitutional law; and 2) that when the unconstitutionality of the initiative petition is manifest, a pre-election judicial determination of the issue is both appropriate and necessary to avoid a costly and useless election.

The Casey court held that: 1) a woman's right to obtain an abortion is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment; ² 2) viability marks the earliest point at which the State's interest is constitutionally adequate to justify a legislative ban on nontherapeutic abortions; and 3) before viability, a woman may choose to have an abortion without undue interference by the State. Because Oklahoma women who do not fall within four narrowly defined categories would be absolutely prohibited from exercising the pre-viability liberty interest expressly recognized by Casey, we are required to find the initiative petition unconstitutional. We also find that an examination of the constitutionality of the initiative petition is necessary, both to avoid misleading citizens about the legal effect of the proposition upon which they may vote, and to avoid a costly election which would ultimately be an exercise in futility. [Nevertheless, this ruling does not prohibit the circulation of a proper initiative petition or of legislation which passes constitutional muster.]

RELEVANT PROCEDURAL HISTORY

The proponents, Oklahoma Coalition to Restrict Abortion, Inc., and Fred W. Sellers, Jr. (collectively, proponents/Sellers) filed petition pamphlets with the Secretary of State on June 29, 1990. On December 31, 1990, the protestants, Nancy Feldman and Kim Little (collectively, Feldman) filed a protest to the legal sufficiency of the petition. On January 8, 1991, the Secretary of State filed the proposed ballot title prepared by the Attorney General. The proponents filed a timely appeal to the ballot title on January 17, 1991. Although Feldman also appealed the ballot title, the challenge was dismissed by order of this Court on April 13, 1992, as being untimely. However, a valid ballot title challenge is before us--the one filed by the proponents. The initial briefing period concerning the legal sufficiency of Initiative Petition No. 349 was commenced when this Court ordered a briefing schedule on March 3, 1992. The final filings of the parties were submitted to the Court on June 4, 1992.

The issue of the constitutionality of the initiative petition was fairly raised within certain of the other issues raised by Feldman in the challenge to the legal sufficiency of the petition. ³ On July 14, 1992, in the interest of fairness, we ordered the parties and the Attorney General to submit simultaneous briefs addressing Casey and its impact on the constitutionality of the proposed ballot title and the substance of Initiative Petition No. 349. ⁴ Those briefs were filed on July 24, 1992.

In response to this Court's order of July 14, 1992, the proponents, Sellers, and the protestants, Nancy Feldman, Kim Little, Janet M. Taliaferro, Andrew Tevington, and Pam Fleischaker (collectively, protestants) and the Attorney General filed briefs specifically addressing the constitutionality of the initiative petition in relation to the United States Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833, ----, 112 S.Ct. 2791, 2815, 120 L.Ed.2d 674 (1992). We also granted the amici's motion to brief the issue. The protestants, the amici curiae, and the Attorney General assert that Initiative Petition No. 349 is unconstitutional under the United States Supreme Court's ruling in Casey. As we read the proponents submission, they concede that the initiative petition was unconstitutional when it was drafted, that it was unconstitutional when it was circulated, and that it is unconstitutional now. However, the proponents insist that we should allow the petition to go forward as an exercise in political advocacy. We find that the initiative petition is unconstitutional based on controlling federal precedent enunciated by the United States Supreme Court as recently as June 29, 1992.

I. THE CONSTITUTIONALITY OF THE INITIATIVE PETITION IS GOVERNED

BY THE UNITED STATES SUPREME COURT'S PRONOUNCEMENT IN PLANNED PARENTHOOD v. CASEY.

BECAUSE WOMEN WHO DO NOT FALL WITHIN FOUR NARROWLY DEFINED

CATEGORIES MAY NOT EXERCISE THE PRE-VIABILITY LIBERTY

INTEREST RECOGNIZED BY CASEY,

WE ARE REQUIRED TO FIND THE INITIATIVE PETITION UNCONSTITUTIONAL.

When the initiative petition was filed, it appeared that a major re-examination of the law in relation to a woman's right to obtain a nontherapeutic abortion was in progress. Legal commentators anticipated either the overruling or the substantial undercutting of the principles of Roe v. Wade, 410 U.S. 113, 163-64, 93 S.Ct. 705, 731-32, 35 L.Ed.2d 147, 182-83 (1973). ⁵ In Webster v. Reproductive Health Serv., 492 U.S. 490, 518, 109 S.Ct. 3040, 3052, 106 L.Ed.2d 410, 435-36 (1989), the United States Supreme Court rejected the strict trimester approach of Roe v. Wade. The Webster Court also found that a State's interest in protecting human life did not come into play only at viability as previously expressed in Roe. ⁶ Additional evidence of the uncertainty surrounding Roe's continuance as a rule of law can be seen by the vote in Webster. Five Justices--Chief Justice Rehnquist, Justices White and Scalia, who have consistently voted to overrule Roe, as well as Justices O'Conner and Kennedy--joined in part IID of the majority opinion criticizing Roe. ⁷

After June 29, 1992, when the United States Supreme Court promulgated its opinion in Planned Parenthood v. Casey, 505 U.S. 833, ----, 112 S.Ct. 2791, 2815, 120 L.Ed.2d 674 (1992), co-authored by Justices O'Conner, Kennedy, and Souter, ⁸ which reiterates, and perhaps strengthens, the central premise of Roe--that women, may for some time period, make independent decisions to obtain nontherapeutic abortions--the submission could not go forward. Casey reaffirmed the central premise of Roe v. Wade, 410 U.S. 113, 153-54, 93 S.Ct. 705, 727, 35 L.Ed.2d 147, 177 (1973), ...