Case: In Re: Initiative Petition No. 395, State Question No. 761

This is an action challenging an Oklahoma ballot initiative that would have used the initiative process to ban abortion in the state. This challenge was filed by the ACLU, the ACLU of Oklahoma, and the Center for Reproductive Rights on behalf of six Oklahoma voters. On March 29, 2012, the challengers filed a protest to Initiative Petition No. 395 in the Oklahoma Supreme Court. The challengers were entitled to bring their challenge directly to the Oklahoma Supreme Court under Oklahoma law. Okla. Stat. tit. 34, §8 (2011). 

Initiative Petition No. 395 (IP 395) was filed on March 1, 2012, and proposed the ratification of the “Oklahoma Personhood Amendment” which would ban abortion and most forms of contraception, while also prohibiting medical interventions like in vitro fertilization. In their filing, the challengers argued that the Supreme Court of Oklahoma had rejected a similar ballot initiative in 1992, holding that the initiative process could not be used to disrupt constitutionally protected rights. The challengers argued that the amendment proposed by IP 395 violated the decisions of the Oklahoma Supreme Court as well as provisions of the U.S. Constitution. 

The challengers also alleged that IP 395 was insufficient under Oklahoma law that controlled ballot initiatives. The plaintiffs claimed that IP 395 addressed more than one subject, in violation of Art. 24 §1 of the Oklahoma Constitution, and that the “Statement of the Gist” required by law was too misleading and inaccurate to satisfy the requirements of 34 Okla. Stat. §3. The plaintiffs alleged that the Statement of the Gist was insufficient to put signers on notice of the effect of IP 395. 

(The proposed language of the initiative was initially found insufficient by the Oklahoma Attorney General. On March 8, 2012, the Attorney General found that the ballot’s title did not adequately explain the effects of the petition and was not impartial. The Attorney General rewrote the ballot title by defining terms like “person” and “beginning of biological development.” The Attorney General’s changes included a fertilized egg in the category of “persons” bearing due process and equal protection rights. The proponents of the ballot, led by the organization Personhood Oklahoma, were satisfied with the new language and the Secretary of State published notice of IP 395 on March 22, 2012.)

In addition to their state law claims, the plaintiffs argued that IP 395 violated the Fourteenth Amendment of the United States Constitution because the proposed amendment would violate the right of an individual to decide whether and when to have a child. The amendment, they argued, would give rights to a fertilized egg that would then interfere with the due process and equal protection rights of the individual carrying that egg. They also argued that IP 395 would have potentially deadly consequences for individuals seeking medical treatment for pregnancy related conditions. 

The Oklahoma Supreme Court struck down IP 395 on April 30, 2012. The court held that IP 395 was facially invalid under the U.S. Supreme Court’s decision in Planned Parenthood v. Casey. The Oklahoma Supreme Court stated that they were bound by the decision in Casey and found that IP 395 directly conflicted with that decision. On that basis, the court struck down IP 395. 286 P.3d 637.

On July 30, 2012, proponents of IP 395 filed a petition for writ of certiorari with the United States Supreme Court. In their petition, the proponents argued that IP 395 should be submitted to the citizens of Oklahoma for consideration and voting because it met the procedural requirements for a citizen-initiated amendment. They claimed that the Oklahoma court had overstepped their power by striking down a proposed law before it had been enacted. They also argued that the Oklahoma Supreme Court should not have invalidated the proposal based on a “worst-case analysis” of situations that the law could be applied to. The proponents went on to request that the Supreme Court of the United States hear the case to resolve divisions in the federal circuit courts and state courts over review of restrictions on ballot initiatives. Because different courts have used different standards for reviewing pre-election challenges to ballot initiatives, the proponents believed that the Supreme Court should accept their petition to resolve the issue. 

Finally, the proponents alleged that the Oklahoma Supreme Court’s decision violated the Tenth Amendment to the United States Constitution. The proponents framed IP 395 as an exercise of their “fundamental and lawful right to propose an amendment to their state constitution.” As such, they believed that principles of federalism allowed state citizens to respond to issues through the enactment of positive law. They viewed the Oklahoma Supreme Court’s decision as a “usurpation of the people’s authority” that should be overruled. 2012 WL 3109490. 

On October 29, 2012, the proponents' petition for writ of certiorari was denied. 568 U.S. 978. As such, the ballot initiative was not included in the 2012 election. This matter is closed.