Case: Nova Health Systems v. Cline

On October 2, 2015, NOVA Health Systems (NOVA, a reproductive services health care clinic that provides abortions), represented by the Center for Reproductive Rights, filed a lawsuit in the District Court of Oklahoma County (Oklahoma state trial court). The lawsuit challenged recently enacted state laws H.B. 1721 and H.B. 1409, which banned the most common method of second-trimester abortion, “dilation and evacuation,” and increased the state’s mandatory waiting period from 24 to 72 hours, respectively. NOVA argued that the laws were unconstitutional because they were “special laws” under Article V, Section 59 of the Oklahoma Constitution, and because they violated due process rights. The lawsuit named as defendants the Attorney General of Oklahoma, the District Attorney for Tulsa County, the Oklahoma State Board of Medical Licensure and Supervision, and the Oklahoma Commissioner of Health. Plaintiffs sought (1) declaratory judgment that H.B. 1721 and H.B. 1409 violated the Oklahoma Constitution and were void and of no effect, (2) permanent injunctive relief restricting the state from enforcing H.B. 1721 and H.B. 1409, and (3) attorney’s fees and costs. This case was assigned to Judge Patricia G. Parrish.

On October 2, 2015, NOVA filed a motion for a temporary injunction of both laws, which was granted by the court on October 28, 2015, as to H.B. 1721. This enjoined enforcement of the ban on “dilation and evacuation” procedures as litigation continued. The court concluded that it was bound by federal precedent in Gonzales v. Carhart and Stenberg v. Carhart, cases that held that complete bans on the dilation and evacuation procedure were unconstitutional. However, the court denied a temporary injunction of H.B. 1409, claiming that the plaintiff had not demonstrated that it would likely succeed on the merits of its special law claim. The Oklahoma Constitution prohibits special laws when a more general law can be made uniformly applicable. Special laws single out less than an entire class of similarly affected persons or things for different treatment. Because no other medical procedure required an informed consent period, the court concluded that the increase in the waiting period was not a special law. Plus, the court concluded that there was no federal precedent mandating a different outcome, since the Supreme Court had previously upheld mandatory waiting periods in cases such as Planned Parenthood v. Casey. H.B. 1409 took effect on November 1, 2015.

The court heard argument on the parties’ cross-motions for summary judgment on October 5, 2018. It stayed its ruling on the constitutionality of H.B. 1721, the ban on “dilation and evacuation,” pending the Oklahoma Supreme Court’s resolution of Oklahoma Coalition for Reproductive Justice v. Cline, which addressed the constitutionality of the state’s recent ban on off-label use of medications for abortion (H.B. 2684). On December 11, 2018, the court granted defendants’ motion for summary judgment as to H.B. 1409, which increased the state’s mandatory waiting period from 24 to 72 hours, reasoning that it furthered a valid state interest in protecting the patient and did not unduly burden a pregnant individual’s right to choose; therefore, it did not run afoul of the Oklahoma Constitution. On October 5, 2018, the Tulsa Women’s Reproductive Clinic replaced NOVA as the plaintiff in this action.

After the Oklahoma Supreme Court ruled in Cline on April 30, 2019 that H.B. 2694 unconstitutionally restricted off-label use of medications for abortion, this action resumed, newly reassigned to Judge Cindy H. Truong. On September 19, 2019, Judge Truong granted defendants' motion for summary judgment as to H.B. 1721, concluding that it did not unduly burden a pregnant individual’s right to choose. The court dissolved the temporary injunction that had enjoined enforcement pending resolution of the litigation.  

Plaintiffs then appealed to the Oklahoma Supreme Court, which granted a temporary injunction as to H.B. 1721 pending appeal, to preserve the status quo, on November 4, 2019. As of January 20, 2023, the case remains pending before the Oklahoma Supreme Court. It has been fully briefed.