After Dobbs, can Oklahoma prosecute a pregnant woman as a criminal for performing or inducing an abortion on herself?

Plain-English summary

Six Oklahoma legislators asked whether a pregnant woman can be prosecuted under 63 O.S. § 1-733 (or any other Oklahoma law) for performing or inducing an abortion on herself. The Attorney General said no.

Section 1-733 reads: "No woman shall perform or induce an abortion upon herself, except under the supervision of a duly licensed physician." The statute does not specify any penalty. Some have argued that 21 O.S. § 21 (the general "any prohibited act with no specified penalty is a misdemeanor" statute) fills the gap and creates a misdemeanor. The AG rejects that argument.

The reasoning chain is dense but flows from one principle: the Oklahoma Legislature has repeatedly and explicitly said that pregnant women should not be prosecuted for abortion.

1. Historical practice. Even before Roe v. Wade, when Oklahoma did have a misdemeanor statute on the books permitting prosecution of pregnant women (the now-repealed 21 O.S. § 862), the AG's office found "no readily available prosecution history." Pre-Roe Oklahoma cases (Wilson, Cahill, Reeves) repeatedly framed pregnant women as victims of abortion, not as participants in crime.

2. The 2022 repeal. Oklahoma's "trigger law" amended in 2022 (S.B. 1555) repealed § 862 immediately upon Dobbs. The AG calls this "definitive" evidence the Legislature did not want pregnant women prosecuted. If § 862 was specifically targeted for repeal, § 1-733 cannot be read to backdoor the same prosecution.

3. Recent statutes consistently exempt women. The opinion lists more than ten Oklahoma abortion statutes (partial-birth, dismemberment, pain-capable, medication, civil enforcement) each containing an explicit "no penalty against the pregnant woman" clause. The post-Dobbs criminal abortion ban (§ 1-731.4) says: "This section does not . . . authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child." Similar protective clauses exist in homicide-of-unborn statutes (§ 652(E), § 691(D)) and the wrongful death statute (§ 1053(F)).

4. Statutory canons. Specific statutes control over general (Ghoussoub). More recent statutes control over older. Statutes are read together, not in isolation. Criminal statutes are strictly construed in favor of the accused (rule of lenity, Newlun, Tran). All these canons point the same direction: § 1-733 is not a criminal trap door.

5. Stegall and Whirlpool framework for § 21. The Oklahoma Court of Criminal Appeals has held in Stegall (1953) that § 21 does not automatically convert every "shall not" provision into a misdemeanor. Context matters: where the statute is in the Public Health Code, where surrounding statutes show the Legislature knew how to criminalize when it intended, and where the legislative pattern is to protect (not prosecute) women, § 21 does not apply.

The AG also emphasizes the broader pro-life community's longstanding position that pregnant women should not be prosecuted, arguing that this is "a uniquely American case of handling a delicate and tragic situation with sensitivity." The AG cites scholarship arguing that the historic policy of not prosecuting women is "consistent with the desire to protect the life of the fetus," not contradictory.

Bottom line: Oklahoma criminal abortion statutes (§ 861, § 1-731.4) target the abortion provider. The pregnant woman is not subject to misdemeanor or felony prosecution under any current Oklahoma statute. The AG's reading is binding on prosecutors as a matter of statutory interpretation.

What this means for you

If you are an Oklahoma district attorney or law enforcement officer

Do not charge a pregnant woman with any crime for performing or inducing an abortion on herself. The AG's opinion is binding on state officials. The statutes that apply to abortion target abortion providers (§ 861, § 1-731.4), not the pregnant woman. The repealed § 862 was the only statute that ever permitted misdemeanor prosecution of a woman, and it has been repealed.

Continue to enforce abortion law against providers under § 861 and § 1-731.4 as appropriate. The Oklahoma Supreme Court has upheld § 861 (OCRJ v. Drummond, 2023) but struck down § 1-731.4 on medical-emergency grounds (OCRJ v. State, 2023). Watch for further litigation.

If you are a pregnant woman in Oklahoma

You are not subject to criminal prosecution under any current Oklahoma statute for self-inducing or seeking an abortion. The AG opinion is unequivocal on this. If you face threats of prosecution, this opinion is your defense.

This opinion does not address civil or other consequences. It also does not address whether the abortion is legal. Section 861 makes performing or aiding an abortion a felony except to save the pregnant woman's life. So while you cannot be prosecuted, the provider can be.

If you are an OB/GYN or a physician practicing in Oklahoma

Abortion remains a felony for the provider under § 861, except to save the pregnant woman's life. Section 1-731.4 was struck down on medical-emergency grounds, but § 861 remains in effect. Document the medical necessity of any procedure. Consult counsel before performing any abortion.

The opinion does not change provider liability. It only confirms that the pregnant woman is not your co-defendant.

If you are a reproductive health attorney

The opinion is comprehensive and well-sourced. Use it for client counseling and in defending against any prosecution that targets a pregnant woman directly. The opinion's history of § 862's repeal and the statutory pattern of "no penalty against the pregnant woman" clauses is your stack of authorities.

If you are an Oklahoma legislator

The opinion settles current law: no prosecution of pregnant women. If you want to change that, you would have to amend § 1-733 to add an explicit criminal penalty, or pass a new statute. The AG's reasoning makes clear that any such legislation would be a sharp break from the consistent legislative pattern.

If you want to clarify current law against any future ambiguity, an explicit "no penalty against the pregnant woman" clause in § 1-733 (matching the pattern in many other abortion statutes) would put the question to rest.

If you are an advocate or community organization

The AG's bottom line aligns with what most pro-life leaders have publicly said: the legal regime targets abortionists, not women. The opinion is also helpful for women facing threats from non-state actors who claim Oklahoma law criminalizes them.

Common questions

Q: What does § 861 actually criminalize?
A: Section 861 makes it a felony for any person to administer or prescribe medicine, drug, or substance, or use any instrument or other means, with intent to procure a miscarriage, unless necessary to preserve the woman's life. Punishment is 2-5 years in the State Penitentiary. The statute targets abortion providers and assistants, not the pregnant woman.

Q: What was § 862, and why was it repealed?
A: Section 862 was a misdemeanor statute targeting "every woman who solicits . . . or submits to" an abortion. It was on the books from territorial days until 2022, but the AG's office found no record of any reported prosecution under it. The 2022 trigger law (S.B. 1555) repealed it explicitly.

Q: Does this mean abortion is legal in Oklahoma?
A: No. Abortion remains a felony for the provider under § 861. The opinion only addresses whether the pregnant woman herself can be prosecuted. She cannot.

Q: What about medication abortion at home?
A: Section 1-731.2(C) explicitly says: "No criminal penalty may be assessed against the pregnant woman upon whom the drug-induced abortion is attempted, induced or performed." So a woman cannot be prosecuted, but the person who supplied the medication may face liability under § 861 or § 731.2.

Q: What about telemedicine abortion across state lines?
A: Federal law and federal jurisdictional issues complicate this. The opinion does not address whether out-of-state providers can be prosecuted. The pregnant woman herself remains uniformly exempt from Oklahoma criminal liability.

Q: What about miscarriage or stillbirth?
A: Outside the scope of this opinion, but other Oklahoma statutes (§ 691, § 1053(F)) explicitly state the mother is not to be prosecuted for the death of her unborn child unless she committed an underlying crime that caused the death. So a miscarriage or stillbirth alone is not criminal.

Q: Does § 21 of Title 21 ever convert a "shall not" statute into a misdemeanor?
A: Sometimes, when the surrounding context indicates legislative intent to criminalize (Whirlpool, gun statute in the Penal Code). It does not when the surrounding context shows the Legislature knew how to add criminal penalties and did not (Stegall, school code).

Q: Is this opinion binding on courts?
A: AG opinions are binding on state officials but not on courts. A district court could disagree. But the opinion's textual analysis and statutory canons are persuasive, and the OCCA's pro-strict-construction posture aligns with the result.

Q: What about prosecutions for accomplice liability?
A: A pregnant woman cannot be charged as an accomplice or principal to her own abortion. Pre-Roe Oklahoma cases (Wilson, Cahill) treated her as victim, not accomplice. The opinion adopts and reaffirms that view.

Background and statutory framework

Oklahoma's abortion statutes trace to territorial law in 1890. Section 861 (felony for providers) has been on the books continuously since 1890. Section 862 (misdemeanor for women) was on the books from territorial days until 2022.

After Roe v. Wade (1973), § 861 was held unconstitutional (Jobe v. State, 1973; Henrie v. Derryberry, N.D. Okla. 1973). It remained on the books but unenforceable. The Legislature continued to add new statutes during the Roe era, all targeting providers and explicitly excluding women from prosecution. The pattern was consistent across:

• 1978: § 1-733 (self-induction without physician supervision)
• 1998: § 684 (partial-birth abortion)
• 2010: §§ 1-729a, 1-731.2, 1-737.4 (medication abortion, sex selection, clinic notice)
• 2011: § 1-745.7 (pain-capable)
• 2015: § 1-737.9 (dismemberment)
• 2022: § 1-731.4 (criminal abortion ban with woman exemption)

When Dobbs overturned Roe in June 2022, Oklahoma's trigger law immediately repealed § 862. The AG's certification letter (June 24, 2022) restored § 861 to enforceability against providers.

The Oklahoma Supreme Court has since:

• Upheld § 861 against constitutional challenge (OCRJ v. Drummond, 2023, with the life-of-the-mother exception preserved).
• Struck down § 1-731.4 on medical emergency grounds (OCRJ v. State, 2023).

This opinion fits within that landscape by clarifying that the prosecution focus is on providers, not pregnant women.

The opinion's statutory construction is conventional. The OCCA's strict-construction rule (Davis, Newlun, Tran) and the rule of lenity disfavor reading criminal liability into statutes that do not clearly impose it. Section 1-733 simply does not impose criminal liability on its face.

Citations and references

Statutes:
- 21 O.S. § 861 (Abortion)
- 21 O.S. § 21 (Acts prohibited but not specifically punished)
- 63 O.S. § 1-733 (Self-induction under physician supervision)

Cases:
- Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) (overturned Roe and Casey)
- Oklahoma Call for Reprod. Just. v. Drummond, 2023 OK 24, 526 P.3d 1123 (§ 861 upheld)
- Oklahoma Call for Reprod. Just. v. State, 2023 OK 60, 531 P.3d 117 (§ 1-731.4 struck on medical emergency grounds)
- State v. Stegall, 1953 OK CR 13, 253 P.2d 183 (§ 21 does not always apply)
- Whirlpool Corp. v. Henry, 2005 OK CR 7, 110 P.3d 83 (§ 21 does apply when context indicates criminal intent)
- Wilson v. State, 1927 OK CR 42, 252 P. 1106 (woman as victim, not accomplice)
- Newlun v. State, 2015 OK CR 7, 348 P.3d 209 (rule of lenity)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2023/ag-opinion-2023-12.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2023/ag_opinion_2023-12-2.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2023-12

The Honorable Warren Hamilton, Oklahoma State Senate, District 7
The Honorable George Burns, Oklahoma Senate, District 5
The Honorable Shane Jett, Oklahoma Senate, District 17
The Honorable Tom Gann, Oklahoma House of Representatives, District 8
The Honorable Nathan Dahm, Oklahoma Senate, District 33
The Honorable David Smith, Oklahoma House of Representatives, District 18

November 21, 2023

Dear Senators Hamilton, Jett, Dahm, Burns, and Representatives Gann and Smith:

This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following question:

Does Oklahoma law, through section 1-733 of title 63 of the Oklahoma Statutes or some other provision, make it a punishable crime for a pregnant woman to solicit, perform, or self-induce an abortion to terminate her pregnancy intentionally?

I. SUMMARY

The answer to your question is no. Oklahoma law does not allow the punishment of pregnant women attempting an abortion, self-induced or otherwise. The Legislature has repeatedly made this clear in statutory text, and just last year, repealed the one law that would have expressly allowed such a prosecution. Nor is there any historical tradition of such punishment in Oklahoma or nationwide prior to the Roe v. Wade era. This in no way indicates that abortion is lawful, as longstanding Oklahoma law prohibits the performance of—or the aiding and abetting of—every abortion throughout pregnancy except as necessary to save a pregnant woman's life.

II. BACKGROUND

A. In the decades prior to Roe v. Wade, Oklahoma prosecuted practitioners of abortion to protect pregnant women, unborn children, and society.

In Oklahoma, attempting or performing an abortion has been a crime at every stage of pregnancy, tracing all the way back to Oklahoma Territory law from 1890. In its current form, this law (21 O.S. § 861) makes it a felony for any person who administers, prescribes, advises or procures any drug or means with intent to procure a miscarriage, unless necessary to preserve the woman's life.

A separate, companion statute—title 21, section 862, in its most recent iteration—was on the books and allowed for the prosecution of a pregnant woman who sought an abortion. But this office has been unable to identify any reported prosecutions or convictions of pregnant women under section 862. The Court of Criminal Appeals repeatedly held that the pregnant woman "is regarded as the victim of the crime, rather than a participant in it." Cahill v. State, 1947 OK CR 27, 178 P.2d 657, 659–60.

Nationwide, the pre-Roe practice was consistent: regardless of whether state laws on abortion technically applied to pregnant women in some way, the States rarely, if ever, prosecuted them for abortion alone, much less obtained a conviction.

B. In the Roe and Casey era, Oklahoma enacted numerous laws to protect unborn children and women from abortion.

Five years after Roe, the Oklahoma Legislature enacted: "No woman shall perform or induce an abortion upon herself except under the supervision of a duly licensed physician." 63 O.S.Supp.1978, § 1-733. This law was silent about punishment, and nothing has changed on that front in the forty-five years since. This office is not aware of any enforcement action or attempted prosecution brought against a pregnant woman under this law since it took effect.

While the Legislature increased protections for the unborn during the Roe era, it repeatedly indicated that pregnant women should not be prosecuted solely for seeking or obtaining an abortion. Both 21 O.S. § 652(E) and § 691(D) contain an identical proviso: "Under no circumstances shall the mother of the unborn child be prosecuted for causing the death of the unborn child unless the mother has committed a crime that caused the death of the unborn child."

C. The Supreme Court overturned Roe v. Wade, the Legislature repealed section 862, and the Legislature again insisted that pregnant women should not be prosecuted.

In April 2022, the Legislature amended its "trigger" law to ensure the immediate repeal of four statutes upon the Attorney General's certification that the Supreme Court overruled Roe and Casey. This included title 21, section 862. The Legislature passed another abortion ban that, like section 861, applied throughout pregnancy. This law expressly stated that it does not "authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child."

On June 24, 2022, the United States Supreme Court overruled Roe and Casey. The same day, the prior administration of this office completed the certification required under the trigger law, repealing section 862.

III. DISCUSSION

It is simply impossible to look at the Legislature's repeated insistence in various statutory enactments that pregnant women are off-limits from prosecution and civil liability when it comes to abortion, as well as its definitive repeal of section 862, and conclude that the Legislature nevertheless somehow intended for pregnant women who seek or obtain abortions to be brought up on misdemeanor or even homicide charges. The Legislature could hardly have been clearer on this topic.

You asked this office to review section 1-733 of title 63, which states that "[n]o woman shall perform or induce an abortion upon herself, except under the supervision of a duly licensed physician." But that statute does not designate such self-performance or inducement a crime, nor does it mention any punishment whatsoever.

Section 21 of title 21 does not change the analysis. To be sure, that statute does say that "[w]here the performance of an act is prohibited by any statute, and no penalty for the violation of such statute is imposed in any statute, the doing of such act is a misdemeanor." But Oklahoma courts have never interpreted this language as imposing an absolute rule to be applied regardless of context.

The OCCA held as early as 1953, for example, that section 21 did not apply to a statute making it "unlawful for any person to serve . . . as superintendent" of a school. State v. Stegall, 1953 OK CR 13, 253 P.2d 183, 185. The Legislature's decision to make the violation merely "unlawful" but not a criminal misdemeanor "was not a mere oversight, but on the contrary creates a presumption that it was intentional."

Unlike the statute in Whirlpool, section 1-733 is not found in the Penal Code, but rather in the Oklahoma Public Health Code. The surrounding context indicates that the Legislature knows exactly how to put a criminal punishment provision into a statute. It declined to do so with section 1-733.

Specific statutes control over general statutes. Section 21 of title 21 is a general statute, whereas section 1-733 and the other statutes preventing prosecution of women are statutes specifically about abortion, and therefore, they control on this topic. More recently-enacted legislation controls over earlier provisions. All the provisions prohibiting the prosecution of pregnant women—as well as the repeal of section 862—come after section 1-733 was enacted in 1978.

Finally, the OCCA has repeatedly emphasized that it is "committed to the rule of strict construction in the application of criminal statutes." Criminal statutes must be construed strictly against the State and liberally in favor of the accused.

It is, therefore, the official Opinion of the Attorney General that:

Section 1-733 of title 63 does not permit the charging of a pregnant woman with a misdemeanor or felony for performing or inducing an abortion on herself to intentionally terminate her pregnancy, nor does any other Oklahoma statute.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

ZACH WEST
DIRECTOR OF SPECIAL LITIGATION