IN RE INITIATIVE PETITION NO. 406, STATE QUESTION 782

IN RE INITIATIVE PETITION NO. 406, STATE QUESTION 782
2016 OK 34
Case Number: 114704
Decided: 03/22/2016

THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

In re Initiative Petition No. 406, State Question 782.

MEMORANDUM OPINION

PER CURIAM

¶1 Protestants challenge the legal sufficiency of Initiative Petition 406 which proposes to amend the Oklahoma Constitution by adding the following section to Article II:

A. As used in this section:

1. "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device to intentionally kill an unborn human being;

2. "Unborn human being" means the offspring of human beings from the moment of conception until either live birth or death, including the human conceptus, zygote, morula, blastocyst, embryo and fetus, whether conceived and/or located inside or outside the body of a human female;

3. "Conception" means the fertilization of the ovum of a female individual by the sperm of a male individual.

B. It shall be unlawful for any person to perform, procure, or attempt to perform an abortion.

C. Any person who performs or procures an abortion shall be guilty of homicide.

Upon review of the Protest and the Response to the proposed amendment, this Court determines this matter is controlled by the United States Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992).

¶2 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 Supremacy Clause of the United States Constitution provides:

This Constitution and the Laws of the United States shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. Art. VI, cl. 2. The Oklahoma Constitution reaffirms the effect of the Supremacy Clause by providing: "The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land." Okla. Const. Art. 1, § 1. Thus, this Court is duty bound by the United States and the Oklahoma Constitutions to "follow the mandate of the United States Supreme Court on matters of federal constitutional law." In re Initiative Petition No. 349, State Question 642, 1992 OK 122, ¶ 1.

¶3 The proposed amendment to the Oklahoma Constitution 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 Initiative is hereby stricken.

ALL JUSTICES CONCUR.