# In Re Initiative Petition No. 349, State Question No. 642

> Supreme Court of Oklahoma · August 4, 1992 · 65 O.B.A.J. 3225

URL: https://www.frixlaw.com/law-library/cases/9539488

## Case

- **Full name:** In Re INITIATIVE PETITION NO. 349, STATE QUESTION NO. 642
- **Court:** Supreme Court of Oklahoma
- **Decided:** August 4, 1992
- **Citations:** 65 O.B.A.J. 3225; 838 P.2d 1; 1992 OK 122; 1992 Okla. LEXIS 177; 1992 WL 184028
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hodges
- **Judges:** Kauger, Lavender, Simms, Summers, Watt, Hodges, Hargrave, Opala, Wilson, Kau-Ger
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9539488

## How later opinions describe it (automated extraction)

- holding unconstitutional initiative effort to ban previability nontherapeutic abortions except in cases of rape, incest, grave physical or mental defect of the fetus, or grave impairment of mother’s physical or mental health
- noting there is no controversy about the nature of this duty and there can be none

## Opinion text

HODGES, Vice Chief Justice,
concurring in part, dissenting in part, with whom HARGRAVE, Justice, joins.
I dissented in this Court’s decision to sua sponte direct the parties to brief the impact of Planned Parenthood v. Casey, - U.S. -, 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992), on the initiative petition. The issue of the constitutionality of the measure proposed by the initiative petition was not initially briefed by the parties. In fact, protestants withdrew their constitutional claims. Thus, the issue is not properly before the Court and should not be the determining factor in denying the people their right to vote.
The people have a constitutional right to vent their anger and frustration through the initiative process in an effort to effect change in their government. The proponents are correct that central core political issues such as abortion should be submitted to a vote of the people when presented by an initiative petition.
It appears that all parties in this case want the initiative petition submitted to a vote of the people only to be thwarted by this Court’s sua sponte injection of the constitutional issues. A healing between competing sides of the abortion question may never be reached but perhaps, if allowed, a vote of the people could be a beginning.
Casey presents a United States Supreme Court bitterly fragmented over the continu *15 ing viability of Roe v. Wade. Casey may or may not remain the law of the land. 1 Therefore, for all of the above reasons, I personally feel that it would be judicious to address the constitutionality of the measure after such time it may be approved by a vote of the people. But due to the rejection of this approach by my colleagues in a divided vote, I will address the constitutional issue before this Court.
I agree that the measure proposed by the initiative petition is unconstitutional. It draws no distinction between restrictions on the abortion of a viable fetus and a fetus in the initial stages of development as required by the United States Supreme Court in the cases of Roe and Casey . Proponents admit the proposed measure is unconstitutional and was intentionally drawn so it could be presented to the United States Supreme Court as a test case to overrule Roe v. Wade. If so, then this option is still open for them as a certiorari appeal to the United States Supreme Court.
Today’s refusal by this Court to allow a vote on the initiative petition based on its unconstitutionality could be reviewed according to the United States Supreme Court’s Rule 10. Subdivision 1(c) of that rule provides that a petition for certiorari review will be considered “when a state court ... has decided an important question of federal law which has not been, but should be settled by [the United States Supreme Court], or has decided a federal question in a way that conflicts with applicable decisions of [that] court.” If, as proponents claim, the United States Supreme Court should be the court to examine the constitutionality of the measure, that Court may choose to do so by granting certiorari review of our decision today.
. Justice Blackmun made the following observation in Casey :
I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the [abortion] issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.
Id. at -, 112 S.Ct. at 2854 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9539488. Public record. Not legal advice.