Alabama 2022 Regular Session

Alabama House Bill HB23 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 HB23
2	2	2 214981-2
3	3	3 By Representatives Kiel, Shedd, Mooney, Hanes, Standridge,
4	4	4 Smith, Estes, Dismukes, Carns, Holmes, Wilcox, Lipscomb,
5	5	5 Bedsole, Robertson, Moore (P), Shaver, Sorrells, Allen,
6	6	6 Marques, Reynolds, Stadthagen, Sorrell and Whorton
7	7	7 RFD: Judiciary
8	8	8 First Read: 11-JAN-22
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17	17	8 SYNOPSIS: Under existing law, it is unlawful for any
18	18	9 person to intentionally perform or attempt to
19	19	10 perform an abortion except where a medical
20	20	11 emergency exists.
21	21	12 This bill would prohibit a physician from
22	22	13 performing an abortion if a fetal heart beat has
23	23	14 been detected or if no test for a fetal heartbeat
24	24	15 has been performed, except in circumstances where a
25	25	16 medical emergency exists.
26	26	17 This bill would provide a private cause of
27	27	18 action for enforcement of this act by any person
28	28	19 who performs or induces an abortion or who
29	29	20 knowingly engages in conduct that aids or abets the
30	30	21 performance or inducement of an abortion, including
31	31	22 paying for or reimbursing costs of an abortion.
32	32	23 This bill would provide injunctive relief
33	33	24 and provide damages in an amount of not less than
34	34	25 $10,000 for each abortion performed or induced and
35	35	26 attorneys' fees.
36	36	Page 1 1 This bill would provide that a defendant
37	37	2 against whom a civil action is brought does not
38	38	3 have standing to assert the rights of women seeking
39	39	4 an abortion as a defense to liability, with certain
40	40	5 exceptions based on federal case law.
41	41	6 This bill would prohibit a court from
42	42	7 allowing, in certain circumstances, as an
43	43	8 affirmative defense to a cause of action, that a
44	44	9 woman seeking an abortion faces an undue burden.
45	45	10 This bill would also provide that any person
46	46	11 who seeks declaratory or injunctive relief to
47	47	12 prevent this state from enforcing any law that
48	48	13 restricts abortion or that limits taxpayer funding
49	49	14 of abortions is jointly and severally liable to pay
50	50	15 costs and attorneys' fees of the prevailing party.
51	51	16
52	52	17 A BILL
53	53	18 TO BE ENTITLED
54	54	19 AN ACT
55	55	20
56	56	21 Relating to abortion; to prohibit abortions after
57	57	22 detection of an unborn child's heartbeat; to authorize a
58	58	23 private civil right of action against anyone who performs or
59	59	24 aids and abets an abortion procedure; to provide for
60	60	25 injunctive relief and damages; to prohibit certain defenses in
61	61	26 a cause of action; and to provide that a person challenging a
62	62	Page 2 1 state abortion law pay the costs and attorneys' fees of the
63	63	2 prevailing party.
64	64	3 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
65	65	4 Section 1. This act shall be known and may be cited
66	66	5 as the Alabama Heartbeat Act.
67	67	6 Section 2. For the purposes of this act, the
68	68	7 following terms shall have the following meanings:
69	69	8 (1) FETAL HEARTBEAT. A cardiac activity or the
70	70	9 steady and repetitive rhythmic contraction of the fetal heart
71	71	10 within the gestational sac.
72	72	11 (2) GESTATIONAL AGE. The amount of time that has
73	73	12 elapsed from the first day of a woman's last menstrual period.
74	74	13 (3) GESTATIONAL SAC. The structure comprising the
75	75	14 extraembryonic membranes that envelop the unborn child and
76	76	15 that is typically visible by ultrasound after the fourth week
77	77	16 of pregnancy.
78	78	17 (4) PHYSICIAN. An individual licensed to practice
79	79	18 medicine or osteopathy in this state.
80	80	19 (5) PREGNANCY. The human female reproductive
81	81	20 condition that:
82	82	21 a. Begins with fertilization;
83	83	22 b. Occurs when the woman is carrying the developing
84	84	23 human offspring; and
85	85	24 c. Is calculated from the first day of the woman's
86	86	25 last menstrual period.
87	87	Page 3 1 (6) STANDARD MEDICAL PRACTICE. The degree of skill,
88	88	2 care, and diligence that an obstetrician of ordinary judgment,
89	89	3 learning, and skill would employ in like circumstances.
90	90	4 (7) UNBORN CHILD. A human fetus or embryo in any
91	91	5 stage of gestation from fertilization until birth.
92	92	6 Section 3. The Legislature finds, according to
93	93	7 contemporary medical research, all of the following:
94	94	8 (1) That a fetal heartbeat has become a key medical
95	95	9 predictor that an unborn child will reach live birth.
96	96	10 (2) That cardiac activity begins at a biologically
97	97	11 identifiable moment in time, normally when the fetal heart is
98	98	12 formed in the gestational sac.
99	99	13 (3) That this state has compelling interests from
100	100	14 the outset of a woman's pregnancy in protecting the health of
101	101	15 the woman and the life of the unborn child.
102	102	16 (4) That to make an informed choice about whether to
103	103	17 continue her pregnancy, the pregnant woman has a compelling
104	104	18 interest in knowing the likelihood of her unborn child
105	105	19 surviving to full-term birth based on the presence of cardiac
106	106	20 activity.
107	107	21 Section 4. (a) For the purposes of determining the
108	108	22 presence of a fetal heartbeat under this section, "standard
109	109	23 medical practice" includes employing the appropriate means of
110	110	24 detecting the heartbeat based on the estimated gestational age
111	111	25 of the unborn child and the condition of the woman and her
112	112	26 pregnancy.
113	113	Page 4 1 (b) Except as provided by Section 6, a physician may
114	114	2 not knowingly perform or induce an abortion on a pregnant
115	115	3 woman unless the physician has determined, in accordance with
116	116	4 this section, whether the woman's unborn child has a
117	117	5 detectable fetal heartbeat.
118	118	6 (c) In making a determination under subsection (b),
119	119	7 the physician must use a test that meets both of the following
120	120	8 criteria:
121	121	9 (1) Is consistent with the physician's good faith
122	122	10 and reasonable understanding of standard medical practice.
123	123	11 (2) Is appropriate for the estimated gestational age
124	124	12 of the unborn child and the condition of the pregnant woman
125	125	13 and her pregnancy.
126	126	14 (d) A physician making a determination under
127	127	15 subsection (b) shall record in the pregnant woman's medical
128	128	16 record all of the following:
129	129	17 (1) The estimated gestational age of the unborn
130	130	18 child.
131	131	19 (2) The method used to estimate the gestational age.
132	132	20 (3) The test used for detecting a fetal heartbeat,
133	133	21 including the date, time, and results of the test.
134	134	22 Section 5. (a) Except as provided by Section 6, a
135	135	23 physician may not knowingly perform or induce an abortion on a
136	136	24 pregnant woman if the physician detected a fetal heartbeat for
137	137	25 the unborn child as required by Section 4 or failed to perform
138	138	26 a test to detect a fetal heartbeat.
139	139	Page 5 1 (b) A physician does not violate this section if the
140	140	2 physician performed a test for a fetal heartbeat as required
141	141	3 by Section 4 and did not detect a fetal heartbeat.
142	142	4 (c) This section does not affect either of the
143	143	5 following:
144	144	6 (1) Any provision of Title 26 that restricts or
145	145	7 regulates an abortion by a particular method or during a
146	146	8 particular stage of pregnancy.
147	147	9 (2) Any other provision of state law that regulates
148	148	10 or prohibits abortion.
149	149	11 Section 6. (a) Sections 4 and 5 do not apply if a
150	150	12 physician believes a medical emergency exists that prevents
151	151	13 compliance with this act.
152	152	14 (b) A physician who performs or induces an abortion
153	153	15 under circumstances described by subsection (a) shall make
154	154	16 written notations in the pregnant woman's medical record of
155	155	17 both of the following:
156	156	18 (1) The physician's belief that a medical emergency
157	157	19 necessitated the abortion.
158	158	20 (2) The medical condition of the pregnant woman that
159	159	21 prevented compliance with this act.
160	160	22 (c) A physician performing or inducing an abortion
161	161	23 under this section shall maintain in the physician's practice
162	162	24 records a copy of the notations made under subsection (b).
163	163	25 Section 7. (a) This act does not create or recognize
164	164	26 a right to abortion before a fetal heartbeat is detected.
165	165	Page 6 1 (b) This act may not be construed to do either of
166	166	2 the following:
167	167	3 (1) Authorize the initiation of a cause of action
168	168	4 against or the prosecution of a woman on whom an abortion is
169	169	5 performed or induced or attempted to be performed or induced
170	170	6 in violation of this act.
171	171	7 (2) Wholly or partly repeal, either expressly or by
172	172	8 implication, any other law that regulates or prohibits
173	173	9 abortion.
174	174	10 Section 8. (a) Notwithstanding any other law, the
175	175	11 requirements of this act shall be enforced exclusively through
176	176	12 the private civil actions described in Section 9. No
177	177	13 enforcement of this act, in response to violations of this
178	178	14 act, may be taken by this state, a political subdivision, a
179	179	15 district attorney, or a public official or public employee of
180	180	16 this state or a political subdivision against any person,
181	181	17 except as provided in Section 9.
182	182	18 (b) Subsection (a) may not be construed to:
183	183	19 (1) Legalize the conduct prohibited by this act or
184	184	20 by Chapter 23H, Title 26, Code of Alabama 1975.
185	185	21 (2) Limit in any way or affect the availability of a
186	186	22 remedy established in Section 9.
187	187	23 (3) Limit the enforceability of any other laws that
188	188	24 regulate or prohibit abortion.
189	189	25 Section 9. (a) Any person, other than a public
190	190	26 official or public employee of a state or political
191	191	Page 7 1 subdivision of this state, may bring a civil action against
192	192	2 any person who does any of the following:
193	193	3 (1) Performs or induces an abortion in violation of
194	194	4 this act.
195	195	5 (2) Knowingly engages in conduct that aids or abets
196	196	6 the performance or inducement of an abortion, including paying
197	197	7 for or reimbursing the costs of an abortion through insurance
198	198	8 or otherwise, if the abortion is performed or induced in
199	199	9 violation of this act, regardless of whether the person knew
200	200	10 or should have known that the abortion would be performed or
201	201	11 induced in violation of this act.
202	202	12 (3) Intends to engage in the conduct described by
203	203	13 subdivision (1) or (2).
204	204	14 (b) If a claimant prevails in an action brought
205	205	15 under this section, the court shall award all of the
206	206	16 following:
207	207	17 (1) Injunctive relief sufficient to prevent the
208	208	18 defendant from violating this act or engaging in acts that aid
209	209	19 or abet violations of this act.
210	210	20 (2) Damages in an amount of not less than ten
211	211	21 thousand dollars ($10,000) for each abortion that the
212	212	22 defendant performed or induced in violation of this act and
213	213	23 for each abortion performed or induced in violation of this
214	214	24 act that the defendant aided or abetted.
215	215	25 (3) Court costs and attorneys' fees.
216	216	26 (c) Notwithstanding subsection (b), a court may not
217	217	27 award relief under this section in response to a violation of
218	218	Page 8 1 subdivision (a)(1) or (2) if the defendant demonstrates that
219	219	2 the defendant previously paid the full amount of damages under
220	220	3 subdivision (b)(2) in a previous action for that particular
221	221	4 abortion performed or induced in violation of this act or for
222	222	5 the particular conduct that aided or abetted an abortion
223	223	6 performed or induced in violation of this act.
224	224	7 (d) Notwithstanding Title 6, Code of Alabama 1975,
225	225	8 or any other law, a person may bring an action under this
226	226	9 section not later than four years from the date the cause of
227	227	10 action accrues.
228	228	11 (e) Notwithstanding any other law, the following are
229	229	12 not a defense to an action brought under this section:
230	230	13 (1) Ignorance or mistake of law.
231	231	14 (2) A defendant's belief that the requirements of
232	232	15 this act are unconstitutional or were unconstitutional.
233	233	16 (3) A defendant's reliance on any court decision
234	234	17 that has been overruled on appeal or by a subsequent court,
235	235	18 even if that court decision had not been overruled when the
236	236	19 defendant engaged in conduct that violates this act.
237	237	20 (4) A defendant's reliance on any state or federal
238	238	21 court decision that is not binding on the court in which the
239	239	22 action has been brought.
240	240	23 (5) Non-mutual issue preclusion or non-mutual claim
241	241	24 preclusion.
242	242	25 (6) The consent of the unborn child's mother to the
243	243	26 abortion.
244	244	Page 9 1 (7) Any claim that the enforcement of this act or
245	245	2 the imposition of civil liability against the defendant will
246	246	3 violate the constitutional rights of third parties, except as
247	247	4 provided by Section 10.
248	248	5 (f) It is an affirmative defense to an action under
249	249	6 this section if either of the following occur:
250	250	7 (1) A person sued under subdivision (a)(2)
251	251	8 reasonably believed, after conducting a reasonable
252	252	9 investigation, that the physician performing or inducing the
253	253	10 abortion had complied or would comply with this act.
254	254	11 (2) A person sued under subdivision (a)(3)
255	255	12 reasonably believed, after conducting a reasonable
256	256	13 investigation, that the physician performing or inducing the
257	257	14 abortion will comply with this act.
258	258	15 (g) The defendant has the burden of proving an
259	259	16 affirmative defense under subdivision (f)(1) or (2) by a
260	260	17 preponderance of the evidence.
261	261	18 (h) This section may not be construed to impose
262	262	19 liability on any speech or conduct protected by the First
263	263	20 Amendment of the United States Constitution, as made
264	264	21 applicable to the states through the United States Supreme
265	265	22 Court's interpretation of the Fourteenth Amendment of the
266	266	23 United States Constitution, or by Section 4, Article 1,
267	267	24 Constitution of Alabama of 1901.
268	268	25 (i) Notwithstanding any other law, this state, a
269	269	26 public official of the state or a political subdivision, or a
270	270	27 district attorney may not intervene in an action brought under
271	271	Page 10 1 this section. This subsection does not prohibit an individual
272	272	2 described in this subsection from filing an amicus curiae
273	273	3 brief in the action.
274	274	4 (j) Notwithstanding any other law, a court may not
275	275	5 award costs or attorneys' fees.
276	276	6 (k) Notwithstanding any other law, a civil action
277	277	7 under this section may not be brought by a person who
278	278	8 impregnated the abortion patient through an act of rape,
279	279	9 sexual abuse, incest, or any other sex offense referenced in
280	280	10 Section 15-20A-5, Code of Alabama 1975.
281	281	11 Section 10. (a) A defendant against whom an action
282	282	12 is brought under Section 9 does not have standing to assert
283	283	13 the rights of women seeking an abortion as a defense to
284	284	14 liability under that section unless either of the following
285	285	15 occur:
286	286	16 (1) The United States Supreme Court holds that the
287	287	17 courts of this state must confer standing on that defendant to
288	288	18 assert the third-party rights of women seeking an abortion in
289	289	19 state court as a matter of federal constitutional law.
290	290	20 (2) The defendant has standing to assert the rights
291	291	21 of women seeking an abortion under the tests for third-party
292	292	22 standing established by the United States Supreme Court.
293	293	23 (b) A defendant in an action brought under Section 9
294	294	24 may assert an affirmative defense to liability under this
295	295	25 section if both of the following occur:
296	296	Page 11 1 (1) The defendant has standing to assert the
297	297	2 third-party rights of a woman or group of women seeking an
298	298	3 abortion in accordance with subsection (a).
299	299	4 (2) The defendant demonstrates that the relief
300	300	5 sought by the claimant will impose an undue burden on that
301	301	6 woman or that group of women seeking an abortion.
302	302	7 (c) A court may not find an undue burden under
303	303	8 subsection (b) unless the defendant introduces evidence
304	304	9 proving both of the following:
305	305	10 (1) An award of relief will prevent a woman or a
306	306	11 group of women from obtaining an abortion.
307	307	12 (2) An award of relief will place a substantial
308	308	13 obstacle in the path of a woman or a group of women who are
309	309	14 seeking an abortion.
310	310	15 (d) A defendant may not establish an undue burden
311	311	16 under this section by doing either of the following:
312	312	17 (1) Merely demonstrating that an award of relief
313	313	18 will prevent women from obtaining support or assistance,
314	314	19 financial or otherwise, from others in their effort to obtain
315	315	20 an abortion.
316	316	21 (2) Arguing or attempting to demonstrate that an
317	317	22 award of relief against other defendants or other potential
318	318	23 defendants will impose an undue burden on women seeking an
319	319	24 abortion.
320	320	25 (e) The affirmative defense under subsection (b) is
321	321	26 not available if the United States Supreme Court overrules Roe
322	322	27 v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey,
323	323	Page 12 1 505 U.S. 833 (1992), regardless of whether the conduct on
324	324	2 which the cause of action is based under Section 9 occurred
325	325	3 before the Supreme Court overruled either of those decisions.
326	326	4 (f) Nothing in this section shall in any way limit
327	327	5 or preclude a defendant from asserting the defendant's
328	328	6 personal constitutional rights as a defense to liability under
329	329	7 Section 9, and a court may not award relief under Section 9 if
330	330	8 the conduct for which the defendant has been sued was an
331	331	9 exercise of state or federal constitutional rights that
332	332	10 personally belong to the defendant.
333	333	11 Section 11. (a) Notwithstanding any other law,
334	334	12 including Chapter 3, Title 6, Code of Alabama 1975, a civil
335	335	13 action brought under Section 9 shall be brought in one of the
336	336	14 following:
337	337	15 (1) The county in which all or a substantial part of
338	338	16 the events or omissions giving rise to the claim occurred.
339	339	17 (2) The county of residence for any one of the
340	340	18 natural person defendants at the time the cause of action
341	341	19 accrued.
342	342	20 (3) The county of the principal office in this state
343	343	21 of any one of the defendants that is not a natural person.
344	344	22 (4) The county of residence for the claimant if the
345	345	23 claimant is a natural person residing in this state.
346	346	24 (b) If a civil action is brought under Section 9 in
347	347	25 any one of the venues described in subsection (a), the action
348	348	26 may not be transferred to a different venue without the
349	349	27 written consent of all parties.
350	350	Page 13 1 Section 12. (a) This section prevails over any
351	351	2 conflicting law, including the Uniform Declaratory Judgments
352	352	3 Act and Title 6, Code of Alabama 1975.
353	353	4 (b) This state or a political subdivision has
354	354	5 sovereign immunity, and each public official and public
355	355	6 employee of this state or a political subdivision shall be
356	356	7 immune from liability in any action, claim, or counterclaim or
357	357	8 any type of legal or equitable action that challenges the
358	358	9 validity of any provision or application of this act, on
359	359	10 constitutional grounds or otherwise.
360	360	11 (c) A provision of state law may not be construed to
361	361	12 waive or abrogate an immunity described in subsection (b)
362	362	13 unless it expressly waives immunity under this section.
363	363	14 Section 13. (a) Notwithstanding any other law, any
364	364	15 person, including an entity, attorney, or law firm, who seeks
365	365	16 declaratory or injunctive relief to prevent this state, a
366	366	17 political subdivision, any governmental entity or public
367	367	18 official in this state, or any person in this state from
368	368	19 enforcing any state law, ordinance, rule, or any other type of
369	369	20 law that regulates or restricts abortion or that limits
370	370	21 taxpayer funding for individuals or entities that perform or
371	371	22 promote abortions, in any state or federal court, or that
372	372	23 represents any litigant seeking such relief in any state or
373	373	24 federal court, is jointly and severally liable to pay the
374	374	25 court costs and attorneys' fees of the prevailing party.
375	375	Page 14 1 (b) For purposes of this section, a party is
376	376	2 considered a prevailing party if a state or federal court does
377	377	3 either of the following:
378	378	4 (1) Dismisses any claim or cause of action brought
379	379	5 against the party that seeks the declaratory or injunctive
380	380	6 relief described by subsection (a), regardless of the reason
381	381	7 for the dismissal.
382	382	8 (2) Enters judgment in the party's favor on any such
383	383	9 claim or cause of action.
384	384	10 (c) Regardless of whether a prevailing party sought
385	385	11 to recover costs or attorneys' fees in the underlying action,
386	386	12 a prevailing party under this section may bring a civil action
387	387	13 to recover costs and attorneys' fees against a person,
388	388	14 including an entity, attorney, or law firm, that sought
389	389	15 declaratory or injunctive relief described by subsection (a)
390	390	16 not later than the third anniversary of the date on which, as
391	391	17 applicable either of the following:
392	392	18 (1) The dismissal or judgment described by
393	393	19 subsection (b) becomes final on the conclusion of appellate
394	394	20 review.
395	395	21 (2) The time for seeking appellate review expires.
396	396	22 (d) It is not a defense to an action brought under
397	397	23 subsection (c) that any of the following occur:
398	398	24 (1) A prevailing party under this section failed to
399	399	25 seek recovery of costs or attorneys' fees in the underlying
400	400	26 action.
401	401	Page 15 1 (2) The court in the underlying action declined to
402	402	2 recognize or enforce the requirements of this section.
403	403	3 (3) The court in the underlying action held that any
404	404	4 provisions of this section are invalid, unconstitutional, or
405	405	5 preempted by federal law, notwithstanding the doctrines of
406	406	6 issue or claim preclusion.
407	407	7 Section 14. (a) A state law that regulates or
408	408	8 prohibits abortion may not be construed to repeal any other
409	409	9 law that regulates or prohibits abortion, either wholly or
410	410	10 partly, unless the act of the Legislature repealing the law
411	411	11 explicitly states that it is repealing the other law.
412	412	12 (b) A state law may not be construed to restrict a
413	413	13 political subdivision from regulating or prohibiting abortion
414	414	14 in a manner that is at least as stringent as the laws of this
415	415	15 state unless the statute explicitly states that political
416	416	16 subdivisions are prohibited from regulating or prohibiting
417	417	17 abortion in the manner described by the state law.
418	418	18 (c) Every state law that regulates or prohibits
419	419	19 abortion is severable in each of its applications to every
420	420	20 person and circumstance. If any law that regulates or
421	421	21 prohibits abortion is found by any court to be
422	422	22 unconstitutional, either on its face or as applied, then all
423	423	23 applications of that law that do not violate the United States
424	424	24 Constitution and the Constitution of Alabama of 1901, shall be
425	425	25 severed from the unconstitutional applications and shall
426	426	26 remain enforceable, notwithstanding any other law, and the
427	427	27 statute shall be interpreted as if containing language
428	428	Page 16 1 limiting the statute's application to the persons, group of
429	429	2 persons, or circumstances for which the statute's application
430	430	3 will not violate the United States Constitution and the
431	431	4 Constitution of Alabama of 1901.
432	432	5 Section 15. The provisions of this act are
433	433	6 severable. If any part of this act is declared invalid or
434	434	7 unconstitutional, that declaration shall not affect the part
435	435	8 which remains.
436	436	9 Section 16. This act shall become effective on the
437	437	10 first day of the third month following its passage and
438	438	11 approval by the Governor, or its otherwise becoming law.
439	439	Page 17