1 HB295
2 216483-2
3 By Representative Kiel
4 RFD: Judiciary
5 First Read: 08-FEB-22
Page 0 1 216483-2:n:02/02/2022:AHP*/cmg LSA2022-125R1
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8 SYNOPSIS: Under existing law, it is unlawful for any
9 person to intentionally perform or attempt to
10 perform an abortion except where a medical
11 emergency exists.
12 This bill would prohibit an abortion from
13 being performed if a fetal heartbeat has been
14 detected or if no test for a fetal heartbeat has
15 been performed, except in circumstances where a
16 medical emergency exists.
17 This bill would provide a private cause of
18 action for enforcement of this act against any
19 person who performs or induces an abortion or who
20 knowingly engages in conduct that aids or abets the
21 performance or inducement of an abortion, including
22 paying for or reimbursing costs of an abortion.
23 This bill would provide injunctive relief
24 and provide damages in an amount of not less than
25 $10,000 for each abortion performed or induced and
26 attorney fees.
Page 1 1 This bill would provide that a defendant
2 against whom a civil action is brought does not
3 have standing to assert the rights of women seeking
4 an abortion as a defense to liability, with certain
5 exceptions based on federal case law.
6 This bill would provide for affirmative
7 defenses to a cause of action.
8 This bill would prohibit a court from
9 awarding costs or attorney fees to a defendant in
10 an action brought against that defendant.
11 This bill would also provide that any person
12 who seeks declaratory or injunctive relief to
13 prevent this state from enforcing any law that
14 restricts abortion or that limits taxpayer funding
15 of abortions is jointly and severally liable to pay
16 costs and attorney fees of the prevailing party.
17
18 A BILL
19 TO BE ENTITLED
20 AN ACT
21
22 Relating to abortion; to prohibit abortions after
23 detection of an unborn child's heartbeat; to authorize a
24 private civil right of action against anyone who performs or
25 aids and abets an abortion procedure; to provide for
26 injunctive relief and damages; to provide for certain defenses
27 in a cause of action; to prohibit a court from awarding costs
Page 2 1 or attorney fees to a defendant under certain circumstances;
2 and to provide that a person challenging a state abortion law
3 pay the costs and attorney fees of the prevailing party.
4 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
5 Section 1. This act shall be known and may be cited
6 as the Alabama Heartbeat Act.
7 Section 2. For the purposes of this act, the
8 following terms shall have the following meanings:
9 (1) ABORTION. The same meaning as in Section
10 26-23H-3, Code of Alabama 1975.
11 (2) ECTOPIC PREGNANCY. The same meaning as in
12 Section 26-23H-3, Code of Alabama 1975.
13 (3) FETAL HEARTBEAT. A cardiac activity or the
14 steady and repetitive rhythmic contraction of the fetal heart
15 within the gestational sac.
16 (4) GESTATIONAL AGE. The amount of time that has
17 elapsed from the first day of a woman's last menstrual period.
18 (5) GESTATIONAL SAC. The structure comprising the
19 extraembryonic membranes that envelop the unborn child and
20 that is typically visible by ultrasound after the fourth week
21 of pregnancy.
22 (6) LETHAL ANOMALY. The same meaning as in Section
23 26-23H-3, Code of Alabama 1975.
24 (7) PHYSICIAN. An individual licensed to practice
25 medicine or osteopathy in this state.
26 (8) PREGNANCY. The human female reproductive
27 condition that:
Page 3 1 a. Begins with fertilization;
2 b. Occurs when the woman is carrying the developing
3 human offspring; and
4 c. Is calculated from the first day of the woman's
5 last menstrual period.
6 (9) SERIOUS HEALTH RISK TO THE UNBORN CHILD'S
7 MOTHER. The same meaning as in Section 26-23H-3, Code of
8 Alabama 1975.
9 (10) STANDARD MEDICAL PRACTICE. The degree of skill,
10 care, and diligence that an obstetrician of ordinary judgment,
11 learning, and skill would employ in like circumstances.
12 (11) UNBORN CHILD. A human fetus or embryo in any
13 stage of gestation from fertilization until birth.
14 (12) WOMAN. Any individual whose biological sex is
15 female, including any individual with XX chromosomes and any
16 individual with a uterus, regardless of any gender identity
17 that the individual asserts or claims.
18 Section 3. The Legislature finds, according to
19 contemporary medical research, all of the following:
20 (1) That a fetal heartbeat has become a key medical
21 predictor that an unborn child will reach live birth.
22 (2) That cardiac activity begins at a biologically
23 identifiable moment in time, normally when the fetal heart is
24 formed in the gestational sac.
25 (3) That this state has compelling interests from
26 the outset of a woman's pregnancy in protecting the health of
27 the woman and the life of the unborn child.
Page 4 1 (4) That to make an informed choice about whether to
2 continue her pregnancy, the pregnant woman has a compelling
3 interest in knowing the likelihood of her unborn child
4 surviving to full-term birth based on the presence of cardiac
5 activity.
6 Section 4. (a) For the purposes of determining the
7 presence of a fetal heartbeat under this section, "standard
8 medical practice" includes employing the appropriate means of
9 detecting the heartbeat based on the estimated gestational age
10 of the unborn child and the condition of the woman and her
11 pregnancy.
12 (b) Except as provided by Sections 6 and 7, an
13 abortion may not be performed or induced on a pregnant woman
14 unless a physician has determined, in accordance with this
15 section, whether the woman's unborn child has a detectable
16 fetal heartbeat.
17 (c) In making a determination under subsection (b),
18 the physician must use a test that meets both of the following
19 criteria:
20 (1) Is consistent with the physician's good faith
21 and reasonable understanding of standard medical practice.
22 (2) Is appropriate for the estimated gestational age
23 of the unborn child and the condition of the pregnant woman
24 and her pregnancy.
25 (d) A physician making a determination under
26 subsection (b) shall record in the pregnant woman's medical
27 record all of the following:
Page 5 1 (1) The estimated gestational age of the unborn
2 child.
3 (2) The method used to estimate the gestational age.
4 (3) The test used for detecting a fetal heartbeat,
5 including the date, time, and results of the test.
6 Section 5. (a) Except as provided by Sections 6 and
7 7, a physician may not knowingly perform or induce an abortion
8 on a pregnant woman if the physician detected a fetal
9 heartbeat for the unborn child as required by Section 4 or
10 failed to perform a test to detect a fetal heartbeat.
11 (b) A physician does not violate this section if the
12 physician performed a test for a fetal heartbeat as required
13 by Section 4 and did not detect a fetal heartbeat.
14 (c) This section does not affect any of the
15 following:
16 (1) Any provision of Title 26 that restricts or
17 regulates an abortion by a particular method or during a
18 particular stage of pregnancy.
19 (2) Any other provision of state law that regulates
20 or prohibits abortion.
21 (3) Physician performance of dilation and curettage
22 and similar procedures to remove remaining dead tissue or
23 other products of an abortion after the abortion was
24 performed.
25 (4) Physician treatment of patients and performance
26 of procedures associated with in vitro fertilization.
Page 6 1 Section 6. (a) Sections 4 and 5 do not apply if a
2 physician believes a medical emergency exists that prevents
3 compliance with this act.
4 (b) A physician who performs or induces an abortion
5 under circumstances described by subsection (a) shall make
6 written notations in the pregnant woman's medical record of
7 both of the following:
8 (1) The physician's belief that a medical emergency
9 necessitated the abortion.
10 (2) The medical condition of the pregnant woman that
11 prevented compliance with this act.
12 (c) A physician performing or inducing an abortion
13 under this section shall maintain in the physician's practice
14 records a copy of the notations made under subsection (b).
15 Section 7. Sections 4 and 5 do not apply to an
16 abortion performed at the behest of federal agencies,
17 contractors, or employees that are carrying out duties under
18 federal law, if a prohibition on that abortion would violate
19 the doctrines of preemption or intergovernmental immunity.
20 Section 8. (a) This act does not create or recognize
21 a right to abortion before a fetal heartbeat is detected.
22 (b) This act may not be construed to do either of
23 the following:
24 (1) Authorize the initiation of a cause of action
25 against or the prosecution of a woman on whom an abortion is
26 performed or induced or attempted to be performed or induced
27 in violation of this act.
Page 7 1 (2) Wholly or partly repeal, either expressly or by
2 implication, any other law that regulates or prohibits
3 abortion.
4 Section 9. Notwithstanding any other law, the
5 requirements of this act shall be enforced exclusively through
6 the private civil actions described in Section 10. No direct
7 or indirect enforcement of this act may be taken or threatened
8 by this state, a political subdivision, a district attorney,
9 or a public official or public employee of this state or a
10 political subdivision against any individual or entity, in any
11 manner whatsoever, except as provided in Section 10, and no
12 violation of this act may be used to justify or trigger the
13 enforcement of any other law or any type of adverse
14 consequence under any other law, except as provided in Section
15 10, provided, that this section does not preclude enforcement
16 of any other law or regulation against conduct that is
17 independently prohibited by the other law or regulation.
18 Section 10. (a) Any person, other than this state, a
19 political subdivision of this state, and any public official
20 or public employee of this state or political subdivision of
21 this state, may bring a civil action against any person who
22 does any of the following:
23 (1) Performs or induces an abortion in violation of
24 this act.
25 (2) Knowingly engages in conduct that aids or abets
26 the performance or inducement of an abortion, including paying
27 for or reimbursing the costs of an abortion through insurance
Page 8 1 or otherwise, if the abortion is performed or induced in
2 violation of this act, regardless of whether the person knew
3 or should have known that the abortion would be performed or
4 induced in violation of this act.
5 (3) Intends to engage in the conduct described by
6 subdivision (1) or (2).
7 (b) If a claimant prevails in an action brought
8 under this section, the court shall award all of the
9 following:
10 (1) Injunctive relief sufficient to prevent the
11 defendant from violating this act or engaging in acts that aid
12 or abet violations of this act.
13 (2) Statutory damages in an amount of not less than
14 ten thousand dollars ($10,000) for each abortion that the
15 defendant performed or induced in violation of this act and
16 for each abortion performed or induced in violation of this
17 act that the defendant aided or abetted.
18 (3) Nominal and compensatory damages if the
19 plaintiff has suffered harm from the defendant's conduct,
20 including, but not limited to, loss of consortium and
21 emotional distress.
22 (4) Court costs and attorney fees.
23 (c) Notwithstanding subsection (b), a court may not
24 award relief under subdivision (b)(2) or (4) in response to a
25 violation of subdivision (a)(1) or (2) if the defendant
26 demonstrates that the defendant previously paid or has been
27 ordered to pay the full amount of statutory damages under
Page 9 1 subdivision (b)(2) in a previous action for that particular
2 abortion performed or induced in violation of this act or for
3 the particular conduct that aided or abetted an abortion
4 performed or induced in violation of this act.
5 (d) Notwithstanding Title 6, Code of Alabama 1975,
6 or any other law, a person may bring an action under this
7 section not later than six years from the date the cause of
8 action accrues.
9 (e) Notwithstanding any other law, the following are
10 not a defense to an action brought under this section:
11 (1) Ignorance or mistake of law.
12 (2) A defendant's belief that the requirements of
13 this act are unconstitutional or were unconstitutional.
14 (3) A defendant's reliance on any court decision
15 that has been overruled on appeal or by a subsequent court,
16 even if that court decision had not been overruled when the
17 defendant violated subsection (a).
18 (4) A defendant's reliance on any state or federal
19 court decision that is not binding on the court in which the
20 action has been brought.
21 (5) Non-mutual issue preclusion or non-mutual claim
22 preclusion.
23 (6) The consent of the unborn child's mother to the
24 abortion.
25 (7) Any claim that the enforcement of this act or
26 the imposition of civil liability against the defendant will
Page 10 1 violate the constitutional rights of third parties, except as
2 provided by Section 11.
3 (f) It is an affirmative defense to an action under
4 this section if a person sued under subdivision (a)(2) or (3)
5 reasonably believed, after conducting a reasonable
6 investigation, that the persons involved with performing or
7 facilitating the abortion would comply with every requirement
8 and provision of this act.
9 (g) The defendant has the burden of proving an
10 affirmative defense under subsection (f) by a preponderance of
11 the evidence.
12 (h) This section may not be construed to impose
13 liability on any speech or conduct protected by the First
14 Amendment of the United States Constitution, as made
15 applicable to the states through the United States Supreme
16 Court's interpretation of the Fourteenth Amendment of the
17 United States Constitution, or by Section 4, Article 1,
18 Constitution of Alabama of 1901.
19 (i)(1) Notwithstanding any other law, neither this
20 state, nor its political subdivisions, nor any public official
21 or employee of this state or its political subdivisions may do
22 any of the following:
23 a. Act in concert or participation with anyone who
24 brings suit under this section.
25 b. Establish or attempt to establish any type of
26 agency or fiduciary relationship with a plaintiff who brings
27 suit under this section.
Page 11 1 c. Make any attempt to control or influence a
2 plaintiff's decision to bring suit under this section or the
3 plaintiff's conduct of the litigation.
4 d. Intervene in any action brought under this
5 section.
6 (2) This subsection does not prohibit an individual
7 or entity described by this subsection from filing an amicus
8 curiae brief in the action, so long as that person or entity
9 does not act in concert or participation with the plaintiff or
10 plaintiffs who sue under this section or violate any provision
11 of this subsection.
12 (j) Notwithstanding any other law, a court may not
13 award costs or attorney's fees to a defendant in an action
14 brought under this section.
15 (k) Notwithstanding any other law, a civil action
16 under this section may not be brought in any of the following
17 ways:
18 (1) Against the woman upon whom an abortion was
19 performed or induced or attempted to be performed or induced
20 in violation of this act, or against a pregnant woman who
21 intends or seeks to abort her unborn child in violation of
22 this act.
23 (2) Against any person or entity that performs, aids
24 or abets, or attempts to perform or aid or abet an abortion at
25 the behest of federal agencies, contractors, or employees that
26 are carrying out duties under federal law, if a prohibition on
Page 12 1 that abortion would violate the doctrines of preemption or
2 intergovernmental immunity.
3 (3) Against any common carrier that transports a
4 pregnant woman to an abortion provider, if the common carrier
5 is unaware that the woman intends to abort her unborn child.
6 (4) By any person who impregnated the abortion
7 patient through an act of rape, sexual abuse, incest, or any
8 other sex offense referenced in Section 15-20A-5, Code of
9 Alabama 1975.
10 Section 11. (a) A defendant against whom an action
11 is brought under Section 10 may assert an affirmative defense
12 to liability under this section if each of the following
13 conditions is met:
14 (1) The defendant has standing to assert the rights
15 of a woman or group of women seeking an abortion under the
16 tests for third-party standing established by the Supreme
17 Court of the United States.
18 (2) The imposition of civil liability on the
19 defendant will result in an undue burden on a woman or group
20 of women seeking an abortion.
21 (b) The defendant shall bear the burden of proving
22 the affirmative defense in subsection (a) by a preponderance
23 of the evidence.
24 (c) The affirmative defense under subsection (a) is
25 not available if the Supreme Court of the United States
26 overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned
27 Parenthood v. Casey, 505 U.S. 833 (1992), regardless of
Page 13 1 whether the conduct on which the cause of action is based
2 under Section 10 occurred before the Supreme Court overruled
3 either of those decisions.
4 (d) Nothing in this section or act shall limit or
5 preclude a defendant from asserting the defendant's personal
6 constitutional rights as a defense to liability under Section
7 10, and a court may not award relief under Section 10 if the
8 conduct for which the defendant has been sued was an exercise
9 of state or federal constitutional rights that personally
10 belong to the defendant.
11 (e) Nothing in this section or act shall limit or
12 preclude a defendant from asserting the unconstitutionality of
13 any provision or application of this act as a defense to
14 liability under Section 10.
15 Section 12. (a) Notwithstanding any other law, the
16 state shall have sovereign immunity, each of its political
17 subdivisions shall have governmental immunity, and each
18 officer and employee of this state or a political subdivision
19 shall have official immunity in any action, claim,
20 counterclaim, or any type of legal or equitable action that
21 challenges the validity of any provision or application of
22 this act, on constitutional grounds or otherwise, or that
23 seeks to prevent or enjoin the state, its political
24 subdivisions, or any officer or employee of this state or a
25 political subdivision from enforcing any provision or
26 application of this act, unless that immunity has been
Page 14 1 abrogated or preempted by federal law in a manner consistent
2 with the Constitution of the United States.
3 (b) Notwithstanding any other law, no provision of
4 state law may be construed to waive or abrogate an immunity
5 described in subsection (a) unless it expressly waives or
6 abrogates immunity with specific reference to this section.
7 (c) Notwithstanding any other law, no attorney
8 representing the state, its political subdivisions, or any
9 officer or employee of this state or a political subdivision
10 is authorized or permitted to waive an immunity described in
11 subsection (a) or take any action that would result in a
12 waiver of that immunity.
13 (d) Notwithstanding any other law, no court of this
14 state shall have jurisdiction to consider any action, claim,
15 or counterclaim that seeks declaratory or injunctive relief to
16 prevent the state, its political subdivisions, any officer or
17 employee of this state or a political subdivision, or any
18 person from enforcing any provision or application of this
19 act, or from filing a civil action under this act.
20 (e) Nothing in this section or act shall be
21 construed to prevent a litigant from asserting the invalidity
22 or unconstitutionality of any provision or application of this
23 act as a defense to any action, claim, or counterclaim brought
24 against that litigant.
25 Section 13. (a) Notwithstanding any other law, any
26 person, including an entity, attorney, or law firm, who seeks
27 declaratory or injunctive relief to prevent this state, a
Page 15 1 political subdivision, any governmental entity or public
2 official in this state, or any person in this state from
3 enforcing any state law, ordinance, rule, or any other type of
4 law that regulates or restricts abortion or that limits
5 taxpayer funding for individuals or entities that perform or
6 promote abortions, in any state or federal court, or that
7 represents any litigant seeking such relief in any state or
8 federal court, is jointly and severally liable to pay the
9 court costs and attorney fees of the prevailing party.
10 (b) For purposes of this section, a party is
11 considered a prevailing party with respect to a particular
12 claim or cause of action if a state or federal court does
13 either of the following:
14 (1) Dismisses any claim or cause of action brought
15 against the party that seeks the declaratory or injunctive
16 relief described by subsection (a), regardless of the reason
17 for the dismissal.
18 (2) Enters judgment in the party's favor on any such
19 claim or cause of action.
20 (c) Regardless of whether a prevailing party sought
21 to recover costs or attorney fees in the underlying action, a
22 prevailing party under this section may bring a civil action
23 to recover costs and attorney fees against a person, including
24 an entity, attorney, or law firm, that sought declaratory or
25 injunctive relief described by subsection (a) not later than
26 the third anniversary of the date on which, as applicable,
27 either of the following occurs:
Page 16 1 (1) The dismissal or judgment described by
2 subsection (b) becomes final on the conclusion of appellate
3 review.
4 (2) The time for seeking appellate review expires.
5 (d) It is not a defense to an action brought under
6 subsection (c) that any of the following occur:
7 (1) A prevailing party under this section failed to
8 seek recovery of costs or attorney fees in the underlying
9 action.
10 (2) The court in the underlying action declined to
11 recognize or enforce the requirements of this section.
12 (3) The court in the underlying action held that any
13 provisions of this section are invalid, unconstitutional, or
14 preempted by federal law, notwithstanding the doctrines of
15 issue or claim preclusion.
16 Section 14. (a) A state law that regulates or
17 prohibits abortion may not be construed to repeal any other
18 law that regulates or prohibits abortion, either wholly or
19 partly, unless the act of the Legislature repealing the law
20 explicitly states that it is repealing the other law.
21 (b) A state law may not be construed to restrict a
22 political subdivision from regulating or prohibiting abortion
23 unless the law explicitly states that political subdivisions
24 are prohibited from regulating or prohibiting abortion in the
25 manner described by the state law.
26 (c)(1) Every state law that regulates or prohibits
27 abortion is severable in each of its applications to every
Page 17 1 person and circumstance. If any law that regulates or
2 prohibits abortion is found by any court to be
3 unconstitutional, either on its face or as applied, then all
4 applications of that law that do not violate federal law, the
5 United States Constitution, and the Constitution of Alabama of
6 1901, or impose an undue burden on women seeking abortions,
7 shall be severed from the unconstitutional applications and
8 shall remain enforceable, notwithstanding any other law.
9 (2) If any state or federal court disregards the
10 severability requirement of this subsection, or declares or
11 finds any provision of state law that regulates or prohibits
12 abortion to be facially unconstitutional, when there are
13 discrete applications of that provision that can be enforced
14 against a person, group of persons, or circumstances without
15 violating federal law, the United States Constitution, and the
16 Constitution of Alabama of 1901, or imposing an undue burden
17 on women seeking abortions, then that provision shall be
18 interpreted, as a matter of state law, as if the Legislature
19 had enacted a provision limited to the persons, group of
20 persons, or circumstances for which the provision's
21 application will not violate federal law, the federal or state
22 constitutions, or impose an undue burden on women seeking
23 abortions, and every court shall adopt this saving
24 construction of that provision until the court ruling that
25 pronounced the provision facially unconstitutional is vacated
26 or overruled.
Page 18 1 Section 15. The provisions of this act are
2 severable. If any part of this act is declared invalid or
3 unconstitutional, that declaration shall not affect the part
4 which remains.
5 Section 16. This act shall become effective on the
6 first day of the third month following its passage and
7 approval by the Governor, or its otherwise becoming law.
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