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Arkansas Senate Bill SR13

Arkansas 2022 Regular Session

Arkansas Senate Bill SR13 Compare Versions

Only one version of the bill is available at this time.
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44 State of Arkansas 1
55 93rd General Assembly 2
66 Fiscal Session, 2022 SR 13 3
77 4
88 By: Senator Rapert 5
99 6
1010 SENATE RESOLUTION 7
1111 TO AUTHORIZE THE INT RODUCTION OF A NONAP PROPRIATION 8
1212 BILL TO ENACT THE AR KANSAS HUMAN HEARTBE AT AND HUMAN 9
1313 LIFE CIVIL JUSTICE A CT, REGULATE ABORTIO N IN 10
1414 ARKANSAS, AND SAVE T HE LIVES OF UNBORN C HILDREN AND 11
1515 PROTECT THE HEALTH O F WOMEN THROUGH CIVI L LIABILITY 12
1616 FOR VIOLATIONS OF ABOR TION LAWS. 13
1717 14
1818 15
1919 Subtitle 16
2020 TO AUTHORIZE THE INTRODUCTION OF A 17
2121 NONAPPROPRIATION BILL TO ENACT THE 18
2222 ARKANSAS HUMAN HEARTBEAT AND HUMAN LIFE 19
2323 CIVIL JUSTICE ACT TO SAVE THE LIVES OF 20
2424 UNBORN CHILDREN AND PROTECT THE HEALTH OF 21
2525 WOMEN THROUGH CIVIL LIABILITY. 22
2626 23
2727 24
2828 BE IT RESOLVED BY THE SENATE OF THE NINETY -THIRD GENERAL ASSEMBLY OF THE 25
2929 STATE OF ARKANSAS: 26
3030 27
3131 THAT Representative Bentley is authorized to introduce a bill which as 28
3232 introduced will read substantially as follows: 29
3333 30
3434 "Title 31
3535 AN ACT TO CREATE THE ARKANSAS HUMAN HEARTBEAT AND HUMAN LIFE CIVIL JUSTICE 32
3636 ACT; TO REGULATE ABORTION IN ARKANSAS; TO SAVE THE LIVES OF UNBORN CHILDREN 33
3737 AND PROTECT THE HEALTH OF WOMEN THROUGH CIVIL LIABILITY FOR VIOLATIONS OF 34
3838 ABORTION LAWS; TO DECLARE AN EM ERGENCY; AND FOR OTHER PURPOSES. 35
3939 36 SR13
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4444 Subtitle 1
4545 TO CREATE THE ARKANSAS HUMAN HEARTBEAT AND HUMAN LIFE CIVIL JUSTICE ACT; TO 2
4646 SAVE THE LIVES OF UNBORN CHILDREN AND PROTECT THE HEALTH OF WOMEN THROUGH 3
4747 CIVIL LIABILITY; AND TO DECLARE AN EMERGENCY. 4
4848 5
4949 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 6
5050 7
5151 SECTION 1. Arkansas Code Title 20, Chapter 16, is amended to add an 8
5252 additional subchapter to read as follows: 9
5353 Subchapter 26 — Arkansas Human Heartbeat and Human Life Civil Justice Act 10
5454 11
5555 20-16-2601. Title. 12
5656 This subchapter shall be known and may be cited as the "Arkansas Human 13
5757 Heartbeat and Human Life Civil Justice Act". 14
5858 15
5959 20-16-2602. Legislative findings. 16
6060 (a) The General Assembly finds that: 17
6161 (1) It is time for the United States Supreme Court to redress 18
6262 and correct the grave injustice against humanity which is being perpetuated 19
6363 by its decisions in Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. 20
6464 Casey; 21
6565 (2) The United States Supreme Court committed a grave injustice 22
6666 against humanity in t he Dred Scott decision by denying personhood to a class 23
6767 of human beings, African Americans; 24
6868 (3) The United States Supreme Court also committed a grave 25
6969 injustice against humanity by upholding the “separate but equal” doctrine in 26
7070 Plessy v. Ferguson, which withdrew legal protection from a class of human 27
7171 beings who were persons under the United States Constitution, African 28
7272 Americans; 29
7373 (4) An injustice against humanity occurs when a government 30
7474 withdraws legal protection from a class of human beings, resulti ng in severe 31
7575 deprivation of their rights, up to and including death; 32
7676 (5) In Brown v. Board of Education, the United States Supreme 33
7777 Court corrected its own grave injustice against humanity created in Plessy v. 34
7878 Ferguson by overruling and abolishing the fifty-eight-year-old “separate but 35
7979 equal” doctrine, thus giving equal legal rights to African Americans; 36 SR13
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8484 (6) Under the doctrine of stare decisis, the three (3) abortion 1
8585 cases mentioned in subdivision (a)(1) of this section meet the test for when 2
8686 a case should be overturned by the United States Supreme Court because of 3
8787 significant changes in facts or laws, including without limitation the 4
8888 following: 5
8989 (A) The cases have not been accepted by scholars, judges, 6
9090 and the American people, evidenced by the fac t that these cases are still the 7
9191 most intensely controversial cases in American history and at the present 8
9292 time; 9
9393 (B) New scientific advances have demonstrated since 1973 10
9494 that life begins at the moment of conception and that the child in a woman's 11
9595 womb is a human being; 12
9696 (C) Scientific evidence and personal testimonies document 13
9797 the massive harm that abortion causes to women; 14
9898 (D) The laws in all fifty (50) states have now changed 15
9999 through “Safe Haven” laws to eliminate all burdens of child care from women 16
100100 who do not want to care for a child; and 17
101101 (E) Public attitudes favoring adoption have created a 18
102102 culture of adoption in the United States, with many families waiting long 19
103103 periods of time to adopt newborn infants; 20
104104 (7) Before the United States Su preme Court decision of Roe v. 21
105105 Wade, Arkansas had already enacted prohibitions on abortions under § 5 -61-101 22
106106 et seq., and authorized the refusal to perform, participate, consent, or 23
107107 submit to an abortion under § 20 -16-601; 24
108108 (8) Arkansas Constitution, Ame ndment 68, states that "[t]he 25
109109 policy of Arkansas is to protect the life of every unborn child from 26
110110 conception until birth" and that "no public funds will be used to pay for any 27
111111 abortion, except to save the mother's life"; 28
112112 (9) Arkansas passed the Arkansa s Human Heartbeat Protection Act, 29
113113 § 20-16-1301 et seq., in 2013, which shows the will of the Arkansas people to 30
114114 save the lives of unborn children; 31
115115 (10) Arkansas has continued to pass additional legislation in 32
116116 2015, 2017, 2019, and 2021 that further show s the will of the Arkansas people 33
117117 to save the lives of unborn children; 34
118118 (11)(A) Since the decision of Roe v. Wade, approximately sixty -35
119119 two million five hundred two thousand nine hundred four (62,502,904) 36 SR13
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124124 abortions have ended the lives of unborn children . 1
125125 (B) In 2015, six hundred thirty -eight thousand one hundred 2
126126 sixty-nine (638,169) legal induced abortions were reported to the Centers for 3
127127 Disease Control and Prevention from forty -nine (49) reporting areas in the 4
128128 United States. 5
129129 (C) The Department of Health reports that two thousand 6
130130 nine hundred sixty-three (2,963) abortions took place in Arkansas during 7
131131 2019, including abortions performed on out -of-state residents; 8
132132 (12) Arkansas has a compelling interest from the outset of a 9
133133 woman's pregnancy in protecting the health of the woman and life of an unborn 10
134134 child; and 11
135135 (13) The State of Arkansas urgently pleads with the United 12
136136 States Supreme Court to do the right thing, as they did in one of the United 13
137137 States Supreme Court's greatest cases, Brown v. Board of Education, which 14
138138 overturned a fifty-eight-year-old precedent of the United States, and 15
139139 reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned 16
140140 Parenthood v. Casey. 17
141141 (b) It is the intent of this subchapter to ensure that abort ion in 18
142142 Arkansas is abolished and to establish civil liability for the violation of 19
143143 abortion laws in order to protect the lives of unborn children. 20
144144 21
145145 20-16-2603. Definitions. 22
146146 As used in this subchapter: 23
147147 (1)(A) “Abortion” means the act of using, prescri bing, 24
148148 administering, procuring, or selling of any instrument, medicine, drug, or 25
149149 any other substance, device, or means with the purpose to terminate the 26
150150 pregnancy of a woman, with knowledge that the termination by any of those 27
151151 means will with reasonable li kelihood cause the death of an unborn child. 28
152152 (B) An act under subdivision (1)(A) of this section is not 29
153153 an abortion if the act is performed with the purpose to: 30
154154 (i) Save the life or preserve the health of the 31
155155 unborn child; 32
156156 (ii) Remove a dead unborn child caused by 33
157157 spontaneous abortion; or 34
158158 (iii) Remove an ectopic pregnancy; 35
159159 (2) "Entity" means a corporation, partnership, limited liability 36 SR13
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164164 company, association, joint venture, public corporation, any other legal or 1
165165 commercial entity, fiduc iary, or any organized group of persons whether 2
166166 incorporated or not, including without limitation a church or religious 3
167167 organization; 4
168168 (3) “Fertilization” means the fusion of a human spermatozoon 5
169169 with a human ovum; 6
170170 (4) “Medical emergency” means a cond ition in which an abortion 7
171171 is necessary to preserve the life of a pregnant woman whose life is 8
172172 endangered by a physical disorder, physical illness, or physical injury, 9
173173 including a life-endangering physical condition caused by or arising from the 10
174174 pregnancy itself; and 11
175175 (5) “Unborn child” means an individual organism of the species 12
176176 Homo sapiens from fertilization until live birth. 13
177177 14
178178 20-16-2604. Prohibition. 15
179179 (a) A person or entity shall not purposely perform or attempt to 16
180180 perform an abortion except to save the life of a pregnant woman in a medical 17
181181 emergency. 18
182182 (b) This section does not: 19
183183 (1) Authorize the charging or conviction of a woman with any 20
184184 criminal offense in the death of her own unborn child; 21
185185 (2) Permit a civil liability to be assessed aga inst a woman upon 22
186186 whom an abortion is performed in violation of this subchapter; or 23
187187 (3) Prohibit the sale, use, prescription, or administration of a 24
188188 contraceptive measure, drug, or chemical if the contraceptive measure, drug, 25
189189 or chemical is administered before the time when a pregnancy could be 26
190190 determined through conventional medical testing and if the contraceptive 27
191191 measure, drug, or chemical is sold, used, prescribed, or administered in 28
192192 accordance with manufacturer instructions. 29
193193 (c) It is an affirmative defense under this section if a licensed 30
194194 physician provides medical treatment to a pregnant woman that results in the 31
195195 accidental or unintentional physical injury or death to the unborn child. 32
196196 33
197197 20-16-2605. Exemption for preemption and intergov ernmental immunity. 34
198198 The prohibition in § 20 -16-2604 shall not apply to an abortion 35
199199 performed at the behest of federal agencies, contractors, or employees that 36 SR13
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204204 are carrying out duties under federal law, if the prohibition on the abortion 1
205205 would violate the doctrines of preemption or intergovernmental immunity. 2
206206 3
207207 20-16-2606. Limitation on public enforcement. 4
208208 (a) Notwithstanding any other law, the requirements of this subchapter 5
209209 shall be enforced exclusively through the private civil actions described in 6
210210 § 20-16-2607. 7
211211 (b) A direct or indirect enforcement of this subchapter may not be 8
212212 taken or threatened by the state, a political subdivision, a district or 9
213213 county attorney, or an executive or administrative officer or employee of 10
214214 this state or a political su bdivision against any person or entity. 11
215215 (c) A violation of this subchapter may not be used to justify or 12
216216 trigger the enforcement of any other law, except as provided in § 20 -16-2607. 13
217217 14
218218 20-16-2607. Civil liability. 15
219219 (a) Any person or entity, other than the state, a political 16
220220 subdivision of the state, or an officer or employee of a state or local 17
221221 governmental entity in this state, may bring a civil action against any 18
222222 person or entity who: 19
223223 (1) Performs or induces an abortion in violation of this 20
224224 subchapter; 21
225225 (2) Knowingly engages in conduct that aids or abets the 22
226226 performance or inducement of an abortion, including paying for or reimbursing 23
227227 the costs of an abortion through insurance or otherwise, if the abortion is 24
228228 performed or induced in violation of t his subchapter, regardless of whether 25
229229 the person or entity knew or should have known that the abortion would be 26
230230 performed or induced in violation of this subchapter; or 27
231231 (3) Intends to engage in the conduct described in subdivision 28
232232 (a)(1) of this section or subdivision (a)(2) of this section. 29
233233 (b) If a claimant prevails in an action brought under this section, 30
234234 the court shall award: 31
235235 (1) Injunctive relief sufficient to prevent the defendant from 32
236236 violating this subchapter or engaging in acts that aid or abet violations of 33
237237 this subchapter; 34
238238 (2) Statutory damages in an amount of not less than ten thousand 35
239239 dollars ($10,000) for each abortion that the defendant performed or induced 36 SR13
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244244 in violation of this subchapter, and for each abortion performed or induced 1
245245 or aided or abetted in violation of this subchapter; 2
246246 (3) Nominal and compensatory damages if the plaintiff has 3
247247 suffered harm from the defendant's conduct, including without limitation loss 4
248248 of consortium and emotional distress; and 5
249249 (4) Costs and attorney's fees. 6
250250 (c) Notwithstanding subsection (b) of this section, a court may not 7
251251 award relief under this section in response to a violation of subdivision 8
252252 (a)(1) of this section or subdivision (a)(2) of this section if the defendant 9
253253 demonstrates that the defendant previously paid the full amount of statutory 10
254254 damages under subdivision (b)(2) of this section in a previous action for 11
255255 that particular violation of this subchapter, or for the particular conduct 12
256256 that aided or abetted an abortion performed or ind uced in violation of this 13
257257 subchapter. 14
258258 (d) Notwithstanding any other law, a person or entity may bring an 15
259259 action under this section not later than the third anniversary after the date 16
260260 the cause of action accrues. 17
261261 (e) Notwithstanding any other law, the f ollowing are not a defense to 18
262262 an action brought under this section: 19
263263 (1) Ignorance or mistake of law; 20
264264 (2) A defendant's belief that the requirements or provisions of 21
265265 this subchapter are or were unconstitutional; 22
266266 (3) A defendant's reliance on any co urt decision that has been 23
267267 overruled on appeal or by a subsequent court, even if that court decision has 24
268268 not been overruled when the defendant violated this subchapter; 25
269269 (4) A defendant's reliance on any state or federal court 26
270270 decision that is not bindin g on the court in which the action has been 27
271271 brought; 28
272272 (5) Nonmutual issue preclusion or nonmutual claim preclusion; 29
273273 (6) The consent of the unborn child's mother to the abortion; or 30
274274 (7) Any claim that the enforcement of this subchapter or the 31
275275 imposition of civil liability against the defendant will violate the 32
276276 constitutional rights of third parties, except as provided by § 20 -16-2608. 33
277277 (f)(1) It is an affirmative defense if: 34
278278 (A) A person or entity sued under subdivision (a)(2) of 35
279279 this section reasonably believed, after conducting a reasonable 36 SR13
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284284 investigation, that the person or entity performing or inducing the abortion 1
285285 had complied or would comply with every requirement and provision of this 2
286286 subchapter; or 3
287287 (B) A person or entity sued under sub division (a)(3) of 4
288288 this section reasonably believed, after conducting a reasonable 5
289289 investigation, that the person or entity performing or inducing the abortion 6
290290 would comply with every requirement and provision of this subchapter. 7
291291 (2) The defendant has t he burden of proving an affirmative 8
292292 defense under subdivision (f)(1)(A) of this section or subdivision (f)(1)(B) 9
293293 of this section by a preponderance of the evidence. 10
294294 (g) This section does not impose liability on any speech or conduct 11
295295 protected by the Firs t Amendment of the United States Constitution, as made 12
296296 applicable to the states through the United States Supreme Court's 13
297297 interpretation of the Fourteenth Amendment of the United States Constitution, 14
298298 or by Arkansas Constitution, Article 2, § 6. 15
299299 (h)(1) Notwithstanding any other law, neither the state, nor any of 16
300300 its political subdivisions, nor any district or county attorney, nor any 17
301301 executive or administrative officer or employee of this state or a political 18
302302 subdivision may act in concert or participation with anyone who brings suit 19
303303 under this section, nor may they intervene in any action brought under this 20
304304 section. 21
305305 (2) This subsection does not prohibit a person or entity 22
306306 described in subsection (h)(1) of this section from filing an amicus curiae 23
307307 brief in the action if that person or entity does not act in concert or 24
308308 participate with the plaintiff or plaintiffs who sue under this section. 25
309309 (i) Notwithstanding any other law, including § 16 -22-309, a court may 26
310310 not award costs or attorney's fees under the Arkansas Rules of Civil 27
311311 Procedure or any other law to a defendant in an action brought under this 28
312312 section. 29
313313 (j) Notwithstanding any other law, a civil action under this section 30
314314 may not be brought by a person who impregnated the woman who obtained an 31
315315 abortion through an act of rape, sexual assault, incest, or any other act 32
316316 prohibited under Title 5, Chapter 14. 33
317317 (k) Notwithstanding any other law, a civil action under this section 34
318318 may not be brought against a person or entity that performed or aided or 35
319319 abetted an abortion at the behest of federal agencies, contractors, or 36 SR13
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324324 employees that are carrying out duties under federal law if the prohibition 1
325325 on the abortion would violate the doctrines of preemption or 2
326326 intergovernmental immunity. 3
327327 (l) Notwithstanding an y other law, a civil action under this 4
328328 section may not be brought against a common carrier who transports a pregnant 5
329329 woman to an abortion provider if the common carrier is unaware that the woman 6
330330 intends to abort her unborn child. 7
331331 8
332332 20-16-2608. Civil liability — Defenses. 9
333333 (a) A defendant against whom an action is brought under § 20 -16-2607 10
334334 may assert an affirmative defense to liability under this section if: 11
335335 (1) The defendant has standing to assert the rights of a woman 12
336336 or a group of women seeking to o btain an abortion under the tests for third -13
337337 party standing established by the United States Supreme Court; and 14
338338 (2) The imposition of civil liability on the defendant will 15
339339 result in an undue burden on that abortion -seeking woman or group of 16
340340 abortion-seeking women. 17
341341 (b) The defendant shall bear the burden of proving the affirmative 18
342342 defense in subsection (a) of this section by a preponderance of the evidence. 19
343343 (c) The affirmative defense under subsection (a) of this section is 20
344344 not available if the United States Supreme Court overrules Roe v. Wade, 410 21
345345 U.S. 113 (1973), or Planned Parenthood v. Casey, 505 U.S. 833 (1992), 22
346346 regardless of whether the conduct on which the cause of action is based under 23
347347 § 20-16-2607 occurred before the United States Supreme Court overruled either 24
348348 of those decisions. 25
349349 (d)(1) This section or subchapter does not in any way limit or 26
350350 preclude a defendant from asserting the defendant’s personal constitutional 27
351351 rights as a defense to liability under § 20 -16-2607. 28
352352 (2) A court may not award relief under § 20 -16-2607 if the 29
353353 conduct for which the defendant has been sued was an exercise of state or 30
354354 federal constitutional rights that personally belong to the defendant. 31
355355 (e) This section or subchapter does not in any way limit or preclude a 32
356356 defendant from asserting the unconstitutionality of any provision of Arkansas 33
357357 law as a defense to liability under this subchapter. 34
358358 35
359359 20-16-2609. Civil liability — Venue. 36 SR13
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364364 (a) Notwithstanding any other law, a civil action brought under § 20 -1
365365 16-2607 shall be brought in: 2
366366 (1) The county in which all or a substantial part of the events 3
367367 or omissions giving rise to the claim occurred; 4
368368 (2) The county of residence for any one (1) of the natural 5
369369 person defendants at the time the cause of action accrued; 6
370370 (3) The county of the principal office in this state of any one 7
371371 (1) of the defendants that is not a natural person; or 8
372372 (4) The county of residence for the claimant if the claimant is 9
373373 a natural person residing in this state. 10
374374 (b) If a civil action is bro ught under § 20-16-2607 in any one (1) of 11
375375 the venues described in subsection (a) of this section, the action shall not 12
376376 be transferred to a different venue without the written consent of all 13
377377 parties. 14
378378 15
379379 20-16-2610. Sovereign, governmental, and official immu nity preserved — 16
380380 Limits on jurisdiction. 17
381381 (a) Notwithstanding any other law, the State of Arkansas shall have 18
382382 sovereign immunity, each of its political subdivisions shall have 19
383383 governmental immunity, and each officer and employee of this state or a 20
384384 political subdivision shall have official immunity in any action, claim, or 21
385385 counterclaim or any type of legal or equitable action that challenges the 22
386386 validity of any provision or application of this subchapter, on 23
387387 constitutional grounds or otherwise, or that seek s to prevent or enjoin the 24
388388 State of Arkansas, its political subdivisions, or any officer or employee of 25
389389 this state or a political subdivision from enforcing any provision or 26
390390 application of this subchapter, unless that immunity has been abrogated or 27
391391 preempted by federal law in a manner consistent with the United States 28
392392 Constitution. 29
393393 (b) Notwithstanding any other law, a provision of state law may not be 30
394394 construed to waive or abrogate an immunity described by subsection (a) of 31
395395 this section unless it expressl y waives immunity by specific reference to 32
396396 this section. 33
397397 (c) Notwithstanding any other law, an attorney representing the state, 34
398398 a political subdivision of the state, or any officer or employee of the state 35
399399 or a political subdivision of the state is not a uthorized or permitted to 36 SR13
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404404 waive an immunity described in this section or take any action that would 1
405405 result in a waiver of the immunity described in this section. 2
406406 (d) Notwithstanding any other law, a court of this state shall not 3
407407 have jurisdiction to cons ider any action, claim, or counterclaim that seeks 4
408408 declaratory or injunctive relief to prevent the state, a political 5
409409 subdivision of the state, any officer or employee of the state or a political 6
410410 subdivision of the state, or any person or entity from enfor cing any 7
411411 provision or application of this subchapter or from filing a civil action 8
412412 under this subchapter. 9
413413 (e) This section or subchapter shall not be construed to prevent a 10
414414 litigant from asserting the invalidity or unconstitutionality of any 11
415415 provision or application of this subchapter as a defense to any action, 12
416416 claim, or counterclaim brought against the litigant. 13
417417 14
418418 20-16-2611. Award of attorney's fees in actions challenging abortion 15
419419 laws. 16
420420 (a) Notwithstanding any other law, any person, including an ent ity, 17
421421 attorney, or law firm, that seeks declaratory or injunctive relief to prevent 18
422422 this state, a political subdivision of this state, any governmental entity or 19
423423 public official in this state, or any person or entity in this state from 20
424424 enforcing any statute , ordinance, rule, regulation, or any other type of law 21
425425 that regulates or restricts abortion or that limits taxpayer funding for 22
426426 individuals or entities that perform or promote abortions, in any state or 23
427427 federal court, or that represents any litigant seeki ng such relief in any 24
428428 state or federal court, is jointly and severally liable to pay the costs and 25
429429 attorney's fees of the prevailing party. 26
430430 (b) For purposes of this section, a party is considered a prevailing 27
431431 party if a state or federal court: 28
432432 (1) Dismisses any claim or cause of action brought against the 29
433433 party that seeks the declaratory or injunctive relief described in subsection 30
434434 (a) of this section, regardless of the reason for the dismissal; or 31
435435 (2) Enters judgment in the party's favor on any suc h claim or 32
436436 cause of action. 33
437437 (c) Regardless of whether a prevailing party sought to recover costs 34
438438 or attorney's fees in the underlying action, a prevailing party under this 35
439439 section may bring a civil action to recover costs and attorney's fees against 36 SR13
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444444 a person, including an entity, attorney, or law firm, that sought declaratory 1
445445 or injunctive relief described in subsection (a) of this section not later 2
446446 than three (3) years after the date on which, as applicable: 3
447447 (1) The dismissal or judgment described in subsection (b) of 4
448448 this section becomes final on the conclusion of appellate review; or 5
449449 (2) The time for seeking appellate review expires. 6
450450 (d) It is not a defense to an action brought under subsection (c) of 7
451451 this section that: 8
452452 (1) A prevailing party under this section failed to seek 9
453453 recovery of costs or attorney's fees in the underlying action; 10
454454 (2) The court in the underlying action declined to recognize or 11
455455 enforce the requirements of this section; or 12
456456 (3) The court in the underlying action held that any provisions 13
457457 of this section are invalid, unconstitutional, or preempted by federal law, 14
458458 notwithstanding the doctrines of issue or claim preclusion. 15
459459 16
460460 20-16-2612. Severability. 17
461461 (a) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in 18
462462 the context of determining the severability of a state statute regulating 19
463463 abortion the United States Supreme Court held that an explicit statement of 20
464464 legislative intent is controlling, it is the intent of the General Assembly 21
465465 that every provision, section, subsection, sentence, clause, phrase, and word 22
466466 of this subchapter, and every application of the provisions of this 23
467467 subchapter, be severable from each other. 24
468468 (b)(1) If any application of any provision of this subchapter to any 25
469469 person or entity, group of persons or entities, or circumstances is found by 26
470470 a court to be invalid, preempted, unconstitutional, or to impose an undue 27
471471 burden on any woman or group of women seeking an abortion, then the remaining 28
472472 applications of that provision to all other persons or entities and 29
473473 circumstances shall be severed and preserved, and shall remain in effect. 30
474474 (2) All constitutionally valid applications of the provisions of 31
475475 this subchapter, and every application of those provisions that can be 32
476476 enforced without imposing an undue burden on women seeking abortions, shall 33
477477 be severed from any applications that a court finds to be invalid, preempted, 34
478478 unconstitutional, or to impose an undue burden on women seeking abortions, 35
479479 and the valid applications shall remain in force, becaus e it is the General 36 SR13
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484484 Assembly's intent and priority that the valid applications be allowed to 1
485485 stand alone. 2
486486 (3) Even if a reviewing court finds that a provision of this 3
487487 subchapter imposes an undue burden in a large or substantial fraction of 4
488488 relevant cases, the applications that do not present an undue burden shall be 5
489489 severed from the remaining applications and shall remain in force, and shall 6
490490 be treated as if the General Assembly had enacted a statute limited to the 7
491491 persons or entities, groups of persons or entities, or circumstances for 8
492492 which the statute's application does not present an undue burden. 9
493493 (c) The General Assembly further declares that it would have enacted 10
494494 this subchapter, and each provision, section, subsection, sentence, clause, 11
495495 phrase, or word, and all constitutional applications of this subchapter, 12
496496 irrespective of the fact that any provision, section, subsection, sentence, 13
497497 clause, phrase, or word, or applications of this subchapter, were to be 14
498498 declared invalid, preempted, unconstitutiona l, or to impose an undue burden. 15
499499 (d) If any provision of this subchapter is found by any court to be 16
500500 unconstitutionally vague, then the applications of that provision that do not 17
501501 present constitutional vagueness problems shall be severed and remain in 18
502502 force consistent with the requirements of subsections (a) -(c) of this 19
503503 section. 20
504504 (e)(1) A court may not decline to enforce the severability 21
505505 requirements of subsections (a) -(d) of this section on the grounds that 22
506506 severance would rewrite the statute or involve the court in legislative or 23
507507 lawmaking activity. 24
508508 (2) A court that declines to enforce or enjoins a state official 25
509509 from enforcing a statutory provision does not rewrite a statute, as the 26
510510 statute contains the same words as before the court's decision. 27
511511 (3) A judicial injunction or declaration of unconstitutionality: 28
512512 (A) Is nothing more than an edict prohibiting enforcement 29
513513 that may subsequently be vacated by a later court if that court has a 30
514514 different understanding of the requirements of the Arkansas Constitution or 31
515515 the United States Constitution; 32
516516 (B) Is not a formal amendment of the language in a 33
517517 statute; and 34
518518 (C) No more rewrites a statute than a decision by the 35
519519 Governor not to enforce a duly enacted statute in a limited and defined set 36 SR13
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523523
524524 of circumstances. 1
525525 (f)(1) If any state or federal court disregards the severability 2
526526 requirements of subsections (a) -(e) of this section, and declares or finds 3
527527 any provision of this subchapter is facially unconstitutional, when there are 4
528528 discrete applications o f that provision that can be enforced against a person 5
529529 or entity, group of persons or entities, or circumstances without violating 6
530530 federal law, the United States Constitution, or the Arkansas Constitution or 7
531531 imposing an undue burden on women seeking aborti ons, then that provision 8
532532 shall be interpreted as if the General Assembly had enacted a provision 9
533533 limited to the persons or entities, groups of persons or entities, or 10
534534 circumstances for which the provision's application will not violate federal 11
535535 law, the United States Constitution, or the Arkansas Constitution or impose 12
536536 an undue burden on women seeking abortions. 13
537537 (2) Every court shall adopt this saving construction of that 14
538538 provision until the court ruling that pronounced the provision facially 15
539539 unconstitutional is vacated or overruled. 16
540540 17
541541 SECTION 2. DO NOT CODIFY. Construction. 18
542542 It is the specific intent of this act that the provisions of this act 19
543543 are supplemental to, cumulative to, and in addition to existing laws, civil 20
544544 or criminal, and shall not be const rued to amend, repeal, or otherwise affect 21
545545 those existing laws, including without limitation: 22
546546 (1) The Arkansas Human Life Protection Act, § 5 -61-301 et seq.; 23
547547 (2) The Arkansas Unborn Child Protection Act, § 5 -61-401 et 24
548548 seq.; 25
549549 (3) Section 20-16-603; 26
550550 (4) Section 20-16-604; 27
551551 (5) Section 20-16-701 et seq.; 28
552552 (6) The Unborn Child Pain Awareness and Prevention Act, § 20 -16-29
553553 1101 et seq.; 30
554554 (7) The Partial-Birth Abortion Ban Act, § 20 -16-1201 et seq.; 31
555555 (8) The Arkansas Human Heartbeat Protection Act, § 20-16-1301 et 32
556556 seq.; 33
557557 (9) The Pain-Capable Unborn Child Protection Act, § 20 -16-1401 34
558558 et seq.; 35
559559 (10) The Abortion-Inducing Drugs Safety Act, § 20 -16-1501 et 36 SR13
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562562
563563
564564 seq.; 1
565565 (11) The Arkansas Unborn Child Protection from Dismemberment 2
566566 Abortion Act, § 20-16-1801 et seq.; 3
567567 (12) The Sex Discrimination by Abortion Prohibition Act, § 20 -4
568568 16-1901 et seq.; 5
569569 (13) The Cherish Act, § 20 -16-2001 et seq.; and 6
570570 (14) The Down Syndrome Discrimination by Abortion Prohibition 7
571571 Act, § 20-16-2101 et seq. 8
572572 9
573573 SECTION 3. EMERGENCY CLAUSE. It is found and determined by the 10
574574 General Assembly of the State of Arkansas that legislation in other states 11
575575 has created a situation in which individuals from other states are entering 12
576576 Arkansas seeking abortions, which is burdening the hea lthcare system in this 13
577577 state; that the General Assembly previously enacted legislation in the spring 14
578578 of 2021 to abolish abortions, which has been enjoined; that abortions have 15
579579 increased in this state causing harm to unborn children and the health and 16
580580 safety of pregnant women; and that this act is immediately necessary to 17
581581 protect the lives of unborn children and the health and safety of pregnant 18
582582 women in this state. Therefore, an emergency is declared to exist, and this 19
583583 act being immediately necessary for th e preservation of the public peace, 20
584584 health, and safety shall become effective on: 21
585585 (1) The date of its approval by the Governor; 22
586586 (2) If the bill is neither approved nor vetoed by the Governor, 23
587587 the expiration of the period of time during which the Go vernor may veto the 24
588588 bill; or 25
589589 (3) If the bill is vetoed by the Governor and the veto is 26
590590 overridden, the date the last house overrides the veto. " 27
591591 28
592592 29
593593 30
594594 31
595595 32
596596 33
597597 34
598598 35
599599 36