Oklahoma 2022 Regular Session

Oklahoma House Bill HB3700 Compare Versions

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

Old	New	Differences
1	1	Req. No. 10251 Page 1
2	2	STATE OF OKLAHOMA
3	3
4	4	2nd Session of the 58th Legislature (2022)
5	5
6	6	HOUSE BILL 3700 By: Russ
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10	10
11	11
12	12	AS INTRODUCED
13	13
14	14	An Act relating to abortion; defining terms;
15	15	prohibiting performance of abortion except under
16	16	certain conditions; requiring cer tain test to meet
17	17	specified criteria; requiring physician to record
18	18	certain information; prohibiting perfor mance of
19	19	abortion under certain conditions; clarifying allowed
20	20	conduct; specifying effect of ce rtain provisions;
21	21	providing exception for medical emergency; requiring
22	22	physician to record certain information; providing
23	23	for and prohibiting certain enforcement ; allowing
24	24	certain persons to bring certain civil action;
25	25	requiring and prohibiting certain civil relief;
26	26	establishing deadline for filing of civil action;
27	27	allowing and disallowing certain defenses;
28	28	prohibiting certain intervention in civil action;
29	29	prohibiting certain persons from bringing civil
30	30	action; limiting standing for defendants; allowing
31	31	for affirmative defense under certain conditions;
32	32	stipulating criteria for undue burden defense;
33	33	specifying venue for civil action; prohib iting
34	34	certain transfer of venue; specifying control of
35	35	certain provisions; granting specified entities
36	36	certain immunities; establishing liability for court
37	37	costs and attorney fees; defini ng term; establishing
38	38	statute of limitation for bringing certain actions;
39	39	prohibiting use of ce rtain defenses; providing
40	40	certain construction; providing for codification; and
41	41	providing an effective date .
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47	47
48	48	Req. No. 10251 Page 2
49	49	BE IT ENACTED BY THE PEOPLE OF THE STA TE OF OKLAHOMA:
50	50	SECTION 1. NEW LAW A new section of law to be codified
51	51	in the Oklahoma Statutes as Section 1-745.31 of Title 63, unless
52	52	there is created a duplication in numbering, reads as f ollows:
53	53	As used in this act:
54	54	1. "Fetal heartbeat" means cardiac activity or t he steady and
55	55	repetitive rhythmic contractio n of the fetal heart within the
56	56	gestational sac;
57	57	2. "Gestational age" means the amount of time that has elapsed
58	58	from the first day of a woman's last menstrual period ;
59	59	3. "Gestational sac" means the structure co mprising the
60	60	extraembryonic membranes that e nvelop the unborn child and that is
61	61	typically visible by ultrasound after the fourth week of pregnancy;
62	62	4. "Physician" means an individual licensed to practice
63	63	medicine in this state, including a medical doctor a nd a doctor of
64	64	osteopathic medicine ;
65	65	5. "Pregnancy" means the human female reprodu ctive condition
66	66	that:
67	67	a. begins with fertiliza tion,
68	68	b. occurs when the woman is carrying the de veloping human
69	69	offspring, and
70	70	c. is calculated from the first day of the woman 's last
71	71	menstrual period; Req. No. 10251 Page 3
72	72	6. "Standard medical practice" means the degree of skill, care,
73	73	and diligence that an obstetrician of ordinary judgment, learning,
74	74	and skill would empl oy in like circumstances ; and
75	75	7. "Unborn child" means a human fetus or embryo in any stage of
76	76	gestation from fertilizatio n until birth.
77	77	SECTION 2. NEW LAW A new section of law to be codified
78	78	in the Oklahoma Statutes as Section 1-745.32 of Title 63, unless
79	79	there is created a duplication in numbering, reads as follows:
80	80	A. For the purposes of determinin g the presence of a fetal
81	81	heartbeat under this section, "standard medical practice " includes
82	82	employing the appropriate means of detect ing the heartbeat based on
83	83	the estimated gestational age of the unborn child and the condition
84	84	of the woman and her pregna ncy.
85	85	B. Except as provided by Section 4 of this act, a physician
86	86	shall not knowingly perform or induce an abortion on a pregnant
87	87	woman unless the physician has determined, i n accordance with this
88	88	section, whether the woman 's unborn child has a detectable fetal
89	89	heartbeat.
90	90	C. In making a determination under subsection B of this
91	91	section, the physician must use a test that is:
92	92	1. Consistent with the physician 's good faith and reasonable
93	93	understanding of standard medical practice; and
94	94	2. Appropriate for the estimated gestational age of the unbo rn
95	95	child and the condition of the pregnant wom an and her pregnancy. Req. No. 10251 Page 4
96	96	D. A physician making a dete rmination under subsection B of
97	97	this section shall record in the pregnant woman 's medical record:
98	98	1. The estimated gestational age of the unborn child;
99	99	2. The method used to estimate the gestational age; and
100	100	3. The test used for detecting a fetal heartb eat, including the
101	101	date, time, and resul ts of the test.
102	102	SECTION 3. NEW LAW A new section of law to be codified
103	103	in the Oklahoma Statutes as Section 1-745.33 of Title 63, unless
104	104	there is created a duplication in numbering, reads as fol lows:
105	105	A. Except as provided by Section 4 of this act, a physician
106	106	shall not knowingly perform or induce an abortion on a pregnant
107	107	woman if the physician detected a fetal heartbeat for the unborn
108	108	child as required by Section 2 of this act or failed to perform a
109	109	test to detect a fetal heartbeat.
110	110	B. A physician shall not be in violation of this section if the
111	111	physician performed a test for a fetal heartbeat as required by
112	112	Section 2 of this act and did not detect a fetal heartbeat.
113	113	C. This section shall not affect any provision of state law
114	114	that regulates or prohibits abortion, including, but not limited to,
115	115	any provision that res tricts or regulates an abortion by a
116	116	particular method or during a particular sta ge of pregnancy.
117	117	SECTION 4. NEW LAW A new section of law to be codified
118	118	in the Oklahoma Statutes as Section 1-745.34 of Title 63, unless
119	119	there is created a duplication in numbering, reads as follows: Req. No. 10251 Page 5
120	120	A. Sections 2 and 3 of this act shall not apply if a physician
121	121	believes a medical em ergency exists that prevents complia nce with
122	122	this act.
123	123	B. A physician who performs or induces an abortion under
124	124	circumstances described by subsection A of this section shall make
125	125	written notations in the pr egnant woman's medical record of:
126	126	1. The physician's belief that a medical emergency necessitated
127	127	the abortion; and
128	128	2. The medical condition of the pregnant woman that prevented
129	129	compliance with this act.
130	130	C. A physician performing or inducing an abortion under this
131	131	section shall maintain in the physici an's practice records a copy of
132	132	the notations made under subsection B of this section.
133	133	SECTION 5. NEW LAW A new section of law to be codified
134	134	in the Oklahoma Statutes as Section 1-745.35 of Title 63, unless
135	135	there is created a duplic ation in numbering, reads as follows :
136	136	This act shall not be construed to:
137	137	1. Create or recognize a righ t to abortion before a fetal
138	138	heartbeat is detected ;
139	139	2. Authorize the initiation of a cause of act ion against or the
140	140	prosecution of a woman on whom an abortion is performed or induced
141	141	or attempted to be perfor med or induced in violation of this act;
142	142	3. Wholly or partly repeal, either expressly or by implication,
143	143	any other statute that regulates or prohi bits abortion; or Req. No. 10251 Page 6
144	144	4. Restrict a political subd ivision from regulating or
145	145	prohibiting abortion in a manner that is at least as stringent as
146	146	the laws of this state.
147	147	SECTION 6. NEW LAW A new section of law to be codified
148	148	in the Oklahoma Statutes as Section 1-745.36 of Title 63, unless
149	149	there is created a duplication in nu mbering, reads as follows:
150	150	A. Notwithstanding any other law, t he requirements of this act
151	151	shall be enforced exclusively through the private civil a ctions
152	152	described in Section 7 of this act. No enforcement of this act, and
153	153	no enforcement of any statute with criminal or administrative
154	154	penalties, in response to violations of this act, shall be taken or
155	155	threatened by this state, a political s ubdivision, a district
156	156	attorney, or an executive or administrative officer or emplo yee of
157	157	this state or a political sub division against any person, except as
158	158	provided in Section 7 of this act.
159	159	B. Subsection A of this section shall not be construed to:
160	160	1. Legalize the conduct prohibited b y this act;
161	161	2. Limit in any way or affect the av ailability of a remedy
162	162	established by Section 7 of this act; or
163	163	3. Limit the enforceability of any other la ws that regulate or
164	164	prohibit abortion.
165	165	SECTION 7. NEW LAW A new section of law to be codified
166	166	in the Oklahoma Statutes as Se ction 1-745.37 of Title 63, unless
167	167	there is created a duplication in numbering, reads as follows: Req. No. 10251 Page 7
168	168	A. Any person, other than an officer or employee of a state or
169	169	local governmental entity in this state , may bring a civil action
170	170	against any person who:
171	171	1. Performs or induces an abortion in v iolation of this act;
172	172	2. Knowingly engages in conduct that aids or abets the
173	173	performance or inducement of an abortion , including paying for or
174	174	reimbursing the costs of an abortion through insurance or otherwise,
175	175	if the abortion is performed or induced in violation of this act,
176	176	regardless of whether the person knew or should have known that the
177	177	abortion would be performed or induced in violation of this act; or
178	178	3. Intends to engage in the conduct described by paragraph 1 or
179	179	2 of this subsection .
180	180	B. If a claimant prevails in an action brought under this
181	181	section, the court shall a ward:
182	182	1. Injunctive relief sufficient to prevent the defendant from
183	183	violating this act or engaging in acts that aid or abet violations
184	184	of this act;
185	185	2. Statutory damages in an amou nt of not less than Ten Thousand
186	186	Dollars ($10,000.00) for each abortion tha t the defendant perfo rmed
187	187	or induced in violation of this act, and for each abortion performed
188	188	or induced in violation of this act that the defendant aided or
189	189	abetted; and
190	190	3. Court costs and attorney fees. Req. No. 10251 Page 8
191	191	C. Notwithstanding subsection B of this section, a court shall
192	192	not award relief under this section in response to a vi olation of
193	193	paragraph 1 or 2 of subsection A of this section if the defendant
194	194	demonstrates that th e defendant previously paid not less than Ten
195	195	Thousand Dollars ($10,000.00) of statutory damages as provided in
196	196	paragraph 2 of subsection B of this section in a previous action for
197	197	that particular abortion performed or induced in viola tion of this
198	198	act, or for the particular conduct that aided or abetted an abortion
199	199	performed or induced in violation of this act.
200	200	D. Notwithstanding any other law, a person may bring an action
201	201	under this section not later than four (4) years after the date the
202	202	cause of action accrues.
203	203	E. Notwithstanding any other law , the following are not a
204	204	defense to an action brough t under this section:
205	205	1. Ignorance or mistake of law;
206	206	2. A defendant's belief that the requirements of this act are
207	207	unconstitutional or we re unconstitutional;
208	208	3. A defendant's reliance on any court decision that has been
209	209	overruled on appeal or by a subsequent court, even if that court
210	210	decision had not been overruled when the defendant engaged in
211	211	conduct that violate s this act;
212	212	4. A defendant's reliance on any state or feder al court
213	213	decision that is not binding on the court in which the action ha s
214	214	been brought; Req. No. 10251 Page 9
215	215	5. Nonmutual issue preclusion or nonmutual claim preclusion;
216	216	6. The consent of the unborn child's mother to the abortion; or
217	217	7. Any claim that the enforcement of th is act or the imposition
218	218	of civil liability against the defendant w ill violate the
219	219	constitutional rights of third parties, except as provide d by
220	220	Section 8 of this act.
221	221	F. 1. It is an affirmative defense if:
222	222	a. a person sued under paragraph 2 of subsecti on A of
223	223	this section reasonably believed, after conducting a
224	224	reasonable investigation, that the physician
225	225	performing or inducing the abor tion had complied or
226	226	would comply with this act, or
227	227	b. a person sued under paragraph 3 of subsection A of
228	228	this section reasonably believed, after conducting a
229	229	reasonable investiga tion, that the physi cian
230	230	performing or inducing the abortion will comply with
231	231	this act.
232	232	2. The defendant has the burden of proving an affirmative
233	233	defense under paragraph 1 of this subsect ion by a preponderance of
234	234	the evidence.
235	235	G. This section shall not be construed to impos e liability on
236	236	any speech or conduct protected by the First Amendment of the United
237	237	States Constitution, as made applicable to the states th rough the
238	238	United States Suprem e Court's interpretation of the Fourteenth Req. No. 10251 Page 10
239	239	Amendment of the Unit ed States Constitution , or by Section 3 or 22
240	240	of Article II of the Oklahoma Constitution.
241	241	H. Notwithstanding any other law, this state, a state official ,
242	242	or a district attorney shall not intervene in an action brought
243	243	under this section. This subsection shall not prohibit a person
244	244	described by this subsection from filing an amicus curiae brief in
245	245	the action.
246	246	I. Notwithstanding any other law , a court shall not award court
247	247	costs or attorney fees to a defendant in an action brought under
248	248	this section.
249	249	J. Notwithstanding any other law , a civil action under this
250	250	section shall not be brought by a person who impregnated the
251	251	abortion patient through an act of rape, sexual assault, incest, or
252	252	any other act prohibited by state law .
253	253	SECTION 8. NEW LAW A new section of law to be codified
254	254	in the Oklahoma Statutes as Section 1-745.38 of Title 63, unless
255	255	there is created a duplication in numbering, reads as follows:
256	256	A. A defendant against whom an action is brought und er Section
257	257	7 of this act shall not have standing to asse rt the rights of women
258	258	seeking an abortion as a defense to liability un der that section
259	259	unless:
260	260	1. The United States Supreme Court holds that the courts of
261	261	this state must confer standing on that defendant to assert the Req. No. 10251 Page 11
262	262	third-party rights of women seeking an abortion in state court as a
263	263	matter of federal constitutional law; or
264	264	2. The defendant has standing to assert t he rights of women
265	265	seeking an abortion under the tests for third-party standing
266	266	established by the United States Supreme Court.
267	267	B. A defendant in an action brought under Section 7 of this act
268	268	may assert an affirmative defense to liability under this s ection
269	269	if:
270	270	1. The defendant has standing to assert the thi rd-party rights
271	271	of a woman or group of women seeking an abortion in accordance with
272	272	subsection A of this section; and
273	273	2. The defendant demonstrates that the relief sought by the
274	274	claimant will impose an undue burden on that woman or that group of
275	275	women seeking an abortion.
276	276	C. A court shall not find an undue burden under subsection B of
277	277	this section unless the defendant introduces evidence proving that:
278	278	1. An award of relief will prevent a woman or a group of women
279	279	from obtaining an abortion; or
280	280	2. An award of relief will place a substantial obstacle in the
281	281	path of a woman or a group of w omen who are seeking an abortion.
282	282	D. A defendant shall not establish an undue burden under this
283	283	section by: Req. No. 10251 Page 12
284	284	1. Merely demonstrating that an award of relief will prevent
285	285	women from obtaining suppo rt or assistance, financial or otherwise,
286	286	from others in their effort to obtain an abortion; or
287	287	2. Arguing or attempting to d emonstrate that an award of relief
288	288	against other defendants or other potential defendants will impose
289	289	an undue burden on women see king an abortion.
290	290	E. The affirmative defense under subsection B of this section
291	291	shall not be available if the United States Supreme Court overrules
292	292	Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505
293	293	U.S. 833 (1992), regardless of whether the c onduct on which the
294	294	cause of action is based under Section 7 of this act occurred before
295	295	the Supreme Court overruled eithe r of those decisions.
296	296	F. Nothing in this section shall in any way limit or preclude a
297	297	defendant from asserting the defendant 's personal constitutional
298	298	rights as a defense to liability un der Section 7 of this act, and a
299	299	court shall not award relief und er Section 7 of this act if the
300	300	conduct for which the defendant has b een sued was an exercise of
301	301	state or federal constitutional rights that personally belong to the
302	302	defendant.
303	303	SECTION 9. NEW LAW A new section of law to be codified
304	304	in the Oklahoma Stat utes as Section 1-745.39 of Title 63, unless
305	305	there is created a duplication in numberi ng, reads as follows:
306	306	A. Notwithstanding any other law, a civil action brought under
307	307	Section 7 of this act shall be brought in: Req. No. 10251 Page 13
308	308	1. The county in which all or a substant ial part of the events
309	309	or omissions giving rise to the claim occurred;
310	310	2. The county of residence for any one of the natural person
311	311	defendants at the time the cause of ac tion accrued;
312	312	3. The county of the principal office in this state of any one
313	313	of the defendants that is not a n atural person; or
314	314	4. The county of residence for the claimant if the claimant is
315	315	a natural person residing in this state.
316	316	B. If a civil action is brought under Section 7 of this act in
317	317	any one of the venues described by subsection A of this section, the
318	318	action shall not be transferred to a different venue without the
319	319	written consent of all parties.
320	320	SECTION 10. NEW LAW A new section of law to be codified
321	321	in the Oklahoma Statutes as Section 1-745.40 of Title 63, unless
322	322	there is created a duplication in numb ering, reads as follows:
323	323	A. This section prevails over any conflicting law.
324	324	B. This state has sovereign immunity, a poli tical subdivision
325	325	has governmental immunity, and each officer and employee of this
326	326	state or a political subdivision has official immun ity in any
327	327	action, claim, or counterc laim or any type of legal or equitable
328	328	action that challenges the validity of any pro vision or application
329	329	of this act, on constitutional groun ds or otherwise. Req. No. 10251 Page 14
330	330	C. A provision of state law shall not be construed to waiv e or
331	331	abrogate an immunity described by subsection A of this section
332	332	unless it expressly waives immunity under this section .
333	333	SECTION 11. NEW LAW A new section of law to be codified
334	334	in the Oklahoma Statutes as Section 1-745.41 of Title 63, unless
335	335	there is created a duplic ation in numbering, reads as follows:
336	336	A. Notwithstanding any other law, any party including an
337	337	entity, attorney, or law firm, who seeks declaratory or injunctive
338	338	relief to prevent this state, a political subdivision, any
339	339	governmental entity or public offi cial in this state, or any person
340	340	in this state from enforcing any statute, ordinance, rule,
341	341	regulation, or any other type of law that regulates or restricts
342	342	abortion or that limits taxpayer funding for individuals or entities
343	343	that perform or promote abort ions, in any state or federal court, or
344	344	that represents any litigant seeking such relief in any state or
345	345	federal court, shall be liable for court costs and attorney fees of
346	346	the prevailing party.
347	347	B. For purposes of this section, a party is consider ed a
348	348	prevailing party if a state or federal court:
349	349	1. Dismisses any claim or cause o f action brought against the
350	350	party that seeks the declaratory or injunctive relief described by
351	351	subsection A of this section, regardless of the reason for the
352	352	dismissal; or Req. No. 10251 Page 15
353	353	2. Enters judgment in the party 's favor on any such claim or
354	354	cause of action.
355	355	C. Regardless of whether a prevailing party sought to recover
356	356	court costs or attorney fees in the underlying action, a prevailing
357	357	party under this section may bring a civil action to recover court
358	358	costs and attorney fees against a party including an entity,
359	359	attorney, or law firm, that sought declaratory or injunctive relief
360	360	described by subsection A of this section not later than three (3)
361	361	years after the date on which, as applicable:
362	362	1. The dismissal or judgment described by subsection B of this
363	363	section becomes final on the conclusion of appellate review; or
364	364	2. The time for seeking appellate review expires.
365	365	D. It is not a defense to an action br ought under subsection C
366	366	of this section that:
367	367	1. A prevailing party under this section failed to seek
368	368	recovery of court costs or attorney fees in the underlying action;
369	369	2. The court in the underlying acti on declined to recognize or
370	370	enforce the requireme nts of this section; or
371	371	3. The court in the underlying action held that any provisions
372	372	of this section are invalid, unconstitu tional, or preempted by
373	373	federal law, notwithstanding the d octrines of issue or claim
374	374	preclusion. Req. No. 10251 Page 16
375	375	SECTION 12. This act shall become effective November 1, 2022.
376	376
377	377	58-2-10251 KN 01/19/22