Req. No. 10251 Page 1
STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 3700 By: Russ
AS INTRODUCED
An Act relating to abortion; defining terms;
prohibiting performance of abortion except under
certain conditions; requiring cer tain test to meet
specified criteria; requiring physician to record
certain information; prohibiting perfor mance of
abortion under certain conditions; clarifying allowed
conduct; specifying effect of ce rtain provisions;
providing exception for medical emergency; requiring
physician to record certain information; providing
for and prohibiting certain enforcement ; allowing
certain persons to bring certain civil action;
requiring and prohibiting certain civil relief;
establishing deadline for filing of civil action;
allowing and disallowing certain defenses;
prohibiting certain intervention in civil action;
prohibiting certain persons from bringing civil
action; limiting standing for defendants; allowing
for affirmative defense under certain conditions;
stipulating criteria for undue burden defense;
specifying venue for civil action; prohib iting
certain transfer of venue; specifying control of
certain provisions; granting specified entities
certain immunities; establishing liability for court
costs and attorney fees; defini ng term; establishing
statute of limitation for bringing certain actions;
prohibiting use of ce rtain defenses; providing
certain construction; providing for codification; and
providing an effective date .
Req. No. 10251 Page 2
BE IT ENACTED BY THE PEOPLE OF THE STA TE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.31 of Title 63, unless
there is created a duplication in numbering, reads as f ollows:
As used in this act:
1. "Fetal heartbeat" means cardiac activity or t he steady and
repetitive rhythmic contractio n of the fetal heart within the
gestational sac;
2. "Gestational age" means the amount of time that has elapsed
from the first day of a woman's last menstrual period ;
3. "Gestational sac" means the structure co mprising the
extraembryonic membranes that e nvelop the unborn child and that is
typically visible by ultrasound after the fourth week of pregnancy;
4. "Physician" means an individual licensed to practice
medicine in this state, including a medical doctor a nd a doctor of
osteopathic medicine ;
5. "Pregnancy" means the human female reprodu ctive condition
that:
a. begins with fertiliza tion,
b. occurs when the woman is carrying the de veloping human
offspring, and
c. is calculated from the first day of the woman 's last
menstrual period; Req. No. 10251 Page 3
6. "Standard medical practice" means the degree of skill, care,
and diligence that an obstetrician of ordinary judgment, learning,
and skill would empl oy in like circumstances ; and
7. "Unborn child" means a human fetus or embryo in any stage of
gestation from fertilizatio n until birth.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.32 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. For the purposes of determinin g the presence of a fetal
heartbeat under this section, "standard medical practice " includes
employing the appropriate means of detect ing the heartbeat based on
the estimated gestational age of the unborn child and the condition
of the woman and her pregna ncy.
B. Except as provided by Section 4 of this act, a physician
shall not knowingly perform or induce an abortion on a pregnant
woman unless the physician has determined, i n accordance with this
section, whether the woman 's unborn child has a detectable fetal
heartbeat.
C. In making a determination under subsection B of this
section, the physician must use a test that is:
1. Consistent with the physician 's good faith and reasonable
understanding of standard medical practice; and
2. Appropriate for the estimated gestational age of the unbo rn
child and the condition of the pregnant wom an and her pregnancy. Req. No. 10251 Page 4
D. A physician making a dete rmination under subsection B of
this section shall record in the pregnant woman 's medical record:
1. The estimated gestational age of the unborn child;
2. The method used to estimate the gestational age; and
3. The test used for detecting a fetal heartb eat, including the
date, time, and resul ts of the test.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.33 of Title 63, unless
there is created a duplication in numbering, reads as fol lows:
A. Except as provided by Section 4 of this act, a physician
shall not knowingly perform or induce an abortion on a pregnant
woman if the physician detected a fetal heartbeat for the unborn
child as required by Section 2 of this act or failed to perform a
test to detect a fetal heartbeat.
B. A physician shall not be in violation of this section if the
physician performed a test for a fetal heartbeat as required by
Section 2 of this act and did not detect a fetal heartbeat.
C. This section shall not affect any provision of state law
that regulates or prohibits abortion, including, but not limited to,
any provision that res tricts or regulates an abortion by a
particular method or during a particular sta ge of pregnancy.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.34 of Title 63, unless
there is created a duplication in numbering, reads as follows: Req. No. 10251 Page 5
A. Sections 2 and 3 of this act shall not apply if a physician
believes a medical em ergency exists that prevents complia nce with
this act.
B. A physician who performs or induces an abortion under
circumstances described by subsection A of this section shall make
written notations in the pr egnant woman's medical record of:
1. The physician's belief that a medical emergency necessitated
the abortion; and
2. The medical condition of the pregnant woman that prevented
compliance with this act.
C. A physician performing or inducing an abortion under this
section shall maintain in the physici an's practice records a copy of
the notations made under subsection B of this section.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.35 of Title 63, unless
there is created a duplic ation in numbering, reads as follows :
This act shall not be construed to:
1. Create or recognize a righ t to abortion before a fetal
heartbeat is detected ;
2. Authorize the initiation of a cause of act ion against or the
prosecution of a woman on whom an abortion is performed or induced
or attempted to be perfor med or induced in violation of this act;
3. Wholly or partly repeal, either expressly or by implication,
any other statute that regulates or prohi bits abortion; or Req. No. 10251 Page 6
4. Restrict a political subd ivision from regulating or
prohibiting abortion in a manner that is at least as stringent as
the laws of this state.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.36 of Title 63, unless
there is created a duplication in nu mbering, reads as follows:
A. Notwithstanding any other law, t he requirements of this act
shall be enforced exclusively through the private civil a ctions
described in Section 7 of this act. No enforcement of this act, and
no enforcement of any statute with criminal or administrative
penalties, in response to violations of this act, shall be taken or
threatened by this state, a political s ubdivision, a district
attorney, or an executive or administrative officer or emplo yee of
this state or a political sub division against any person, except as
provided in Section 7 of this act.
B. Subsection A of this section shall not be construed to:
1. Legalize the conduct prohibited b y this act;
2. Limit in any way or affect the av ailability of a remedy
established by Section 7 of this act; or
3. Limit the enforceability of any other la ws that regulate or
prohibit abortion.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Se ction 1-745.37 of Title 63, unless
there is created a duplication in numbering, reads as follows: Req. No. 10251 Page 7
A. Any person, other than an officer or employee of a state or
local governmental entity in this state , may bring a civil action
against any person who:
1. Performs or induces an abortion in v iolation of this act;
2. Knowingly engages in conduct that aids or abets the
performance or inducement of an abortion , including paying for or
reimbursing the costs of an abortion through insurance or otherwise,
if the abortion is performed or induced in violation of this act,
regardless of whether the person knew or should have known that the
abortion would be performed or induced in violation of this act; or
3. Intends to engage in the conduct described by paragraph 1 or
2 of this subsection .
B. If a claimant prevails in an action brought under this
section, the court shall a ward:
1. Injunctive relief sufficient to prevent the defendant from
violating this act or engaging in acts that aid or abet violations
of this act;
2. Statutory damages in an amou nt of not less than Ten Thousand
Dollars ($10,000.00) for each abortion tha t the defendant perfo rmed
or induced in violation of this act, and for each abortion performed
or induced in violation of this act that the defendant aided or
abetted; and
3. Court costs and attorney fees. Req. No. 10251 Page 8
C. Notwithstanding subsection B of this section, a court shall
not award relief under this section in response to a vi olation of
paragraph 1 or 2 of subsection A of this section if the defendant
demonstrates that th e defendant previously paid not less than Ten
Thousand Dollars ($10,000.00) of statutory damages as provided in
paragraph 2 of subsection B of this section in a previous action for
that particular abortion performed or induced in viola tion of this
act, or for the particular conduct that aided or abetted an abortion
performed or induced in violation of this act.
D. Notwithstanding any other law, a person may bring an action
under this section not later than four (4) years after the date the
cause of action accrues.
E. Notwithstanding any other law , the following are not a
defense to an action brough t under this section:
1. Ignorance or mistake of law;
2. A defendant's belief that the requirements of this act are
unconstitutional or we re unconstitutional;
3. A defendant's reliance on any court decision that has been
overruled on appeal or by a subsequent court, even if that court
decision had not been overruled when the defendant engaged in
conduct that violate s this act;
4. A defendant's reliance on any state or feder al court
decision that is not binding on the court in which the action ha s
been brought; Req. No. 10251 Page 9
5. Nonmutual issue preclusion or nonmutual claim preclusion;
6. The consent of the unborn child's mother to the abortion; or
7. Any claim that the enforcement of th is act or the imposition
of civil liability against the defendant w ill violate the
constitutional rights of third parties, except as provide d by
Section 8 of this act.
F. 1. It is an affirmative defense if:
a. a person sued under paragraph 2 of subsecti on A of
this section reasonably believed, after conducting a
reasonable investigation, that the physician
performing or inducing the abor tion had complied or
would comply with this act, or
b. a person sued under paragraph 3 of subsection A of
this section reasonably believed, after conducting a
reasonable investiga tion, that the physi cian
performing or inducing the abortion will comply with
this act.
2. The defendant has the burden of proving an affirmative
defense under paragraph 1 of this subsect ion by a preponderance of
the evidence.
G. This section shall not be construed to impos e liability on
any speech or conduct protected by the First Amendment of the United
States Constitution, as made applicable to the states th rough the
United States Suprem e Court's interpretation of the Fourteenth Req. No. 10251 Page 10
Amendment of the Unit ed States Constitution , or by Section 3 or 22
of Article II of the Oklahoma Constitution.
H. Notwithstanding any other law, this state, a state official ,
or a district attorney shall not intervene in an action brought
under this section. This subsection shall not prohibit a person
described by this subsection from filing an amicus curiae brief in
the action.
I. Notwithstanding any other law , a court shall not award court
costs or attorney fees to a defendant in an action brought under
this section.
J. Notwithstanding any other law , a civil action under this
section shall not be brought by a person who impregnated the
abortion patient through an act of rape, sexual assault, incest, or
any other act prohibited by state law .
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.38 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. A defendant against whom an action is brought und er Section
7 of this act shall not have standing to asse rt the rights of women
seeking an abortion as a defense to liability un der that section
unless:
1. The United States Supreme Court holds that the courts of
this state must confer standing on that defendant to assert the Req. No. 10251 Page 11
third-party rights of women seeking an abortion in state court as a
matter of federal constitutional law; or
2. The defendant has standing to assert t he rights of women
seeking an abortion under the tests for third-party standing
established by the United States Supreme Court.
B. A defendant in an action brought under Section 7 of this act
may assert an affirmative defense to liability under this s ection
if:
1. The defendant has standing to assert the thi rd-party rights
of a woman or group of women seeking an abortion in accordance with
subsection A of this section; and
2. The defendant demonstrates that the relief sought by the
claimant will impose an undue burden on that woman or that group of
women seeking an abortion.
C. A court shall not find an undue burden under subsection B of
this section unless the defendant introduces evidence proving that:
1. An award of relief will prevent a woman or a group of women
from obtaining an abortion; or
2. An award of relief will place a substantial obstacle in the
path of a woman or a group of w omen who are seeking an abortion.
D. A defendant shall not establish an undue burden under this
section by: Req. No. 10251 Page 12
1. Merely demonstrating that an award of relief will prevent
women from obtaining suppo rt or assistance, financial or otherwise,
from others in their effort to obtain an abortion; or
2. Arguing or attempting to d emonstrate that an award of relief
against other defendants or other potential defendants will impose
an undue burden on women see king an abortion.
E. The affirmative defense under subsection B of this section
shall not be available if the United States Supreme Court overrules
Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505
U.S. 833 (1992), regardless of whether the c onduct on which the
cause of action is based under Section 7 of this act occurred before
the Supreme Court overruled eithe r of those decisions.
F. Nothing in this section shall in any way limit or preclude a
defendant from asserting the defendant 's personal constitutional
rights as a defense to liability un der Section 7 of this act, and a
court shall not award relief und er Section 7 of this act if the
conduct for which the defendant has b een sued was an exercise of
state or federal constitutional rights that personally belong to the
defendant.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 1-745.39 of Title 63, unless
there is created a duplication in numberi ng, reads as follows:
A. Notwithstanding any other law, a civil action brought under
Section 7 of this act shall be brought in: Req. No. 10251 Page 13
1. The county in which all or a substant ial part of the events
or omissions giving rise to the claim occurred;
2. The county of residence for any one of the natural person
defendants at the time the cause of ac tion accrued;
3. The county of the principal office in this state of any one
of the defendants that is not a n atural person; or
4. The county of residence for the claimant if the claimant is
a natural person residing in this state.
B. If a civil action is brought under Section 7 of this act in
any one of the venues described by subsection A of this section, the
action shall not be transferred to a different venue without the
written consent of all parties.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.40 of Title 63, unless
there is created a duplication in numb ering, reads as follows:
A. This section prevails over any conflicting law.
B. This state has sovereign immunity, a poli tical subdivision
has governmental immunity, and each officer and employee of this
state or a political subdivision has official immun ity in any
action, claim, or counterc laim or any type of legal or equitable
action that challenges the validity of any pro vision or application
of this act, on constitutional groun ds or otherwise. Req. No. 10251 Page 14
C. A provision of state law shall not be construed to waiv e or
abrogate an immunity described by subsection A of this section
unless it expressly waives immunity under this section .
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.41 of Title 63, unless
there is created a duplic ation in numbering, reads as follows:
A. Notwithstanding any other law, any party including an
entity, attorney, or law firm, who seeks declaratory or injunctive
relief to prevent this state, a political subdivision, any
governmental entity or public offi cial in this state, or any person
in this state from enforcing any statute, ordinance, rule,
regulation, or any other type of law that regulates or restricts
abortion or that limits taxpayer funding for individuals or entities
that perform or promote abort ions, in any state or federal court, or
that represents any litigant seeking such relief in any state or
federal court, shall be liable for court costs and attorney fees of
the prevailing party.
B. For purposes of this section, a party is consider ed a
prevailing party if a state or federal court:
1. Dismisses any claim or cause o f action brought against the
party that seeks the declaratory or injunctive relief described by
subsection A of this section, regardless of the reason for the
dismissal; or Req. No. 10251 Page 15
2. Enters judgment in the party 's favor on any such claim or
cause of action.
C. Regardless of whether a prevailing party sought to recover
court costs or attorney fees in the underlying action, a prevailing
party under this section may bring a civil action to recover court
costs and attorney fees against a party including an entity,
attorney, or law firm, that sought declaratory or injunctive relief
described by subsection A of this section not later than three (3)
years after the date on which, as applicable:
1. The dismissal or judgment described by subsection B of this
section becomes final on the conclusion of appellate review; or
2. The time for seeking appellate review expires.
D. It is not a defense to an action br ought under subsection C
of this section that:
1. A prevailing party under this section failed to seek
recovery of court costs or attorney fees in the underlying action;
2. The court in the underlying acti on declined to recognize or
enforce the requireme nts of this section; or
3. The court in the underlying action held that any provisions
of this section are invalid, unconstitu tional, or preempted by
federal law, notwithstanding the d octrines of issue or claim
preclusion. Req. No. 10251 Page 16
SECTION 12. This act shall become effective November 1, 2022.
58-2-10251 KN 01/19/22