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SENATE FLOOR VERSION
April 11, 2022
ENGROSSED HOUSE
BILL NO. 4327 By: Stearman, Roberts (Sean)
and McDugle of the House
and
Dahm and Bullard of the
Senate
An Act relating to abortion; defining terms;
prohibiting abortion; providing exceptions; providing
for exceptions based upon per formance of duties
pursuant to federal law; providing for ci vil actions
as exclusive method of enforcement; providing
exceptions; prohibiting governmental entities from
enforcement activity; providing an exception;
prohibiting violations of act to be used in
designated manner; providing except ions; providing
for civil actions; designating persons or entities
authorized to file civi l action; providing for
authorized judicial remedies; authorizing damage s;
authorizing injunctive relief; authorizing court
costs; authorizing attorney fees; providing
exceptions for award of damages; prescribing statute
of limitations; excluding certain defenses;
specifying affirmative defense; providing for
statutory construction; prohibiting actions by
governmental entities; authorizing filing of amicus
brief; prohibiting award of costs or att orney fees in
certain actions; providing for inapplicability o f
certain statutory provisions; prohibiting civil
actions with respect to certain defendants; providing
for affirmative defenses; pre scribing standard of
proof; disallowing affirmative defense based upon
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certain judicial action; providing for assertion of
constitutionally based rights ; prescribing venue for
civil actions; prohibiting transfer of cases;
providing for sovereign immunity; prohibiting waiver
or abrogation of sovereign immunity; pres cribing
limit on subject matter jurisdiction; a uthorizing
assertion of invalidity or unconstitutionality;
stating legislative intent; providing for
severability; making declarations; prohibiting
certain judicial action with respect to seve rability;
providing for effect of certain federal judicial
determinations; amen ding 12 O.S. 2021, Section 1439,
which relates to the Oklahoma Citizens Pa rticipation
Act; modifying scope of act; amending 51 O.S. 20 21,
Section 255, which relates to the Oklahoma Religio us
Freedom Act; modifying scope of act; providing for
codification; and declaring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE 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, re ads as follows:
As used in this act:
1. "Abortion" means the act of using, prescribing,
administering, procuring, or selling of any instrument, medicine,
drug, or any other substance, device, or means with the purpose to
terminate the pregnancy of a woman , with knowledge that the
termination by any of those means will with reasonable likelihood
cause the death of an unborn child. It does not include the use,
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prescription, administration, procuring, or selling of Plan B,
morning-after pills, or any other ty pe of contraception or emerg ency
contraception. An act is not an abortion if the act is performed
with the purpose to:
a. save the life or preserve the health of the unborn
child,
b. remove a dead unborn child caused by spontaneous
abortion, or
c. remove an ectopic pregnancy;
2. "Fertilization" means the fusion of a human spermatozoon
with a human ovum;
3. "Medical emergency" means a condition in which an abortion
is necessary to preserve the life of a pregnant woman whose life is
endangered by a physical disorder, physical illness, or physic al
injury, including a life-endangering physical condition caused by or
arising from the pregnancy itself;
4. "Unborn child" means a human fetus or embryo in any stage of
gestation from fertilizatio n until birth; and
5. "Woman" and "women" include any person whose biological sex
is female, including any person with XX chromosomes and any person
with a uterus, regardless of any gender ident ity that the person
attempts to assert or claim.
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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:
Except as provided by Section 3 of this act, a person shall not
knowingly perform or attempt to perform an abortion unless:
1. The abortion is necessary to save the life of a pregnant
woman in a medical emergency ; or
2. The pregnancy is the result of rape, sexu al assault, or
incest that has been reported to law enforcement.
SECTION 3. NEW LAW A n ew 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 follows:
The prohibition in Section 2 of this act does not apply to an
abortion performed at the behest of federal agencies, contractors,
or employees that are carrying out duties under federal law, if a
prohibition on that abortion would violate the doctrin es of
preemption or interg overnmental immunity.
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:
Notwithstanding any other law, the requirements of this act
shall be enforced exclusively through the p rivate civil actions
described in Section 5 of this act. No direct or indirect
enforcement of this act may be taken or threatened by the state, a
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political subdivision, a district attorney, or an executive or
administrative officer or employee of this sta te or a political
subdivision against any person or entity, in any manner whatsoever,
except as provided in Section 5 of this act, and no violation of
this act may be used to justify or trigger the enforcement of any
other law or any type of adverse conseq uence under any other law,
except as provided in Section 5 of this act; provided, that this
section does not preclude the enforcement of any other law or
regulation against conduct th at is independently prohibited by such
other law or regulation , and that would remain prohibited by such
other law or regulation in the absence of this act.
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 duplicati on in numbering, reads as follows:
A. Any person, other than the state, its political
subdivisions, and any 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 violation 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 perform ed or induced in violation of this act,
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regardless of whether the person knew or should have known that the
abortion would be perfo rmed or induced in violat ion 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 award:
1. Injunctive relief suffici ent 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 amount of not less than Ten Thousand
Dollars ($10,000.00) for each abortion that the defendant performed
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;
3. Nominal and compensatory damages if the plaintiff has
suffered harm from the defendant's conduct, including but not
limited to loss of consortium a nd emotional distress; and
4. Court costs and attorney fees.
C. Notwithstanding subsection B of this section, a court shall
not award relief under paragraph 2 or 4 of subsection B of this
section in response to a violation of paragraph 1 or 2 of subsection
A of this section if the defendant demonstrates that a court has
already ordered the defendant to pay not less than Ten Thousand
Dollars ($10,000.00) of statutory damages as provided in paragraph 2
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of subsection B of this section in a previous action for that
particular abortion performed or induced in violatio n of this act,
or for the particular condu ct 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 six (6) years after the date the
cause of action accrues.
E. Notwithstanding any other law, the following are not a
defense to an action brought under this section:
1. Ignorance or mistake of law;
2. A defendant's belief that the requirements of this act are
unconstitutional or were uncons titutional;
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 violates this act;
4. A defendant's reliance on any state or federal court
decision that is not binding on the court in which the action has
been brought;
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 this act or the imposition
of civil liability against the defendant will violate the
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constitutional rights of th ird parties, except as provide d by
Section 6 of this act.
F. 1. It is an affirmative defense if a person sued under
paragraph 2 or 3 of subsection A of this section reasonably
believed, after conducting a reasonable investigation, that the
individuals and organizations involved with performing or
facilitating the abortion would comply with this act.
2. The defendant has the burden of proving an affirmative
defense under paragraph 1 of this subsection 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 through the
United States Supreme Court's interpretation of the Fourteenth
Amendment of the United States Constitution , or by Section 3 or 22
of Article II of the Oklahoma Constitution.
H. 1. Notwithstanding any other law, neither the state, nor
any of its political subdivisions, nor any district attorney, nor
any executive or adminis trative officer or employee of this state or
a political subdivision may :
a. act in concert or participation with anyone who brings
suit under this section ,
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b. establish or attempt to establish any type of agency
or fiduciary relationship with a plaintiff who brings
suit under this section ,
c. make any attempt to control or infl uence a plaintiff's
decision to bring suit under this section or the
plaintiff's conduct of the litigation, or
d. intervene in an action brought under this section.
2. This subsection shall not prohibit a person or entity
described by this subsection from filing an amicus curiae brief in
the action, so long as that person or en tity does not act in concert
or participation with the plaintiff or plaintiffs who sue under this
section or violate any provision of paragraph 1 of this sub section.
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 subject to any provis ion of the Oklahoma
Citizens Participation Act, Section 1430 et seq. of Title 12 of the
Oklahoma Statutes, and shall not be subject to any provision of the
Oklahoma Religious Freedom Act, Section 251 et seq. of Title 51 of
the Oklahoma Statutes .
K. Notwithstanding any other law, a civil action under this
section may not be brought:
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1. Against the woman upon whom an abortion was performed or
induced or attempted to be performed or induced in violation of this
act, or against a pregnant woman who intends or seeks to abort her
unborn child in violation of this act;
2. Against any person or entity that performs, aids or abets,
or attempts to perform or aid or abet an abortion at the behest of
federal agencies, contractors, or employees that are carrying out
duties under federal law, if a prohibition on that abortion would
violate the doctrines of preemption or intergover nmental immunity;
3. Against any common carrier that transports a pregnant woman
to an abortion provider, if the common carrier is unaware that the
woman intends to abor t her unborn child; or
4. By a person who impregnated a woman seeking an abortion
through an act of rape, sexual assault, incest, or any other act
prohibited by state law.
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 numbering, reads as follows:
A. 1. A defendant against whom an action is brought und er
Section 5 of this act may assert an affirmative de fense to liability
under this section if:
a. the defendant has standing to assert t he rights of
women seeking an abortion under the tests for third-
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party standing established by the United States
Supreme Court, and
b. the imposition of civ il liability on the defendant
will result in an undue burden on a woman or group of
women seeking an abortion.
2. The defendant shall bear the burden of proving the
affirmative defense in this subsection by a preponderance of the
evidence.
B. The affirmative defense und er subsection A 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 conduct on which the
cause of action is base d under Section 5 of this act occurred before
the Supreme Court overruled eithe r of those decisions.
C. Nothing in this section or this act shall in any way limit
or preclude a defendant from asserting the defendant's personal
constitutional rights as a d efense to liability under Section 5 of
this act, and a court shall not award relief und er Section 5 of this
act if the conduct for which the defendant has been sued was an
exercise of state or federal consti tutional rights that personally
belong to the defendant.
D. Nothing in this section or this act shall limit or preclude
a defendant from asserting the uncons titutionality of any provision
of this act as a defense to liability under Section 5 of this act.
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SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.37 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. Notwithstanding any other law, a civil action brought under
Section 5 of this act shall be brought in:
1. The county in which all or a substantial 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 t he cause of action 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 5 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 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, re ads as follows:
A. Notwithstanding any other law, this state has sovereign
immunity, a political subdivision has governmental immunity, and
each officer and employee of this state or a political subdivision
has official immunity in any action, claim, counterclaim, or any
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type of legal or equitable action that challenges the validity of
any provision or application of this act, on constitutional groun ds
or otherwise, or that seeks to prevent or enjoin the state, its
political subdivisions, or any officer or employee of this state or
a political subdivision from enforcing any provision or application
of this act, unless that immunity has been abrogated or preempted by
federal law in a manner consistent with the Constitution of the
United States.
B. Notwithstanding any other law, no provision of state law may
be construed to waive or abrogate an immunity described by
subsection A of this section unless it expressly waives immunity
with specific reference to this section.
C. Notwithstanding any other law, n o attorney representing this
state, a political subdivision, or any officer or employee of this
state or a political subdivision is authorized or perm itted to waive
an immunity described in subsection A of this section or take any
action that would result in a waiver of that immunity.
D. Notwithstanding any other law, no court of this state shall
have jurisdiction to consider any action, claim, or coun terclaim
that seeks declaratory or injunctive relief to prevent this state, a
political subdivision , any officer or employee of this state or a
political subdivision, or any person from enforcing any provision or
application of this act, or from filing a civil action under thi s
act.
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E. Nothing in this section or act shall be construed to prevent
a litigant from asserting the invalidity or unconstitu tionality of
any provision or application of this act as a defense to any action,
claim, or counterclaim bro ught against that liti gant.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.39 of Title 63, unless
there is created a duplication in n umbering, reads as follows:
A. Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which
in the context of determining the severability of a state statute
regulating abortion, the Supreme Court of the United States held
that an explicit statement of legislative intent is controlling. It
is the intent of the Legislature that every provision, section,
subsection, sentence, clause, phrase, or word in this act, and every
application of the provisio ns in this act to every person, group of
persons, or circumstances, are severable from each other.
B. If any application of any pro vision in this act to any
person, group of persons, or circumstances is found by a cou rt to be
invalid, preeempted, unconsti tutional, or to impose an undue burden
on any woman or group of women seeking an abortion, then the
remaining applications of that p rovision to all other persons and
circumstances shall be severed and preserved, and sh all remain in
effect. All constitutionally valid applications of the provisions
in this act, and every application of those provisions that c an be
enforced without impos ing an undue burden on women seeking
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abortions, shall be severed from any applications that a court finds
to be invalid, preeempted, unconstitutional, or to impose an undue
burden on women seeking abortions, and the valid applic ations shall
remain in force, because it is the Legislature's intent and priority
that every valid application be allowed to stand alone. Even if a
reviewing court finds a provision of this act to impose an undue
burden in a large or substantial fraction of relevant cases, the
applications that do not present an undue burden shall be severed
from the remaining applic ations and shall remain in force, and shall
be treated as if the Legislature had enacted a statute l imited to
the persons, group of persons, o r circumstances for which th e
statute's application does not impose an undue burden.
C. The Legislature further declares that it would have enacted
this act, and each provision, section, subsection, sentence, claus e,
phrase, or word, and all constitutional applications of the
provisions of this act, irrespective of the fact that any provision,
section, subsection, se ntence, clause, phrase, or word, or
applications of this act were to be declared invalid, preempted,
unconstitutional, or to impose an undue b urden.
D. If any provision of this act is found by any court to be
unconstitutionally vague, then the application s of that provision
that do not present constitutional vagueness problems shall be
severed and remain in force, consistent with the severabilit y
requirements of subsections A, B, and C of this section.
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E. No court may decline to enforce the severability
requirements of subsections A, B, C, and D of this section on the
ground that severance would "rewrite" the statute or involve the
court in legislative or lawmaking activity. A court that declines
to enforce or enjoins a state official from enforcing a sta tutory
provision does not rewrite a statute, as the statute continues to
contain the same words as before the court's decision. A ju dicial
injunction or declaration of uncons titutionality:
1. Is nothing more than an edict prohibiting enforcement that
may subsequently be vacated by a later court if t hat court has a
different understanding of the requirements of the Oklahoma
Constitution or United States Constitution;
2. Is not a formal amendment of the language in a statute; and
3. Does no more rewrites of a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
F. If any state or federal court disregards the severab ility
requirements of subsections A, B, C, D, and E of this section, and
declares or finds any provision of this act facially
unconstitutional, when there are discrete applications of that
provision that can be enforced against a perso n, group of persons,
or circumstances with out violating federal law, the federal or state
constitutions, or imposing an undue burden on women seekin g
abortions, then that provision shall be interpreted, as a matter of
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state law, as if the Legislature had enacted a provision limited to
the persons, group of persons, or circumstances for which the
provision's application will not violate federal law, th e federal or
state constitutions, or impose an undue burden on women seeking
abortions, and every court shal l adopt this saving construction of
that provision until the court ruling that pronounced the provision
facially unconstitutional is vacated or over ruled.
SECTION 10. AMENDATORY 12 O.S. 2021, Section 1439, is
amended to read as follows:
Section 1439. The Oklahoma Citizens Participa tion Act shall not
apply to:
1. An enforcement action that is brought in the name of this
state or a political subdivision of this state by the Attorney
General or a district attorney;
2. A legal action brought against a person primarily engaged in
the business of selling or leasing goods or services, if the
statement or conduct the action is based upon arise s out of the sale
or lease of goods, services, or an insurance product, insurance
services, or a comme rcial transaction in which the intended audienc e
is an actual or potential buyer or customer;
3. A legal action seeking recovery for bodily injury, wrong ful
death or survival or to statements made regarding that legal action;
or
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4. A legal action brought under the Oklahoma Insurance Code or
arising out of an insurance contract; or
5. A civil action brought under Section 5 of this act.
SECTION 11. AMENDATORY 51 O.S. 2021, Section 255, is
amended to read as follows:
Section 255. A. No thing in this act shall be construed to:
1. Authorize any government entity to substantially burden any
religious belief;
2. Authorize same-sex marriages, unions, or the equivalent
thereof; or
3. Affect, interpret, or in any way address those portions o f
Article 1 I, Section 2, and Article 2 II, Section 5, of the
Constitution of the State of Oklahoma, the Oklahoma Religious
Freedom Act, or the First Amendment to the Constitution of the
United States that prohibit laws respecting the establishment of
religion.
B. Granting governmental funds, be nefits, or exemptions to the
extent permissible under paragraph 3 of subsection A of this section
shall not constitute a violation of this section. As used in this
subsection, "granting government funds, benefits, or ex emptions"
shall not include the den ial of government funding, benefits, or
exemptions. This provision does not in and of itself require
vouchers.
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C. A civil action brought under Section 5 of this act shall not
be subject to any provision of the Oklahoma Religious Freedom Act.
SECTION 12. It being immediately necessary for the preservation
of the public peace, health or safety, an emer gency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from a nd after its passage and approval.
COMMITTEE REPORT BY: COMMITTEE ON HEALTH AND HUMAN SERVICES
April 11, 2022 - DO PASS