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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
SENATE BILL 1503 By: Daniels
AS INTRODUCED
An Act relating to abortion; creating the Oklahoma
Heartbeat Act; stating legislative findings; 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 perfo rmance
of abortion under certain conditio ns; clarifying
allowed conduct; specifying effect of certain
provisions; providing exception for medical
emergency; requiring physician to record certain
information; providing for and prohibit ing 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; prohib iting 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;
prohibiting certain transfer of venue; specifying
control of certain provisions; granting specified
entities certain immun ities; establishing liability
for court costs and attorney fees; defining term;
establishing statute of limitation for bringing
certain actions; prohibiting use of c ertain defenses;
providing certain construction; providing for
codification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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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 duplicati on in numbering, reads as follows:
This act shall be known and may be cited as the Oklahoma
Heartbeat Act.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 1-745.32 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. The Legislature finds that this state never repealed, either
expressly or by implication, the state statutes enacted before the
ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and
criminalize abortion unless the mother ’s life is in danger.
B. The Legislature finds, according to contemporary medical
research, that:
1. Fetal heartbeat has become a k ey medical predictor that an
unborn child will reach live birth;
2. Cardiac activity begins at a biologically identifiable
moment in time, normally when the fetal heart is formed in the
gestational sac;
3. This state has compelling interests from the out set of a
woman ‘s pregnancy in protecti ng the health of the woman and the
life of the unborn child; and
4. To make an informed choice about whether to continue her
pregnancy, the pregnant woman has a compelling interest in knowing
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the likelihood of her un born child surviving to full-term birth
based on the presence of cardiac activity.
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 duplicatio n in numbering, reads as follows:
As used in this act:
1. “Fetal heartbeat” means cardiac activity or the steady and
repetitive rhythmic contractio n of the fetal heart within the
gestational sac;
2. “Gestational age” means the amount of time that has ela psed
from the first day of a woman ’s last menstrual period;
3. “Gestational sac” means the structure comprising 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 license d to practice
medicine in this state including a medical doctor and 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 developing huma n
offspring, and
c. is calculated from the first day of the woman’s last
menstrual period;
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6. “Standard medical practice” means the degree of skill, care,
and diligence that an obstetrician of ordinary judgment, lear ning,
and skill would employ in like ci rcumstances; and
7. “Unborn child” means a human fetus or embryo in any stage of
gestation from fertilizatio n until birth.
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 numb ering, reads as follows:
A. For the purposes of determinin g the presence of a feta l
heartbeat under this section, “standard medical practice ” includes
employing the appropriate means of detecting the heart beat 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, in 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 p hysician’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.
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D. A physician making a determination und er 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 heartbeat including the
date, time, and results of the test.
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 duplication in numbering, reads as follows:
A. Except as provided by Section 6 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 4 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 4 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 6. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 1-745.36 of Title 63, unless
there is created a duplication in numbering, reads as follows:
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A. Sections 4 and 5 of this act shall not apply if a physi cian
believes a medical emergency exist s that prevents compliance 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 necess itated
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 physician ’s practice records a copy of
the notations made under subsection B of this section.
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 numb ering, 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
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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 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. Notwithstanding any other law, t he requirements of this act
shall be enforced exclusively through the private civil a ctions
described in Section 9 of this act. No enforcement of this act, and
no enforcement of any statute with crimi nal 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 admin istrative officer or employee of
this state or a political subdivision agains t any person, except as
provided in Section 9 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 availability of a remedy
established by Section 9 of this act; or
3. Limit the enforceability of any other la ws that regulate or
prohibit abortion.
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 duplicati on in numbering, reads as follows:
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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 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 insura nce or otherwise,
if the abortion is pe rformed or induced in violation of this act,
regardless of whether the person knew or should have known that the
abortion would be perfo rmed 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 actio n brought under this
section, the court shall a ward:
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 tha t 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; and
3. Court costs and attorney fees.
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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 the 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 violatio n of this
act, or for the particular conduct that aided or a betted 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 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 ha s
been brought;
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5. Non-mutual issue preclusion or non-mutual 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 w ill violate the
constitutional rights of th ird parties, except as provide d by
Section 10 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 subse ction 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 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
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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 acti on brought
under this section. This subsection shall not prohibit a person
described by this subse ction from filing an amicus curiae brief in
the action.
I. Notwithstanding any othe r law, a court shall not award court
costs or attorney fees to a defendant in an action b rought 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 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 dupl ication in numbering, reads as follows:
A. A defendant against whom an action is brought under Section
9 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
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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 the 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 9 of this act
may assert an affirmative defense to liability under t his section
if:
1. The defendant has standing to assert the third -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 o r 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 wom an 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:
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1. Merely demonstrating that an awar d of relief will prevent
women from obtaining supp ort 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 se eking 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 whethe r the conduct on which the
cause of action is based under Section 9 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 p reclude a
defendant from asserting the defendant ’s personal constitutional
rights as a defense to liability un der Section 9 of this act, and a
court shall not award relief und er Section 9 of this act if the
conduct for which the defendant has been sued was an exercise of
state or federal constitutional rights that personally belong to the
defendant.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 1-745.41 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 9 of this act shall be brought in:
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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 natural 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 9 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 a ll parties.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.42 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. This section prevails over any co nflicting 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 sub division has official immunity in any
action, claim, or countercl aim 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.
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C. A provision of state law shall not be construed to waive or
abrogate an immunity described by subsection A of this section
unless it expressly waives immunity under this section .
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes a s Section 1-745.43 of Title 63, unless
there is created a duplication 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 official 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 f unding for individuals or entities
that perform or promote abortions, 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 considered 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
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2. Enters judgment in the part y’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 ma y 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 brought 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 requirements 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.
SECTION 14. This act shall become effective November 1, 2022.
58-2-2728 DC 1/20/2022 8:04:16 AM