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ENGROSSED SENATE
BILL NO. 1503 By: Daniels and Jett of the
Senate
and
Russ of the House
An Act relating to abortion; creating the Oklahoma
Heartbeat Act; defining terms; prohibiting
performance of abortion except under certain
conditions; requiring certain test to meet specified
criteria; requiring physician to record certain
information; prohibiting perfo rmance of abortion
under certain conditions; clarifying allowed con duct;
specifying effect of certain provisions; providing
exception for medical emergency; requiring physician
to record certain information; providing exception
for abortion performed at the behest of federal
entities; 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 acts by
specified persons and e ntities; specifying
applicability of certain provisions; prohibiting
certain civil actions; authorizing and prohibiting
affirmative defense under certain conditions;
specifying venue for civil action; prohib iting
certain transfer of venue; granting specified
entities certain immunities; prohibiting certain
waiver of immunity; limiting jurisdiction of co urts;
establishing liability for court costs and attorney
fees; defining term; establishing statute of
limitation for bringing certain actions; prohibiting
use of certain defenses; providing for severability;
expressing legislative intent and declarations;
providing for certain interpretation and enforcement;
providing certain construction; amending 12 O.S.
2021, Section 1439, which relates to the Oklahoma
Citizens Participation Act; adding exception;
amending 51 O.S. 2021, Section 255, which relates to
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the Oklahoma Religious Freedom Act ; limiting
applicability of act; providing for codification; and
declaring an emergency.
BE IT ENACTED BY THE PEO PLE 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 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 fol lows:
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 elapsed
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;
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4. “Physician” means an individual licensed 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 deve loping human
offspring, and
c. is calculated from the first day of the woman’s last
menstrual period;
6. “Standard medical practice” means the degree of skill, care,
and diligence that an obstetrician of ordinary judgment, learning,
and skill would employ in like circumstances;
7. “Unborn child” means a human fetus or embryo in any stage of
gestation from fertilizatio n until birth; and
8. “Woman” and “women” include any person whose biological sex
is female including any person with XX chromosomes and an y person
with a uterus, regardless of any gender identit y that the person
attempts to assert or claim .
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 follows:
A. For the purposes of determining the presence of a feta l
heartbeat under this section, “standard medical practice ” includes
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employing the appropriate means of d etecting the heartbeat based on
the estimated gestational age of the unborn child and the condi tion
of the woman and her pregnancy.
B. Except as provided by Sections 5 and 6 of this act, an
abortion may not be performed or induced on a pregnant woman un less
a physician has determined, in acc ordance 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 reaso nable
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.
D. A physician making a determina tion 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 heartbeat including the
date, time, and results of the test.
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:
A. Except as provided by Sections 5 and 6 of this act, a
physician shall not knowingly perform o r induce an abortion on a
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pregnant woman if the physician detected a fetal heartbeat for the
unborn child as required by Section 3 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 3 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 restricts or regulates an abortion by a
particular method or during a particular sta ge of pregnancy.
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. Sections 3 and 4 of this act shall not apply if a physi cian
believes a medical emergency exists that prevents complian ce 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.
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C. A physician performing or inducing an abortion under this
section shall maintain in the physi cian’s practice records a copy of
the notations made under subsection B of this section.
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 dupl ication in numbering, reads as follows:
Sections 3 and 4 of this act do 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 wou ld violate the doctrines of
preemption or intergovernmental immunity.
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 perfo rmed 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
4. Restrict a political subd ivision from regulating or
prohibiting abortion in a ny manner.
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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:
Notwithstanding any other law, the requirements of this act
shall be enforced exclusively through a private civil action
described in Section 9 of this act. No direct or indirect
enforcement of this act may be taken or threatened by the state, a
political subdivision, a district attorney, or an executive or
administrative officer or employee of this s tate or a political
subdivision against any person or entity, in any manner whatsoever ,
except as provided in Section 9 of this act, and no violation of
this act may be used to justify or trigger the e nforcement of any
other law or any type of adverse consequence und er any other law,
except as provided in Section 9 of this act; provided, that this
section does not preclude enforcement of any other law or regulatio n
against conduct that is independently prohibited by such other law
or regulation.
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:
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:
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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 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 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;
3. Nominal and compensatory damages if the plaintiff has
suffered harm from the defendant ’s conduct including but not limited
to loss of consortium and emotional distress ; and
4. Court costs and attorney fees.
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C. Notwithstanding subsection B of this section, a court shall
not award relief under paragraphs 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
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 particula r 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 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;
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4. A defendant’s reliance on any state or federal c ourt
decision that is not binding on the court in which the action has
been brought;
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 will violate the
constitutional rights of th ird parties, except as provided by
Section 10 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 impose 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.
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H. 1. Notwithstanding any other law, neither the state, nor
any of its political subdi visions, nor any district or county
attorney, nor any executive or administ rative 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,
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 th e
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 subse ction from filing an amicus curiae brief in
the action, so long as that perso n or entity 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 subsection .
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 unde r this
section shall not be subject to any provision of the Oklahoma
Citizens Participation Act, Section 1430 et seq. of Title 12 of the
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Oklahoma Statutes, and shall not be subjec t 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 shall not be brought:
1. Against the woman upon whom an abortion was performed or
induced or attempted to be performed or induced in violation of t his
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 o f preemption or intergovernmental 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 abort 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 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 numbering, reads as follows:
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A. 1. A defendant against whom an action is brought under
Section 9 of this act may assert an affirmative defense to liability
under this section if :
a. 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, and
b. the imposition of civil 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 under 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 based under Section 9 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 asserti ng 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 under Section 9 of this
act if the conduct for which the defendant has b een sued was an
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exercise of state or federal constitutional rights that personally
belong to the defendant.
D. Nothing in this section or this act shall limit or preclude
a defendant from asserting the unconstitutionality of any provision
of this act as a defense to liability under Section 9 of this act.
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:
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 action 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 i s
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 all parties.
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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. Notwithstanding any other la w, this state has sovereign
immunity, a political subdivision has governmental immunity, and
each officer and employee of this st ate or a political sub division
has official immunity in any action, claim, counterclaim, or any
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 th is state or
a political subdivisi on from enforcing any provision or applicati on
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 ot her 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, no attorney representing this
state, a political subdivision, or any officer or employee of this
state or a political subdivision is authorized or permitted to waive
an immunity described in subsection A or take any action that would
result in a waiver of that immunity.
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D. Notwithstanding any other law, n o court of this state shall
have jurisdiction to consider any action, claim, or counterclaim
that seeks declaratory or injunctive relief to prevent this state, a
political subdivisio n, 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 this
act.
E. Nothing in this section or this act shall be construed to
prevent a litigant from asserting the invalidity or
unconstitutionality of any prov ision or application of this act as a
defense to any action, claim, or counterclaim brought against that
litigant.
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 numberi ng, 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
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federal court, shall be jointly and severally liable for court costs
and attorney fees of the prevailing party.
B. For purposes of this section, a party is considered a
prevailing party with respect to a claim or cause of action if a
state or federal court:
1. Dismisses that claim or cause of 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
2. Enters judgment in the part y’s favor on that 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 re view expires.
D. It is not a defense to an action brought under subsection C
of this section that:
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1. A prevailing party under this section failed to seek
recovery of court costs or attorney fees in the underlying actio n;
2. The court in the underlying action 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 doctrines of issue or claim
preclusion.
SECTION 14. NEW LAW A new section of law to be codified
in the Oklahoma Statutes a s Section 1-745.44 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. Mindful of Leavitt v. Ja ne 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 co ntrolling, 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 provision s in this act to every person, group of
persons, or circumstances, are severable from each other.
B. If any application of any provision in this act to any
person, group of persons, or circumstances is found by a court to be
invalid, preempted, unconstitutional, or to impose an undue burden
on any woman or group of women seeking an a bortion, then the
remaining applications of that provision to all other persons and
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circumstances shall be severed and preserved, and shall remain in
effect. All constitutionally valid applications of the provisions
in this act, and every application of t hose provisions that can be
enforced without imposing an undue burden on women s eeking
abortions, shall be severed from any applications that a court finds
to be invalid, preempted, unconstitutional, or to impose an undue
burden on women seeking abortions , and the valid applications 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 cas es, the
applications that do not present an undue burden shall be severed
from the remaining applications and shall remain in force, and sh all
be treated as if the Legislature had enacted a statute limited to
the persons, group of persons, or circumstances for which the
statute’s application does no t impose an undue burden.
C. The Legislature further declares that it would have enacted
this act, and each provision, section, subsect ion, sentence, clause,
phrase, or word, and all constitutional applications of the
provisions of this act, irrespective of the fact that any provision,
section, subsection, sentence, clause, phrase, or word, or
applications of this act were to be declared invalid, preempted,
unconstitutional, or to impose an undue burden.
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D. If any provision of this act is found by any cou rt to be
unconstitutionally vague, then the applications of that provision
that do not present c onstitutional vagueness problems shall be
severed and remain in force, consist ent with the severability
requirements of subsections A, B, and C of this section.
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 law making activity. A court that declines
to enforce or enjoins a state official from enforcing a statutory
provision does not rewrite a statute, as the statute continues to
contain the same words as before the court ’s decision. A judicial
injunction or declaration of unconstitutionality:
1. Is nothing more than an edict prohibiting enforcement that
may subsequently be vacated by a later court if that court has a
different understanding of the requirements of the Oklahoma
Constitution or United States Const itution;
2. Is not a formal amendment of th e language in a statute; and
3. No more rewrites 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 severability
requirements of subsections A, B, C, D, and E of this section, and
declares or finds any provision of this act facially
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unconstitutional, when there a re discrete applications of that
provision that can be enforced against a pers on, group of persons,
or circumstances witho ut violating federal law, the federal or state
constitutions, or imposing an undue burden on women seeking
abortions, then that provis ion shall be interpreted, as a matter of
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, the federal or
state constitutions, or impose an undue burden on women seeking
abortions, and every court sha ll adopt this saving construction of
that provision until the court ruling that pronounced the provision
facially unconstitutional is vacated or overruled.
SECTION 15. AMENDATORY 12 O.S. 2021, Section 1439, is
amended to read as fo llows:
Section 1439. The Oklahoma Citizens Participation 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 arises out of the sale
or lease of goods, services, or an insur ance product, insurance
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services, or a commercial transaction in which the intende d audience
is an actual or potential buyer or customer;
3. A legal action seeking recovery for bodily in jury, wrongful
death or survival or to statements made regarding that legal action;
or
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 9 of this act .
SECTION 16. AMENDATORY 51 O.S. 2021, Section 255, is
amended to read as follows:
Section 255. A. Nothing in this act shall be constr ued 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 of
Article 1, Section 2, and Artic le 2, 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, benefits, 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, bene fits, or exemptions”
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shall not include the d enial of government funding, benefits, or
exemptions. This provision does not in and of itself require
vouchers.
C. A civil action brough t under Section 9 of this act shall not
be subject to any provision of th e Oklahoma Religious Freedom Act .
SECTION 17. It being immediately necessary for the pr eservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
Passed the Senate the 10th day of March, 2022.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2022.
Presiding Officer of the House
of Representatives