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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
ENGROSSED SENATE
BILL NO. 778 By: Daniels, Bullard, Stephens,
David, Rogers, Taylor, Jett
and Bergstrom of the Senate
and
Lepak of the House
[ abortion - creating the Oklahoma Abortion -Inducing
Drug Risk Protocol Act - effective date ]
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 Statute s as Section 1-756.1 of Title 63, unless
there is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the “Oklahoma
Abortion-Inducing Drug Risk Protocol Act ”.
SECTION 2. NEW LAW A new se ction of law to be codified
in the Oklahoma Statutes as Section 1 -756.2 of Title 63, unless
there is created a duplication in numbering, reads as follows:
As used in this act:
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1. “Abortion” means the use or prescription of any instrument,
medicine, drug or any other substance or device intentionally to
terminate the pregnancy of a female known to be pregnant with an
intention other than to increase the probability of a live birth, to
preserve the life or health of the child after live birth, to remove
an ectopic pregnancy or to remove a dead unborn child who died as
the result of a spontaneous miscarriage, accidental trauma or a
criminal assault on the pregnant female or her unborn child ;
2. “Abortion-inducing drug” means a medicine, drug or any other
substance prescribed or dispensed with the intent of terminating the
pregnancy of a woman known to be pregnant, with knowledge that the
termination will with reasonable likelihood cause the death of the
unborn child. This includes the off -label use of drugs k nown to
have abortion-inducing properties, which are prescribed specifically
with the intent of causing an abortion, such as mifepristone
(Mifeprex), misoprostol (Cytotec) and methotrexate. This definition
does not apply to drugs that may be known to caus e an abortion, but
which are prescribed for other medical indications, such as
chemotherapeutic agents and diagnostic drugs. The use of such drugs
to induce abortion is also known as “medical”, “medication”, “RU–
486”, “chemical”, “Mifeprex regimen” or “drug-induced” abortion;
3. “Adverse Event”, according to the Food and Drug
Administration, means any untoward medical occurrence associated
with the use of a drug in humans, whether or not considered drug -
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related. It does not include an adverse event or su spected adverse
reaction that, had it occurred in a more severe form, might have
caused death;
4. “Associated physician ” means a person licensed to practice
medicine in the state including medical doctors and doctors of
osteopathy, that has entered into a n associated physician agreement;
5. “Complication” means any adverse physical or psychological
condition arising from the performance of an abortion which
includes, but is not limited to, uterine perforation, cervical
perforation, infection, heavy or unc ontrolled bleeding, hemorrhage,
blood clots resulting in pulmonary embolism or deep vein thrombosis,
failure to actually terminate the pregnancy, incomplete abortion
(retained tissue), pelvic inflammatory disease, endometritis, missed
ectopic pregnancy, ca rdiac arrest, respiratory arrest, renal
failure, metabolic disorder, shock, embolism, coma, placenta previa
in subsequent pregnancies, preterm delivery in subsequent
pregnancies, free fluid in the abdomen, hemolytic reaction due to
the administration of AB O-incompatible blood or blood products,
adverse reactions to anesthesia and other drugs, subsequent
development of breast cancer, psychological complications such as
depression, suicidal ideation, anxiety, sleeping disorders, death
and any other adverse ev ent as defined by the Food and Drug
Administration criteria provided in the Medwatch Reporting System;
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6. “Gestational age” means the time that has elapsed since the
first day of the woman ’s last menstrual period, also known as “last
menstrual period” or “LMP”;
7. “Hospital” means an institution providing medical and
surgical treatment and nursing care for sick or injured people, or
institutions defined under Section 1 -701 of Title 63 of the Oklahoma
Statutes;
8. “Physician” means any person licensed to practice medicine
in this state. The term includes medical doctors and doctors of
osteopathy;
9. “Pregnant” or “pregnancy” means that female reproductive
condition of having an unborn child in the mother ’s uterus;
10. “Provide” or “provision” means, when used regarding
abortion-inducing drugs, any act of giving, selling, dispensing,
administering, transferring possession to or otherwise providing or
prescribing an abortion -inducing drug;
11. “Qualified physician” means a physician licensed in this
state who has the ability to:
a. identify and document a viable intrauterine pregnancy,
b. assess the gestational age of pregnancy and to inform
the patient of gestational age -specific risks,
c. diagnose ectopic pregnancy,
d. determine blood type and administer RhoGAM if a woman
is Rh negative,
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e. assess for signs of domestic abuse, reproductive
control, human trafficking and other signals of
coerced abortion,
f. provide surgical intervention or has entered into a
contract with another qualified physician to pro vide
surgical intervention, and
g. supervise and bear legal responsibility for any agent,
employee or contractor who is participating in any
part of procedure including, but not limited to, pre -
procedure evaluation and care;
12. “Reasonable medical judgme nt” means a medical judgment that
would be made by a reasonably prudent physician knowledgeable about
the case and the treatment possibilities with respect to the medical
conditions involved; and
13. “Unborn child” means an individual organism of the spec ies
homo sapiens, beginning at fertilization, until the point of being
born-alive as defined in Title 1 U.S.C., Section 8(b).
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.3 of Title 63, unless
there is created a duplication in numbering, reads as follows:
Abortion-inducing drugs shall only be provided by a qualified
physician following procedures laid out in this act. It shall be
unlawful for any manufacturer, supplier, physician, qualified
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physician or any other person to provide any abortion -inducing drug
via courier, delivery or mail service.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.4 of Title 63, unl ess
there is created a duplication in numbering, reads as follows:
A. The qualified physician providing an abortion -inducing drug
shall examine the woman in person, and prior to providing an
abortion-inducing drug, shall:
1. Independently verify that a p regnancy exists;
2. Determine the woman ’s blood type, and if she is Rh negative,
be able to and offer to administer RhoGAM at the time of the
abortion;
3. Inform the patient that she may see the remains of her
unborn child in the process of completing th e abortion; and
4. Document, in the woman ’s medical chart, the gestational age
and intrauterine location of the pregnancy, and whether she received
treatment for Rh negativity, as diagnosed by the most accurate
standard of medical care.
B. A qualified physician providing an abortion -inducing drug
shall be credentialed and competent to handle complication
management including emergency transfer, or shall have a signed
contract with an associated physician who is credentialed to handle
complications and be able to produce that signed contract on demand
by the pregnant woman, by the State Board of Medical Licensure and
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Supervision or by the State Department of Health. Every pregnant
woman to whom a qualified physician provides any abortion -inducing
drug shall be given the name and phone number of the associated
physician.
C. The qualified physician providing any abortion -inducing drug
or an agent of the qualified physician shall schedule a follow -up
visit for the woman at approximately seven (7) to fourteen (14) days
after administration of the abortion -inducing drug to confirm that
the pregnancy is completely terminated and to assess the degree of
bleeding. The qualified physician shall make all reasonable efforts
to ensure that the woman returns for the sc heduled appointment. A
brief description of the efforts made to comply with this subsection
including the date, time and identification by name of the person
making such efforts, shall be included in the woman ’s medical
record.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.5 of Title 63, unless
there is created a duplication in numbering, reads as follows:
Notwithstanding any other provision of this act or the laws of
this state, abortion-inducing drugs shall not be provided in any
school facility or on state grounds including, but not limited to,
elementary, secondary and institutions of higher education in this
state.
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SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.6 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. No abortion-inducing drug shall be provided without the
informed consent of the pregnant woman as described in this section
to whom the abortion -inducing drug is provided.
B. Informed consent to a chemical abortion shall be obtained at
least seventy-two (72) hours before the abortion -inducing drug is
provided to the pregnant woman, except if in reasonable medical
judgment, compliance with this subsection would pose a greater risk
of:
1. The death of the pregnant woman; or
2. The substantial and irreversible physical impairment of a
major bodily function not including psychological or emotional
conditions, of the pregnant woman.
C. A form created by the State Department of Health shall be
used by a qualified physician to obtain the consent required prior
to providing an abortion -inducing drug.
D. A consent form is not valid and consent is not sufficient,
unless:
1. The patient initials each entry, list, description or
declaration required to be on the consent form as detailed in
paragraphs 1 through 6 of subsection E of this section;
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2. The patient signs the “consent statement” described in
paragraph 11 of subs ection E of this section; and
3. The qualified physician signs the “qualified physician
declaration” described in paragraph 12 of subsection E of this
section.
E. The consent form shall include, but is not limited to, the
following:
1. The probable gest ational age of the unborn child as
determined by both patient history and by ultrasound results used to
confirm gestational age;
2. A detailed description of the steps to complete the chemical
abortion;
3. A detailed list of the risks related to the spec ific
abortion-inducing drug or drugs to be used including, but not
limited to, hemorrhaging, failure to remove all tissue of the unborn
child which may require an additional procedure, sepsis, sterility
and possible continuation of pregnancy;
4. Information about Rh incompatibility including that if she
has an Rh-negative blood type, she should receive an injection of Rh
immunoglobulin at the time of the abortion to prevent Rh
incompatibility in future pregnancies;
5. That the risks of complications from a chemical abortion
including incomplete abortion, increase with advancing gestational
age;
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6. That it may be possible to reverse the effects of the
chemical abortion should she change her mind, but that time is of
the essence;
7. That she may see the re mains of her unborn child in the
process of completing the abortion;
8. That initial studies suggest that children born after
reversing the effects of Mifeprex/mifepristone have no greater risk
of birth defects than the general population;
9. That initial studies suggest there is no increased risk of
maternal mortality after reversing the effects of
Mifeprex/mifepristone;
10. That information on and assistance with reversing the
effects of abortion-inducing drugs are available in the state -
prepared materials;
11. An “acknowledgment of risks and consent statement ” which
shall be signed by the patient. The statement shall include, but is
not limited to, the following declarations, which shall be
individually initialed by the patient:
a. that the patient understands that the abortion -
inducing drug regimen or procedure is intended to end
her pregnancy and will result in the death of her
unborn child,
b. that the patient is not being forced to have an
abortion, that she has the choice not to have the
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abortion and that she may withdraw her consent to the
abortion-inducing drug regimen even after she has
begun the abortion-inducing drug regimen,
c. that the patient understands that the chemical
abortion regimen or procedure to be used has specific
risks and may result in specific complications,
d. that the patient has been given the opportunity to ask
questions about her pregnancy, the development of her
unborn child, alternatives to abortion, the abortion -
inducing drug or drugs to be used and the risks and
complications inherent to the abortion -inducing drug
or drugs to be used,
e. that she was specifically told that “Information on
the potential ability of qualified medical
professionals to reverse the effects of an abortion
obtained through the use of abortion -inducing drugs is
available at www.abortionpillreversal.com, or you can
contact (877) 558-0333 for assistance in locating a
medical professional that can aide in the reversal of
an abortion.”,
f. that she has been provided access to state -prepared,
printed materials on informed consent for abortion and
the state-prepared and maintained website on informed
consent for abortion,
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g. if applicable, that she has been given the name and
phone number of the associated physician who has
agreed to provide medical ca re and treatment in the
event of complications associated with the abortion -
inducing drug regimen or procedure,
h. that the qualified physician will schedule an in -
person follow-up visit for the patient at
approximately seven (7) to fourteen (14) days afte r
providing the abortion -inducing drug or drugs to
confirm that the pregnancy is completely terminated
and to assess the degree of bleeding and other
complications, and
i. that the patient has received or been given sufficient
information to give her infor med consent to the
abortion-inducing drug regimen or procedure, and
j. that the patient has a private right of action to sue
the qualified physician under the laws of this state
if she feels that she has been coerced or misled prior
to obtaining an abortio n, and how to access state
resources regarding her legal right to obtain relief;
and
12. A “qualified physician declaration ”, which shall be signed
by the qualified physician, stating that the qualified physician has
explained the abortion -inducing drug or drugs to be used, has
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provided all of the information required in subsection E of this
section, and has answered all of the woman ’s questions.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Sect ion 1-756.7 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. The State Board of Medical Licensure and Supervision shall
cause to be published in the state -prepared, printed materials on
informed consent for abortion an d the state-prepared and maintained
website on informed consent for abortion the following statement:
“Information on the potential ability of qualified medical
professionals to reverse the effects of an abortion obtained through
the use of abortion-inducing drugs is available at
www.abortionpillreversal.com, or you can contact (877) 558 -0333 for
assistance in locating a medical professional that can aid in the
reversal of an abortion. ”
B. On an annual basis, the State Board of Medical Licensure and
Supervision shall review and update, if necessary, the statement
required in subsection A of this Section.
C. As part of the informed consent counseling required in
Section 5 of this act, the qualified physician shall inform the
pregnant woman about abortion pi ll reversal and provide her with the
state-prepared materials and website link as proscribed by Section 6
of this act.
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SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.8 of Title 63, u nless
there is created a duplication in numbering, reads as follows:
A. For the purpose of promoting maternal health and adding to
the sum of medical and public health knowledge through the
compilation of relevant data, a report of each drug -induced abortion
performed shall be made to the State Department of Health on forms
prescribed by it. The reports shall be completed by the hospital or
other licensed facility in which the abortion -inducing drug was
given, sold, dispensed, administered or otherwise pr ovided or
prescribed; signed by the qualified physician who gave, sold,
dispensed, administered or otherwise provided or prescribed the
abortion-inducing drug; and transmitted to the Department within
fifteen (15) days after each reporting month.
B. Each report shall include, at minimum, the following
information:
1. Identification of the qualified physician who provided the
abortion-inducing drug;
2. Whether the chemical abortion was completed at the hospital
or licensed facility in which the abortion -inducing drug was
provided or at an alternative location;
3. The referring physician, agency or service, if any;
4. The pregnant woman ’s age and race;
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5. The number of previous pregnancies, number of live births
and number of previous abortions of the pr egnant woman;
6. The probable gestational age of the unborn child as
determined by both patient history and by ultrasound results used to
confirm the gestational age. The report shall include the date of
the ultrasound and gestational age determined on t hat date;
7. The abortion-inducing drug or drugs used, the date each was
provided to the pregnant woman and the reason for the abortion, if
known;
8. Preexisting medical conditions of the pregnant woman which
would complicate her pregnancy, if any;
9. Whether the woman returned for a follow -up examination to
determine completion of the abortion procedure and to assess
bleeding and the date and results of any such follow -up examination,
and what reasonable efforts were made by the qualified physician to
encourage that she return for a follow -up examination if she did
not;
10. Whether the woman suffered any complications, and what
specific complications arose and any follow -up treatment needed; and
11. The amount billed to cover the treatment for specific
complications including whether the treatment was billed to
Medicaid, private insurance, private pay or other method. This
shall include charges for any physician, hospital, emergency room,
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prescription or other drugs, laboratory tests and any other cost s
for treatment rendered.
C. Reports required under this subsection shall not contain:
1. The name of the pregnant woman;
2. Common identifiers such as her social security number or
driver license number; or
3. Other information or identifiers that wou ld make it possible
to identify, in any manner or under any circumstances, a woman who
has obtained or seeks to obtain a chemical abortion.
D. If a qualified physician provides an abortion -inducing drug
to a pregnant woman for the purpose of inducing an a bortion as
authorized in Sections 2 and 3 of this act, and if the qualified
physician knows that the woman who uses the abortion -inducing drug
for the purpose of inducing an abortion experiences, during or after
the use of the abortion -inducing drug, an ad verse event, the
qualified physician shall provide a written report of the adverse
event within three (3) days of the event to the Food and Drug
Administration via the Medwatch Reporting System, and to the
Department and to the State Board of Medical Licen sure and
Supervision.
E. Any physician, qualified physician, associated physician or
other healthcare provider who treats a woman, either
contemporaneously to or at any time after the procedure, for an
adverse event or complication related to a chemical a bortion shall
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make a report of the adverse event to the Department on forms
prescribed by it. The reports shall be completed by the hospital or
other facility in which the adverse event treatment was provided;
signed by the physician, qualified physician or other healthcare
provider who treated the adverse event; and transmitted to the
Department within (15) days after each reporting month.
F. The Department shall prepare a comprehensive annual
statistical report for the Legislature based upon the data ga thered
from reports under this section. The aggregated data shall also be
made available to the public by the Department in a downloadable
format.
G. The Department shall summarize aggregate data from the
reports required under this act and submit the da ta to the Centers
for Disease Control and Prevention.
H. Reports filed pursuant to this section shall be public
records and shall be available to the public in accordance with the
confidentiality and public records reporting laws of this state.
Copies of all reports filed under this subsection shall be available
to the State Board of Medical Licensure and Supervision, State Board
of Pharmacy, state law enforcement offices and child protective
services for use in the performance of their official duties.
I. Absent a valid court order or judicial subpoena, neither the
Department, any other state department, agency or office nor any
employees thereof shall compare data concerning abortions or
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abortion complications maintained in an electronic or other
information system file with data in any other electronic or other
information system with the intention of identifying, in any manner
or under any circumstances, a woman obtaining or seeking to obtain a
drug-induced abortion.
J. Statistical information that ma y reveal the identity of a
woman obtaining or seeking to obtain a drug -induced abortion shall
not be publicly disclosed by the Department, any other state
department, agency, office or any employee or contractor thereof.
K. Copies of all reports filed und er this section shall be
available to the Department and the State Board of Medical Licensure
and Supervision for use in the performance of its official duties.
L. The Department shall communicate the reporting requirements
in this section to all medical professional organizations, licensed
physicians, hospitals, emergency rooms, abortion facilities,
clinics, ambulatory surgical facilities and other healthcare
facilities operating in this state.
M. Any physician including emergency medical personnel, who
treats a woman for complications or adverse event arising from an
abortion, shall file a written report as required by this section of
this act with the Department.
N. A physician filing a written report with the Department
after treating a woman for comp lications or otherwise in an
emergency capacity shall make reasonable efforts to include all of
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the required information that may be obtained without violating the
privacy of the woman.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.9 of Title 63, unless
there is created a duplication in numbering, reads as follows:
The State Department of Health shall create and distribute the
forms required by this act within sixty (60) days after t he
effective date of this act. No provision of this act requiring the
reporting of information on forms published by the Department shall
be applicable until ten (10) days after the requisite forms are
first created and distributed or until the effective date of this
act, whichever is later.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.10 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. A person who intentionally, knowingly or recklessly violates
any provision of this act is guilty of a misdemeanor.
B. A person who intentionally, knowingly or recklessly violates
any provision of this act by fraudulent use of an abortion -inducing
drug, with or without the knowledge of the pregnant woman, is guilty
of a felony.
C. No criminal penalty may be assessed against the pregnant
woman upon whom the drug -induced abortion is attempted, induced or
performed.
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SECTION 11. NEW LAW A new s ection of law to be codified
in the Oklahoma Statutes as Section 1 -756.11 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. In addition to whatever remedies are available under the
common or statutory law of this state, failure to comply with the
requirements of this act shall:
1. Provide a basis for a civil malpractice action for actual
and punitive damages;
2. Provide a basis for a professional disciplinary action;
3. Provide a basis for recovery for the woman ’s survivors for
the wrongful death of the woman; and
4. Provide a basis for a cause of action for injunctive relief
against a person who has provided an abortion -inducing drug in
violation of this act. Such an action may be maintained by:
a. a woman to whom such an abortion-inducing drug was
provided,
b. a person who is the spouse, parent or guardian of, or
a current or former licensed health care provider of,
a woman to whom an abortion -producing drug was
provided, or
c. a prosecuting attorney with appropriat e jurisdiction.
The injunction shall prevent the defendant from providing
further abortion-inducing drugs in violation of this act.
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B. No civil liability may be assessed against the pregnant
woman upon whom the drug -induced abortion is attempted, induced or
performed.
C. When requested, the court shall allow a woman to proceed
using solely her initials or a pseudonym and may close any
proceedings in the case and enter other protective orders to
preserve the privacy of the woman upon whom the drug -induced
abortion was attempted, induced or performed.
D. If judgment is rendered in favor of the plaintiff, the court
shall also render judgment for reasonable attorney fees in favor of
the plaintiff against the defendant.
E. If judgment is rendered in favor of the defendant and the
court finds that the plaintiff ’s suit was frivolous and brought in
bad faith, the court may render judgment for reasonable attorney
fees in favor of the defendant against the plaintiff.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.12 of Title 63, unless
there is created a duplication in numbering, reads as follows:
A. Nothing in this act shall be construed as creating or
recognizing a right to abortion.
B. It is not the intention of this act to make lawful an
abortion that is otherwise unlawful.
C. Nothing in this act repeals, replaces or otherwise
invalidates existing federal or state laws, regulations or policies.
SB778 HFLR Page 22
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SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.13 of Title 63, unless
there is created a duplication in numbering, reads as follows:
The Legislature, by joint resolution, may appoint one or more of
its members, who sponsored or cosponsored this act in his or her
official capacity, to intervene as a matter of right in any case in
which the constitutionality of this act is challenged.
SECTION 14. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1 -756.14 of Title 63, unless
there is created a duplication in numbering, reads as follows:
If any one or more provisions, sections, subsections, sentences,
clauses, phrases or words of this act or the application thereof to
any person or circumstance is found to be unconstitutional, the same
is hereby declared to be severable and the balance of this act shall
remain effective notwithstanding such unconstitutionality. The
Legislature hereby declares that it would have passed this act, a nd
each provision, section, subsection, sentence, clause, phrase or
word thereof, irrespective of the fact that any one or more
provisions, sections, subsections, sentences, clauses, phrases or
words be declared unconstitutional.
SECTION 15. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON APPROPRIATIONS AND BUDGET, dated
04/15/2021 - DO PASS, As Amended and Coauthored.