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SENATE FLOOR VERSION
March 3, 2021
COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 778 By: Daniels, Bullard and
Stephens of the Senate
and
Lepak of the House
An Act relating to abortion; creating the Oklahoma
Abortion-Inducing Drug Risk Prot ocol Act; defining
terms; limiting provision of abortion -inducing drugs
to certain practitioners and procedures; prohibiting
provision through certain methods; req uiring certain
examination; stating criteria of examination;
providing for complication manag ement; requiring
scheduling and certain efforts of follow -up visit;
prohibiting provision of abortion-inducing drugs in
certain locations; requiring informed conse nt within
certain time period except under sp ecified
conditions; directing use of certain for m; stating
criteria of valid form; stating additional criteria;
requiring State Board of Medical Licensure and
Supervision to publish and update certain materials;
requiring qualified physician to provide cer tain
information; requiring completion and submi ssion of
certain report; stating required inclusions and
exclusions of report; requirin g certain reporting of
adverse event; stating c riteria of report; requiring
Department to prepare and submit certain repo rt;
deeming reports public records; prohibiting certain
actions relating to identity of woman; directing
reports to be made available t o certain entities;
requiring Department to com municate reporting
requirements; specifying additional reporting
requirements; requiring Department to create and
distribute certain forms; providing criminal
penalties; providing for certain civil remedies,
disciplinary sanctions and injunctive relief;
specifying certain judicial pro cedures; providing
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certain construction and i ntent; authorizing certain
intervention; providi ng severability; providing for
codification; and providing an effective date .
BE IT ENACTED BY THE PEOPLE OF TH E STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Sect ion 1-756.1 of Title 63, unless
there is created a duplication in numbering, reads as follows:
This act shall be kno wn and may be cited as the “Oklahoma
Abortion-Inducing Drug Risk Protocol Act”.
SECTION 2. NEW LAW A new section 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 follo ws:
As used in this act:
1. “Abortion” means the use or prescript ion 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 traum a or a
criminal assault on the pregnant female or h er unborn child;
2. “Abortion-inducing drug” means a medicine, drug or any othe r
substance prescribed or dispensed with the intent of terminating the
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pregnancy of a woman known to be pregnant, with knowledge that the
termination will with reasonable likel ihood cause the death of the
unborn child. This includes the off-label use of drugs known 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 t o cause 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 occur rence associated
with the use of a drug in human s, whether or not considered drug -
related. It does not include an adverse event or suspected 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 an associated physician agreement;
5. “Complication” means any adverse physical or psychological
condition arising from th e performance of an abortion which
includes, but is not limited to, uterine perforation, cervical
perforation, infection, heavy or uncontrolled bleeding, hemorrhage,
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blood clots resulting in pulmonary embolism or dee p vein thrombosis,
failure to actually t erminate the pregnancy, incomplete abortion
(retained tissue), pelvic inflammatory disease, endometritis, missed
ectopic pregnancy, cardiac arrest, respiratory arrest, renal
failure, metabolic disorder, shock, emboli sm, coma, placenta previa
in subsequent pregnancies, preterm delivery in subsequent
pregnancies, free fluid in the abdomen, hemolytic reaction due to
the administration of ABO-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 event as defined by the Food and Drug
Administration criteria provided in the Medwat ch Reporting System;
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 p eople, or
institutions defined under Section 1-701 of Title 63 of the Oklahoma
Statutes;
8. “Physician” means any person licen sed to practice medicine
in this state. The term includes medical doctors and doctors of
osteopathy;
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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 t o or otherwise providing or
prescribing an abort ion-inducing drug;
11. “Qualified physician” means a physician licensed in thi s
state who has the ability to:
a. identify and document a viable intrauterine pregnancy,
b. assess the gestational age of pregna ncy and to inform
the patient of gestational age -specific risks,
c. diagnose ectopic pregnancy,
d. determine blood type and adm inister RhoGAM if a woman
is Rh negative,
e. assess for signs of domestic abuse, reproduc tive
control, human trafficking and other signals of
coerced abortion,
f. provide surgical intervention or has entered into a
contract with another qualified physician to provide
surgical intervention, and
g. supervise and bear legal responsibility for any agent,
employee or contractor who is pa rticipating in any
part of procedure including, but not limited to, pre-
procedure evaluation and care;
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12. “Reasonable medical judgment” means a medical judgment that
would be made by a reasonably prudent physician knowledgeable about
the case and the tre atment possibilities with respect to the medical
conditions involved; and
13. “Unborn child” means an individual organism of the species
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 l aid out in this act. It shall be
unlawful for any manufacturer, supplier, phy sician, qualified
physician or any other person to provide any abortion -inducing drug
via courier, delivery or mail service.
SECTION 4. NEW LAW A new sect ion of law to be codified
in the Oklahoma Statutes as Section 1-756.4 of Title 63, unless
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 pregnancy exists;
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2. Determine the woman’s blood type, and if she is Rh negative,
be able to and offer to administer RhoGA M at the time of the
abortion;
3. Inform the patient that she may see the remain s of her
unborn child in the process of comp leting the 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 nega tivity, as diagnosed by the most accurate
standard of medical care.
B. A qualified physician providing an abortion-inducing drug
shall be credentialed and competent t o handle complication
management including emergency transfer, or shall have a signed
contract with an associated physici an 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
Supervision or by the State Department of Health. Every pregnant
woman to whom a qualified physician p rovides any abortion -inducing
drug shall be given the name and phone number of the ass ociated
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
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bleeding. The qualified p hysician shall make all reasonable efforts
to ensure that the woman returns for the sched uled appointment. A
brief description of th e 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 cod ified
in the Oklahoma Statutes as S ection 1-756.5 of Title 63, unless
there is created a duplication i n 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 gr ounds including, but not limited to,
elementary, secondary and institutions of higher edu cation in this
state.
SECTION 6. NEW LAW A new section of law t o 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 abo rtion-inducing drug is
provided to the pregnant woman, except if in reasonable medical
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judgment, compliance with this subsection would pose a greater risk
of:
1. The death of the pregnant woman; or
2. The substantial and irreversibl e physical impairment of a
major bodily function not including psycho logical 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 t o be on the consent form as detailed in
paragraphs 1 through 6 of subsection E of this section;
2. The patient signs the “consent statement” described in
paragraph 11 of subsection 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 t o, the
following:
1. The probable gestational age of the unborn child as
determined by both patient history and by ultr asound results used to
confirm gestational age;
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2. A detailed description of the steps t o 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 additio nal 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 preve nt Rh
incompatibility in future pregnancies;
5. That the risks of complications from a chemical abortion
including incomplete abortion, increase with advancing gestat ional
age;
6. That it may be possible to reverse the effects of th e
chemical abortion sh ould she change her mind, but that time is of
the essence;
7. That she may see the rem ains of her unborn child in the
process of completing the abortion;
8. That initial studies suggest that children born a fter
reversing the effects of Mifeprex/mifeprist one have no greater risk
of birth defects than the general population;
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9. That initial studies suggest there is no increased risk of
maternal mortality a fter reversing the effects of
Mifeprex/mifepristone;
10. That information on an d assistance with reve rsing 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 initiale d by the patient:
a. that the patient understands that the abortion-
inducing drug regimen or procedure is in tended to end
her pregnancy and will result in the de ath 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
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
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unborn child, alternativ es 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 abortio n
obtained through the use of aborti on-inducing drugs is
available at www.abortionpillreversal.com, or you can
contact (877) 558-0333 for assistance in locating a
medical professional tha t can aide in the reve rsal of
an abortion.”,
f. that she has been pro vided access to state -prepared,
printed materials on informed consent for abortion and
the state-prepared and maintained website on informed
consent for abortion ,
g. if applicable, that s he has been given the name and
phone number of the associated physici an who has
agreed to provide medical care and treatment in the
event of complications associated with the a bortion-
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 a fter
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providing the abortion-inducing drug or drugs to
confirm that the pregnancy is completely terminated
and to assess the degree of bleeding and othe r
complications, and
i. that the patient has received or been given s ufficient
information to give her in formed consent to the
abortion-inducing drug regimen or procedure , and
j. that the patient has a private right of action to s ue
the qualified physician under the laws of this state
if she feels that she has been coerced or misled prior
to obtaining an abor tion, and how to access state
resources regarding her legal right to ob tain relief;
and
12. A “qualified physician declarati on”, which shall be signed
by the qualified phys ician, stating that the qualified physician has
explained the abortion -inducing drug or drugs to be used, has
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 co dified
in the Oklahoma Statutes as S ection 1-756.7 of Title 63, unless
there is created a duplication in nu mbering, reads as follows:
A. The State Board of Medical Licensure and Supervision shall
cause to be published in the state-prepared, printed materi als on
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informed consent for abortion and the state-prepared and maintained
website on informed consent for abortion the following statement:
“Information on the potential ability of qualified me dical
professionals to reverse the effects of an abortion obta ined through
the use of abortion-inducing drugs is available at
www.abortionpillreversal.com, or you can c ontact (877) 558-0333 for
assistance in locating a medi cal 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 pill revers al and provide her with the
state-prepared materials and website link as proscribed by Section 6
of this act.
SECTION 8. NEW LAW A new se ction of law to be codified
in the Oklahoma Statutes as Section 1-756.8 of Title 63, unless
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 k nowledge through the
compilation of relev ant data, a report of each drug -induced abortion
performed shall be made to the State Department of Healt h on forms
prescribed by it. The reports shall be completed by the hospital or
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other licensed facility in whi ch the abortion-inducing drug was
given, sold, dispensed, administered or otherwise provided or
prescribed; signed by the qualified physician who gave, sold,
dispensed, administered or otherwise provided or prescribed the
abortion-inducing drug; and transm itted 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;
5. The number of previous pregnancies, number of live births
and number of previous abortions of the pregnant woman;
6. The probable gestational age of the unborn child as
determined by both patient history and by ult rasound results used to
confirm the gestational age. T he report shall include the date of
the ultrasound and gestational age determine d on that date;
7. The abortion-inducing drug or drugs used, the date each was
provided to the pregnant woman and the re ason for the abortion, if
known;
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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 ass ess
bleeding and the date and r esults of any such follow -up examination,
and what reasonable efforts we re made by the qualified physici an to
encourage that she return for a follow-up examination if she did
not;
10. Whether the woman suffered any complicat ions, and what
specific complications arose and any foll ow-up treatment needed; and
11. The amount billed to cover the treatment for speci fic
complications including whether the treatment was billed to
Medicaid, private insurance, private pay or other method. This
shall include charges for any physician, hosp ital, emergency room,
prescription or other dru gs, laboratory tests and any other costs
for treatment rendered.
C. Reports required under this subsection shall not contain:
1. The name of the pregnant w oman;
2. Common identifiers su ch as her social secu rity number or
driver license number; or
3. Other information or identifiers that would make it possible
to identify, in any manner or under any circumstances, a woman who
has obtained or seeks to obtain a chemical abortion.
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D. If a qualified physician p rovides an abortion-inducing drug
to a pregnant woman for the purpose of inducing an abortion as
authorized in Sections 2 and 3 of this act, and if the qualified
physician knows that the woman who uses th e abortion-inducing drug
for the purpose of inducing an abortion experiences, during or after
the use of the abortion-inducing drug, an adverse 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 L icensure and
Supervision.
E. Any physician, qualified physician, associated physician or
other healthcare provider who tr eats a woman, either
contemporaneously to or at any time after the procedure, for an
adverse event or complication related to a chemic al abortion shall
make a report of the adverse event to the Department on forms
prescribed by it. The reports shall be co mpleted by the hospital or
other facility in which t he adverse event treatment was provided;
signed by the physician, qualified physic ian 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 prepar e a comprehensive annual
statistical report for the Legislature based upon the d ata gathered
from reports under this section. The aggregated data shall also be
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made available to the public by the Departm ent in a downloadable
format.
G. The Department shall summarize aggregate data from the
reports required under this act and submit the data to the Centers
for Disease Control and Prevention.
H. Reports filed pursuant t o this section shall be public
records and shall be available to the public in accordanc e 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 office s 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 n or any
employees thereof shall compare data conc erning abortions or
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 may 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.
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K. Copies of all reports filed under 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 professio nal organizations, licensed
physicians, hospitals, emergency rooms, abortion facilities,
clinics, ambulatory surg ical facilities and other healt hcare
facilities operating in this state.
M. Any physician including emergency medical personnel, who
treats a woman for complications or adverse event ari sing 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 complications or otherwise in an
emergency capacity shall make reasonable efforts to include all of
the required information t hat may be obtained without viola ting 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, read s as follows:
The State Department of Health shall create and distribute the
forms required by this act within sixty (60) days after the
effective date of this act. No provision of this act requiring the
reporting of information on forms published by the Department shall
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be applicable until ten (10) days after the requisite forms are
first created and distributed or until the effective date of t his
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 th e knowledge of the pregnant woman, is guilty
of a felony.
C. No criminal penalty may be assessed against the pre gnant
woman upon whom the drug -induced abortion is attempted, induced or
performed.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-756.11 of Title 63, unless
there is created a duplicati on 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;
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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 abort ion-inducing drug in
violation of this act. Such an action may be maintained by:
a. a woman to whom such an ab ortion-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 appropriate jurisdi ction.
The injunction shall prevent the def endant from providing
further abortion-inducing drugs in violation of this act.
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 al low a woman to proceed
using solely her initials or a pseudonym and m ay close any
proceedings in the c ase and enter other protective orders to
preserve the privacy of the woman upon whom the drug -induced
abortion was attempted, induced or performed.
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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 defen dant and the
court finds that the plaintiff ’s suit was frivolous and brought in
bad faith, the court may render judgment for reasonable attorn ey
fees in favor of the defendant against the plaintiff.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statu tes as Section 1-756.12 of Title 63, unless
there is created a duplic ation 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.
SECTION 13. NEW LAW A new sec tion of law to be codified
in the Oklahoma Statutes as Section 1 -756.13 of Title 63, unless
there is created a d uplication in numbering, r eads as follows:
The Legislature, by joint resolution, may appoint one or more of
its members, who sponsored or cospon sored 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.
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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, sect ions, subsections, sentences,
clauses, phrases or words of this act or the application thereof to
any person or circum stance is found to be unconstitutional, the same
is hereby declared to be severable and the balance of this act shall
remain effective not withstanding such unconstitutionality. The
Legislature hereby declare s that it would have passed this act, and
each provision, section, subsection, sentence, cl ause, phrase or
word thereof, irrespective of the fact that any one o r more
provisions, sections, subsections, sentences, clauses, phrases or
words be declared uncon stitutional.
SECTION 15. This act shall become effective November 1, 2021.
COMMITTEE REPORT BY: COMMITTEE ON APPROPRIATIONS
March 3, 2021 - DO PASS AS AMENDED