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STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
SENATE BILL 402 By: Hamilton
AS INTRODUCED
An Act relating to abortion; creating the Prenatal
Equal Protection Act; providing s hort title; stating
purpose of act; amending 21 O.S. 2021, Sections 652
and 691, which relate to crimes and punishments ;
modifying applicability o f provisions relating to
assault and battery with deadly weapon and homicide;
making certain conduct justifia ble; specifying
applicability of certain provisions; amending 12 O.S.
2021, Section 1053, which relates to wrongful death;
modifying applicability of certain provisions;
amending 63 O.S. 2021, Section 1 -738.3f, which
relates to civil actions; modifying applicability of
section; making act prospective ; providing for
codification; providing for noncodification; and
declaring an emergency .
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law not to be
codified in the Oklahoma Statutes reads as follows:
This act shall be known and may be cited as the “Prenatal Equal
Protection Act”.
SECTION 2. NEW LAW A new section of law not to be
codified in the Oklahoma Statut es reads as follows:
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Acknowledging the sanctity of innocent human life, created in
the image of God, the purpose of this act is:
1. To follow the Constitution of the United States, which
requires that “no state…shall deny to any person within its
jurisdiction the equal protection of the laws ”;
2. To fulfill such constitutional requirement by protecting the
lives of preborn persons with the sam e criminal and civil laws
protecting the lives of born persons by striking provisions that
permit willful prenatal homicide or assault;
3. To protect pregnant mothers from being pressured to abort by
striking provisions that may otherwise allow a person to direct,
advise, encourage, or solicit a mother to abort her child ; and
4. To ensure that all persons potentiall y subject to such laws
are entitled to due process protections.
SECTION 3. AMENDATORY 21 O.S. 2021, Section 652, is
amended to read as follows:
Section 652. A. Every person who intentionally and wrongfully
shoots another with or discharges any kind of firearm, with intent
to kill any person, including an unborn child as defined in Section
1-730 of Title 63 of the Oklahoma Statutes, shall upon conviction be
guilty of a felony punishable by imprisonment in the S tate
Penitentiary not exceeding life.
B. Every person who uses any veh icle to facilitate the
intentional discharge of any kind of firearm, c rossbow or other
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weapon in conscious disregard for the safety of any other person or
persons, including an unborn c hild as defined in S ection 1-730 of
Title 63 of the Oklahoma Statutes, shall upon conviction be guilty
of a felony punishable by imprisonment in the custody of the
Department of Corrections for a term not less than two (2) years nor
exceeding life.
C. Any person who commits any assault and battery upon another,
including an unborn child as defined in Section 1 -730 of Title 63 of
the Oklahoma Statutes, by means of any deadly weapon, or by such
other means or force as is likely to produce death, or in any ma nner
attempts to kill another, including an unborn child as defined in
Section 1-730 of Title 63 of the Oklahoma Statutes, or in resisting
the execution of any legal process, shall upon conviction be guilty
of a felony punishable by imprisonment in the Sta te Penitentiary not
exceeding life.
D. The provisions of this section shall not apply to:
1. Acts which cause the death of an unborn child if those acts
were committed during a legal abortion to which the pregnant woman
consented; or
2. Acts acts which are committed pursuant to usual and
customary standards of medical prac tice during diagnostic testing or
therapeutic treatment .
E. Under no circumstances shall the mother of the unborn child
be prosecuted for causing the death of the unborn child unless the
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mother has committed a crime that caused the death of the unborn
child.
SECTION 4. AMENDATORY 21 O.S. 2021, Section 691, is
amended to read as follows:
Section 691. A. Homicide is the killing of one human be ing by
another.
B. As used in this se ction, “human being” includes an unborn
child, as defined in Section 1-730 of Title 63 of the Oklahoma
Statutes.
C. Homicide shall not include :
1. Acts which cause the death of an unborn child if those acts
were committed during a legal abortion to which the pregnant woman
consented; or
2. Acts acts which are committed pur suant to the usual and
customary standards of medical practice during diagnostic testing or
therapeutic treatment .
D. Under no circumstances shall the mother of the unborn child
be prosecuted for causing the death of the unborn child u nless the
mother has committed a crime that caused the death of the unborn
child.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Sectio n 161 of Title 21, unless there is
created a duplication in n umbering, reads as follows:
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Conduct which would otherwise constitute an offense is
justifiable and not criminal when it is a lawful medical procedure:
1. Performed by a licensed physician;
2. Performed on a pregnant female to avert the death of the
pregnant female;
3. That results in the accidental or unintentional death of the
unborn child the pregnant female is carrying; and
4. Performed when all reasonable alternatives to save the life
of the unborn child:
a. are unavailable, or
b. were attempted unsuccessfully before the performance
of the medical procedure.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 696 of Title 21, unless there is
created a duplication in numbering, reads as fo llows:
A. Section 691 et seq. of Title 21 of the Oklahoma Statutes
applies even where the victim is an unbor n child.
B. Enforcement where the victim is an unborn child is subject
to the same presumptions , defenses, justifications, laws of parties,
immunities, and clemencies as would apply where the victim is a
person who had been born alive.
C. This section prevails over other law to the ex tent of any
conflict.
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SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 650.12 of Title 21, unless there
is created a duplication in numbering, reads as follows :
A. Section 641 et seq. of Title 21 of the Oklahoma Statutes
applies even where the victim is an unborn child.
B. Enforcement where the victim is an unborn child is subject
to the same presumptions, defenses, justifications, laws of parties,
immunities, and clemencies as woul d apply where the victim is a
person who had been born alive.
C. This section prevails over other law to the extent of any
conflict.
SECTION 8. AMENDATORY 12 O.S. 2021, Section 1053, is
amended to read as follows:
Section 1053. A. When the death of one is caused by the
wrongful act or omission of an other, the personal representative of
the former may maintain an action therefor against the latter, or
his or her personal representative if he or she is also deceased, if
the former might have maintained an action, had he or she lived,
against the latter, or his or her representative, for an injury for
the same act or omission. The action must be commenced within two
(2) years.
B. The damages recoverable in actions for wrongful death as
provided in this section shall include the following:
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1. Medical and burial expenses, which shall be distributed to
the person or governmental agency as defined in Section 5051.1 of
Title 63 of the Oklahoma Statutes who paid these expenses, or to the
decedent’s estate if paid by the estate. The provisions of this
paragraph shall not apply to the cost of an abortion in a ctions
maintained pursuant to subsection F of this section;
2. The loss of consortium and the grief of the surviving
spouse, which shall be distributed to the surviving spouse;
3. The mental pain and ang uish suffered by the decedent, which
shall be distributed to the surviving spouse and children, if any,
or next of kin in the same proportion as personal property of the
decedent. For the purposes of actions maintained pursuant to
subsection F of this sec tion, “next of kin” as used in this
paragraph shall mean the parent or grandparent who maintained the
action as provided for in paragraph 3 of subsection F of this
section;
4. The pecuniary loss to the survivors based upon properl y
admissible evidence wit h regard thereto including, but not limited
to, the age, occupation, earning capacity, health habits, and
probable duration of the decedent’s life, which must inure to the
exclusive benefit of the surviving spouse and children, if any, or
next of kin, and shall be distributed to them according to their
pecuniary loss. For the purposes of actions maintained pursuant to
subsection F of this section, “next of kin” as used in this
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paragraph shall mean the parent or grandparent who main tained the
action as provided for in paragraph 3 of subsection F of this
section; and
5. The grief and loss of companionship of the children and
parents of the decedent, which shall be distributed to them
according to their grief and loss of companionship .
C. In proper cases, as provided by Section 9.1 of Title 23 of
the Oklahoma Statutes, punitive or exemplary damages may also be
recovered against the person proximately causing the wrongful death
or the person’s representative if such person is deceased. Such
damages, if recovered, shall be distributed to the surviving spouse
and children, if any, or next of kin in the same proportion as
personal property of the decedent. For the purposes of actions
maintained pursuant to subsection F of this section, “next of kin”
as used in this paragraph shall mean the parent or grandparent who
maintained the action as provided for in paragraph 3 of subsection F
of this section.
D. Where the recovery is to be distributed according to a
person’s pecuniary loss or loss of companionship, the ju dge shall
determine the proper division.
E. The above-mentioned distributions shall be made after the
payment of legal expenses and costs of the action.
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F. 1. The provisions of this section shall also be available
for the death of an unborn person as de fined in Section 1-730 of
Title 63 of the Oklahoma Statutes.
2. The provisions of this subsection shall apply to acts wh ich
cause the death of an unborn person in utero if:
a. the physician who performed the abortion or the
referring physician fails to ob tain and document the
voluntary and informed consen t of the pregnant woman
pursuant to Section 1 -738.2 of Title 63 of the
Oklahoma Statutes,
b. the pregnant woman withdraws her consent to the
abortion prior to performance of the ab ortion,
c. the pregnant woman undergoes the abortion due to
coercion from a third party,
d. the physician fails to obtain and document proof of
age demonstrating that the pregnant woman is not a
minor, or, in the case of a minor, fails to obtain:
(1) parental consent to the aborti on pursuant to
Section 1-740.2 of Title 63 of the O klahoma
Statutes,
(2) proof that the pregnant woman, although a minor,
is emancipated, or
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(3) judicial authorization of the abortion without
parental notification pursuant to Secti on 1-740.3
of Title 63 of the Oklahoma Statutes,
e. the physician who perfor med the abortion causes the
woman physical or psychological harm, the possibility
of which she did not foresee or was not informed of at
the time of her consent,
f. the physician who performed the abortion fails to
screen the pregnant woman and document su ch screening
for risk factors associated with a heightened risk of
adverse consequences from abortion which a reasonably
prudent physician would screen for,
g. the physician fails to screen the pregnant wo man and
document such screening for physical or psy chological
impairment of judgment due to factors including, but
not limited to, drugs, alcohol, illness or fatigue,
h. the physician fraudulently induces the pregnant woman
to obtain the abortion or gives misleading or false
information in response to a pr egnant woman’s inquiry,
or
i. there exist any other circumstances whic h violate
state law.
The provisions of this paragraph shall not be construed to apply
to cases in which a phys ician licensed to practic e medicine in this
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state attempts, in a reasonably prudent manner, to prevent the death
of an unborn person or a pregnant woman.
3. A parent or grandparent of the deceased unborn person is
entitled to maintain an action against th e physician who caused th e
death of an unborn person under the conditions pr ovided by
subparagraphs a through i of paragraph 2 of this subsection ;
provided, however, the parent or grandparent may not maintain such
action if the parent or grandparent coerce d the mother of the unbor n
person to abort the unborn person.
4. Liability for wrongful death by the physician under this
section shall not be wa ived by the pregnant woman prior to
performance of the abortion. A physician shall not request, orally,
on a written form or in any ot her manner, that the pregnant woman
waive the liability of the physician for wrongful death related to
the abortion as a condition of performing an abortion .
5. Under no circumstances shall the mother of the unborn person
be found liable for causing the d eath of the unborn person unless
the mother has committed a crime that caused the death of the unborn
person.
SECTION 9. AMENDATORY 63 O.S. 2021, Section 1 -738.3f, is
amended to read as follows:
Section 1-738.3f. A woman upon whom an abortion has been
performed in negligent viola tion of Section 1-738.2, 1-738.3d, 1-
738.8, 1-740.2 or 1-740.4b of Title 63 of the Oklahoma Statutes, or
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the parent or legal guardian of the woman i f she is an unemancipated
minor, as defined in Section 1-740.1 of Title 63 of the Oklahoma
Statutes, may commence a civil action against the abortion provider,
against the prescriber of any drug or chemical intended to induce
abortion, and against any pers on or entity which referred the woman
to the abortion provider or prescriber and which knew or reasonably
should have known that the abortion provider or prescriber had acted
in violation of Section 1 -738.2, 1-738.3d, 1-738.8, 1-740.2 or 1-
740.4b of Title 63 of the Oklahoma Statutes for actual da mages and,
in cases of gross negligence, for punitive damages. The measure of
damages shall include damages for the mental anguish and emotional
distress of the plaintiff, in addition to all damages available for
the wrongful death of the child whose life was aborted in negligent
violation of Section 1-738.2, 1-738.3d, 1-738.8, 1-740.2 or 1-740.4b
of Title 63 of the Oklahoma Statutes , notwithstanding any exception
for abortion provided in Section 1053 of Title 12 of the Oklahoma
Statutes. Whether the individual or entity committed an abortion in
negligent violation of Se ction 1-738.2, 1-738.3d, 1-738.8, 1-740.2
or 1-740.4b of Title 63 of the Oklahoma Statutes shall be determined
by the trier of fact in the civil act ion by the greater weight of
the evidence. Unless the defendant can prove to the trier of fact
by the greater weight of the evidence that the abortion was
performed on a child who was already dead from natural causes before
the abortion, and that the defe ndant informed the plaintiff that the
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child was already dead at the time of the abortion, it shall be a
rebuttable presumption that if an abortion was performed, that the
child whose life was aborted was alive until the abort ion was
performed, and was capa ble eventually of living a normal human
lifespan had the abortion not occurred.
SECTION 10. NEW LAW A new section of law not to be
codified in the Oklahoma Statutes reads as follows:
This act is prospective only and s hall not apply to conduct
committed prior to the effect ive date of this act.
SECTION 11. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whe reof this act shall take effect and
be in full force from and after its passage and approval.
59-1-1473 DC 1/16/2023 12:12:50 PM