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STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
SENATE BILL 834 By: Daniels
AS INTRODUCED
An Act relating to abortion; amending 21 O.S. 2021,
Section 861, which relates to crimes and punishments;
adding and modifying circumstances under which
certain acts are not criminal offenses; listing
additional acts that are not cri minal offenses;
requiring certain reporting of abortion; defining
terms; amending Section 1, Chapter 11, O.S.L. 2022
(63 O.S. Supp. 2022, Section 1-731.4), which relates
to abortion; adding and modifying definitions;
clarifying applicability of certain provisi on; adding
and modifying exceptions to certain prohibition;
removing duplicative language; requiring certain
reporting of abortion; amending Section 2, Chapter
190, O.S.L. 2022 (63 O.S. Supp. 2022, Section 1-
745.32), which relates to definitions used in the
Oklahoma Heartbeat Ac t; defining terms; amending
Section 3, Chapter 190, O.S.L. 2022 (63 O .S. Supp.
2022, Section 1-745.33), which relates to d etermining
presence of fetal heartbeat; clarifying applicability
of certain provision; adding and updating statutory
references; amending Section 4, Chapter 190, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1 -745.34), which
relates to abortion prohibition if heartbeat
detected; clarifying applicability of certain
provision; adding and updating statutory refere nces;
amending Section 5, Chapter 190, O.S.L. 2022 (63 O.S.
Supp. 2022, Section 1-745.35), which relates to
medical emergency; modifying exception; updating
statutory references; adding certain exception;
requiring certain reporting of abortion; amending
Section 1, Chapter 321, O.S.L. 2022 (63 O.S. Supp.
2022, Section 1-745.51), which relates to
definitions; defining and modifying terms; amending
Section 2, Chapter 3 21, O.S.L. 2022 (63 O.S. Supp.
2022, Section 1-745.52), which relates to abortion
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prohibition; clarifying applicabilit y of certain
provision; modifying exceptions; updating statutory
references; requiring certain reporting of abortion;
requiring abortion performed under certain exce ptions
to be reported to State Department of Health on
certain form; restricting type of information
requested; requiring abortion provider to state
proper exception and include other required
information; requiring Department to compile reported
information into annual statistical report ; directing
certain publication and submission of report;
requiring promulgation of certain rules; repealing 63
O.S. 2021, Section 1-733, which relates to self-
induced abortions; and de claring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 21 O.S. 2021, Section 861, is
amended to read as follows:
Section 861. A. Every person who administers to any woman , or
who prescribes for any woman, or advises or procures an y woman to
take any medicine, drug or substance, or uses or employs any
instrument, or other means whatever, with i ntent thereby to procure
the miscarriage of such woman, unless the:
1. The same is necessary to preserve her the life of a pregnant
woman in a medical emergency as defined in subsection E of this
section; or
2. The pregnancy is the result of :
a. rape or sexual assault that has been reported to law
enforcement, or
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b. incest of a minor that has been reported to law
enforcement,
shall be guilty of a felony punishable by impriso nment in the State
Penitentiary for not less than tw o (2) years nor more than five (5)
years.
B. 1. The use, prescription, administration, procu ring, or
selling of any type of contraception shall not be a violation of
subsection A of this section.
2. An act related to in vitro fertilization or otherwise
related to the diagnosis or treatment of infertility or the
preservation of fertility by a licensed healthcare provider acting
lawfully and within the scope of his or her practice shall not be a
violation of subsection A of this section .
3. An act is not a violation of subsection A of this section if
performed with the purpose to:
a. save the life or preserve the health of the unborn
child,
b. remove a dead unborn child whose death was caused by
spontaneous abortion , or
c. remove an ectopic pregnancy.
C. Any abortion performed under a n exception provided by
subsection A of this section or performed to remove an ectopic
pregnancy shall be reported by the abortion provider to the State
Department of Health in accordance with Section 11 of this act.
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D. As used in this section:
1. “Medical emergency” means a condition that, in reasonable
medical judgment:
a. cannot be remedied by delivery of the child , and
b. so complicates the medical condition of the preg nant
woman as to necessitate the immediate abortion of her
pregnancy to avert her d eath or for which a delay will
create serious risk of substantial and irreversible
physical impairment of a major b odily function, not
including psychological or emotional c onditions. A
condition is not a medical e mergency if it is based on
a claim, diagnosis, or determination that the woman
may engage in conduct which she intends to result in
her death or in the subs tantial and irreversible
physical impairment of a major bo dily function; and
2. “Reasonable medical judgment ” means a medical judgment,
based upon the facts known to the physician at t he time, that would
be made by a reasonably prud ent physician who is knowledgeable about
the case and the treatment possibilities with respect to the medical
conditions involved.
SECTION 2. AMENDATORY Section 1, Chapter 11, O.S.L. 2022
(63 O.S. Supp. 2022, Section 1-731.4), is amended to read as
follows:
Section 731.4. A. As used in this section:
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1. The terms “abortion” and “unborn child” shall have the same
meaning as provided by Section 1-730 of Title 63 of the Oklahoma
Statutes “Abortion” means the act of using, prescribing,
administering, procuring, or selling of any i nstrument, medicine,
drug, or any other substance, device, or means with the purpose to
terminate the pregnancy of a wom an, with knowledge that the
termination by any of those means will with reasonable likelihood
cause the death of an unborn child. It does not include the use,
prescription, administration, procuring, or selling of any type of
contraception. It does not include any act related to in vitro
fertilization or otherwise related to the diagnosis or treatment of
infertility or the preservation of fertility by a licensed
healthcare provider acting lawfully and within the scope of his or
her practice. An act is not an abortion if the act is performed
with the purpose to:
a. save the life or preserve the h ealth of the unborn
child,
b. remove a dead unborn child whose death was caused by
spontaneous abortion , or
c. remove an ectopic pregnancy; and
2. “Medical emergency” means a condition which that, in
reasonable medical judgment :
a. cannot be remedied by delivery of the child in which
an abortion is necessary to preserve the life of a
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pregnant woman whose life is endangered by a physical
disorder, physical illness or physical injury
including a life-endangering physical condition caused
by or arising from the pregnancy itself, and
b. so complicates the medical condition of the pregnant
woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will
create serious risk of substantial and irreversible
physical impairment of a major bodily function, not
including psychological or emotional conditions. A
condition is not a medical e mergency if it is based on
a claim, diagnosis, or determination that the woman
may engage in conduct which she intends to result in
her death or in the substantial and irreversible
physical impairment of a major bodily function ;
3. “Reasonable medical judgment ” means a medical judgment,
based upon the facts known to the physician at the tim e, that would
be made by a reasonably prudent physi cian who is knowledgeable about
the case and the treatment possibilities with respect to the medical
conditions involved; and
4. “Unborn child” means a human fetus or embryo in any stage of
gestation from fertilization until birth .
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B. 1. Notwithstanding any other provision of law, a person
shall not purposely perform, induce, or attempt to perform or induce
an abortion except to save:
1. To preserve the life of a pregnant woman in a medical
emergency as defined in subsection A of this section ; or
2. If the pregnancy is the result of :
a. rape or sexual assault that has been reported to law
enforcement, or
b. incest of a minor that has been reported to law
enforcement.
2. C. 1. A person convicted of performing or attempting to
perform an abortion shall be guilty of a felony punishable by a fine
not to exceed One Hundred Thousand Dollars ($100,000.00), or by
confinement in the custody of the D epartment of Correcti ons for a
term not to exceed ten (10) years, or by such fine and imprisonment.
3. 2. This section does not:
a. authorize the charging or conviction of a woman with
any criminal offense in the death of her own unborn
child, or
b. prohibit the sale, use, pr escription or administration
of a contraceptive measure, drug or chemical if the
contraceptive measure, drug or chemical is
administered before the time when a pregnancy could be
determined through conventi onal medical testing and if
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the contraceptive measure, drug or chemical is sold,
used, prescribed or administered in accordance with
manufacturer instructions.
4. 3. It is an affirmative defense to prosecution under this
section if a licensed physician provi des medical treatment to a
pregnant woman which results in the accidental or unintentional
injury or death to the unbo rn child.
D. Any abortion performed or induced under an exception
provided by subsection B of this section or performed to remove an
ectopic pregnancy shall be reported by the abortion provider to the
State Department of Health in accordance with Section 11 of this
act.
SECTION 3. AMENDATORY Section 2, Chapter 190, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1-745.32), is amended to read as
follows:
Section 1-745.32. As used in this act:
1. “Abortion” means the act of using, prescribing,
administering, procuring, or selling of any i nstrument, medicine,
drug, or any other substance, device, or means with the purpose to
terminate the pregnancy of a woman , with knowledge that the
termination by any of t hose means will with reasonable likelihood
cause the death of an unborn child. It does not include the use,
prescription, administration, procuring, or selling of any type of
contraception. It does not include any act related to in vitro
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fertilization or otherwise related to the diagnosis or treatment of
infertility or the preservation of fertility by a licensed
healthcare provider acting lawfully and within the scope of his or
her practice. An act is not an abortion if the act is performed
with the purpose to:
a. save the life or preserve the healt h of the unborn
child,
b. remove a dead unborn child whose death was caused by
spontaneous abortion , or
c. remove an ectopic pregnancy;
2. “Fetal heartbeat” means cardiac activity or the steady and
repetitive rhythmic contraction of the fetal heart within the
gestational sac;
2. 3. “Gestational age” means the amount of time that has
elapsed from the first day of a woman’s last menstrual period;
3. 4. “Gestational sac” means the structure comprising the
extraembryonic membranes that envelop the unborn child and that is
typically visible by ultrasound after the fourth week of pregnancy;
4. 5. “Medical emergency” means a condition that, in reasonable
medical judgment:
a. cannot be remedied by delivery of the child , and
b. so complicates the medical condition of the pr egnant
woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will
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create serious risk of substantial and irrevers ible
physical impairment of a major b odily function, not
including psychological or emotional conditions. A
condition is not a medical e mergency if it is based on
a claim, diagnosis, or determination that the woman
may engage in conduct which she intends to result in
her death or in the subs tantial and irreversible
physical impairment of a major bodily function;
6. “Physician” means an individual licensed to practice
medicine in this state including a medical doctor and a doctor of
osteopathic medicine ;
5. 7. “Pregnancy” means the human female reproductive condition
that:
a. begins with fertiliz ation,
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. 8. “Reasonable medical judgment ” means a medical judgment,
based upon the facts known to the physi cian at the time, that would
be made by a reasonably prudent physician who is knowledgeable about
the case and the treatment possibilities with respect to the medi cal
conditions involved;
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9. “Standard medical practice” means the degree of skill, care,
and diligence that an obstetricia n of ordinary judgment, learning,
and skill would employ in like circumstances;
7. 10. “Unborn child” means a human fetus or embryo in any
stage of gestation from fertili zation until birth; and
8. 11. “Woman” and “women” include any person whose biologica l
sex is female including any person with XX chromosomes and any
person with a uterus, regardless of any gender identit y that the
person attempts to assert or claim .
SECTION 4. AMENDATORY Section 3, Chapter 190, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1 -745.33), is amended to read as
follows:
Section 1-745.33. A. For the purposes of determining the
presence of a fetal heartbeat under this section, “standard medical
practice” includes employing the appropriate means of detecting the
heartbeat based on the estimated gestational age of the unborn child
and the condition of the woman and her pregnancy.
B. Except as provided by Sections 5 and 6 of this act Sections
1-745.35 and 1-745.36 of this title and Section 7 of this act, an
abortion may not be performed or, induced, or attempted to be
performed or induced on a pregnant woman un less a physician has
determined, in accordance with this section, whether the woman’s
unborn child has a detectable fetal heartbeat.
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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 reasonable
understanding of standard medical practice; and
2. Appropriate for the estimated gestational age of the unbo rn
child and the condition of the pregnant wom an and her pregnancy.
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 5. AMENDATORY Section 4, Chapter 190, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1 -745.34), is amended to read as
follows:
Section 1-745.34. A. Except as provided by Sections 5 and 6 of
this act Sections 1-745.35 and 1-745.36 of this title and Section 7
of this act, a physician shall not knowingly perform or, induce, or
attempt to perform or induce an abortion on a pregnant woman if the
physician detected a fetal heartbeat for th e unborn child as
required by Section 3 of this act Section 1-745.33 of this title or
failed to perform a test to detect a fetal heartbeat.
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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 lim ited to
any provision that restricts or regulates an abortion by a
particular method or during a particular stage of pregnancy.
SECTION 6. AMENDATORY Section 5, Chapter 190, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1 -745.35), is amended to read as
follows:
Section 1-745.35. A. Sections 3 and 4 of this act Sections 1-
745.35 and 1-745.36 of this title shall not apply if a physician
believes a medical emergency exists that prevents complian ce with
this act an abortion is necessary to preserve the life of a pregnant
woman in a medical emergency as defined in Section 1-745.32 of this
title.
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 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-745.35a of Title 63, unless
there is created a duplication in numbering, reads as fo llows:
Sections 1-745.33 and 1-745.34 of Title 63 of the Oklahoma
Statutes shall not apply if the pregnancy is the result of:
1. Rape or sexual assault that has been reported to law
enforcement; or
2. Incest of a minor that has been reported to law enforceme nt.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Se ction 1-745.36a of Title 63, unless
there is created a du plication in numbering, reads as follows:
Any abortion performed or induced under an exception provided by
Section 1-745.35 or 1-745.36 of this title or Section 7 of this act
or performed to remove an ec topic pregnancy shall be reported by the
abortion provider to the State Department of Health in accordance
with Section 11 of this act.
SECTION 9. AMENDATORY Section 1, Chapter 321, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1-745.51), is amended to read as
follows:
Section 1-745.51. As used in this act:
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1. “Abortion” means the act of using, prescribing,
administering, procuring, or selling of any inst rument, medicine,
drug, or any other substance, device, or means with the purpose to
terminate the pregnancy of a woman, with knowledge that the
termination by any of those means will with reasonable likelihood
cause the death of an unborn child. It does not include the use,
prescription, administration, proc uring, or selling of Plan B,
morning-after pills, or any other type of contraception or emergency
contraception. It does not include any act related to in vitro
fertilization or otherwise related to the diagnosis or treatment of
infertility or the preservation of fertility by a licensed
healthcare provider acting lawfully and within the scope of his or
her practice. An act is not an abortion if the act is performed
with the purpose to:
a. save the life or preserve the health of the unborn
child,
b. remove a dead unborn child whose death was caused by
spontaneous abortion , or
c. remove an ectopic pregnancy;
2. “Fertilization” means the fusion of a human spermatozoon
with a human ovum;
3. “Medical emergency” means a condition in which an abortion
is necessary to preserve the life of a pregnant woman whose life is
endangered by a physical disorder, physical illness, or physical
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injury, including a life-endangering physical condition caused by or
arising from the pregnancy itself that, in reasonable medical
judgment:
a. cannot be remedied by delivery of the child , and
b. so complicates the medical condition of the pregnant
woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will
create serious risk of substanti al and irreversible
physical impairment of a major bodily function, not
including psychological or emotional conditions. A
condition is not a medical e mergency if it is based on
a claim, diagnosis, or det ermination that the woman
may engage in conduct whi ch she intends to result in
her death or in the substantial and irreversible
physical impairment of a major bodily function ;
4. “Reasonable medical judgment ” means a medical judgment,
based upon the facts known to the physician at the time, that would
be made by a reasonably prudent physician who is knowledgeable about
the case and the treatment possibilities with respect to the medical
conditions involved;
4. 5. “Unborn child” means a human fetus or embryo in any stage
of gestation from fertilizatio n until birth; and
5. 6. “Woman” and “women” include any person whose biological
sex is female, including any person with XX chromosomes and any
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person with a uterus, regardless of any gender identity that the
person attempts to assert or claim.
SECTION 10. AMENDATORY Section 2, Chapter 321, O.S.L.
2022 (63 O.S. Supp. 2022, Section 1-745.52), is amended to read as
follows:
Section 1-745.52. A. Except as provided by Section 3 of this
act Section 1-745.53 of this title, a person shall not knowingly
perform or, induce, or attempt to perform or induce an abortion
unless:
1. The abortion is necessary to save preserve the life of a
pregnant woman in a medical emergency; or
2. The pregnancy is the result of:
a. rape, or sexual assault that has been reported to law
enforcement, or
b. incest of a minor that has been reported to law
enforcement.
B. Any abortion performed or induced under an exception
provided by subsection A of this section or Section 1-745.53 of this
title or performed to remove an ectopic pregnancy shall be reported
by the abortion provider to the Sta te Department of Health in
accordance with Section 11 of this act.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1-738r of Title 63, unless there
is created a duplicati on in numbering, reads as follows:
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A. Any abortion performed or induced under an exception
provided by Section 861 of Title 21 of the Oklahoma St atutes,
Section 731.4 of Title 63 of the Oklahoma Statutes, Section 1-745.31
et seq. of Title 63 of the Oklahoma Statutes , or Section 1-745.51 of
Title 63 of the Oklahoma Statutes shall be reported by the abortion
provider to the State Department of Healt h on a form prescribed by
the State Commissioner of Health. The form shall not request the
name of the woman who obtained the abortion or any other potentially
identifying information that could lead to the ide ntification of the
woman.
B. The abortion provider shall state on the form the specific
exception under which the abortion was performed and shall provide a
detailed explanation of the justification for performing such
abortion including any relevant supporting documentation. The
completed form shall include all other infor mation as may be
required by the Commissioner.
C. The Department shall compile the informatio n received under
this section into an annual statistical report which shall be
published on the Department’s Internet website and submitted to the
President Pro Tempore of th e Senate and the Speaker of the House of
Representatives each year.
D. The Commissioner shall promulgate rules to implement this
section. Such rules shall include, but not limited to:
1. The manner of reporting ;
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2. Information to be reported ; and
3. Patient privacy protections that ensure the anonymity of
women who obtain an abortion under an exception provided by Section
861 of Title 21 of the Oklahoma Statutes, Section 731.4 of Title 63
of the Oklahoma Statutes, Section 1-745.31 et seq. of Title 63 of
the Oklahoma Statutes, or Section 1-745.51 of Title 63 of the
Oklahoma Statutes.
SECTION 12. REPEALER 63 O.S. 2021, Section 1-733, is
hereby repealed.
SECTION 13. It being immediately necessary for the pr eservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereo f this act shall take effect and
be in full force from and after its passage and approval.
59-1-1126 DC 1/19/2023 9:03:44 AM