Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 93rd General Assembly A Bill
3 Second Extraordinary Session, 2021 HOUSE BILL 1012
4
5 By: Representatives Bentley, M. Berry, Barker, Payton, Miller, Womack, Pilkington, Furman, Ladyman,
6 Lynch, Cozart, Richmond, Lowery, C. Cooper, Cloud, Speaks, M. McElroy, B. Smith, Tosh, Wooten,
7 Rye, S. Smith, Penzo, Lundstrum, Wing, Haak
8 By: Senators Rapert, Hester, B. Ballinger, Caldwell, T. Garner, K. Hammer, G. Stubblefield
9
10 For An Act To Be Entitled
11 AN ACT TO CREATE THE ARKANSAS HUMAN HEARTBEAT AND
12 HUMAN LIFE CIVIL JUSTICE ACT; TO REGULATE ABORTION IN
13 ARKANSAS; TO SAVE THE LIVES OF UNBORN CHILDREN AND
14 PROTECT THE HEALTH OF WOMEN THROUGH CIVIL LIABILITY
15 FOR VIOLATIONS OF ABORTION LAWS; TO DECLARE AN
16 EMERGENCY; AND FOR OTHER PURPOSES.
17
18
19 Subtitle
20 TO CREATE THE ARKANSAS HUMAN HEARTBEAT
21 AND HUMAN LIFE CIVIL JUSTICE ACT; TO SAVE
22 THE LIVES OF UNBORN CHILDREN AND PROTECT
23 THE HEALTH OF WOMEN THROUGH CIVIL
24 LIABILITY; AND TO DECLARE AN EMERGENCY.
25
26
27 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
28
29 SECTION 1. Arkansas Code Title 20, Chapter 16, is amended to add an
30 additional subchapter to read as follows:
31 Subchapter 26 Arkansas Human Heartbeat and Human Life Civil Justice Act
32
33 20-16-2601. Title.
34 This subchapter shall be known and may be cited as the "Arkansas Human
35 Heartbeat and Human Life Civil Justice Act".
36
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1 20-16-2602. Legislative findings.
2 (a) The General Assembly finds that:
3 (1) It is time for the United States Supreme Court to redress
4 and correct the grave injustice against humanity which is being perpetuated
5 by its decisions in Roe v. Wade, Doe v. Bolton, and Planned Parenthood v.
6 Casey;
7 (2) The United States Supreme Court committed a grave injustice
8 against humanity in the Dred Scott decision by denying personhood to a class
9 of human beings, African-Americans;
10 (3) The United States Supreme Court also committed a grave
11 injustice against humanity by upholding the separate but equal doctrine in
12 Plessy v. Ferguson, which withdrew legal protection from a class of human
13 beings who were persons under the United States Constitution, African-
14 Americans;
15 (4) An injustice against humanity occurs when a government
16 withdraws legal protection from a class of human beings, resulting in severe
17 deprivation of their rights, up to and including death;
18 (5) In Brown v. Board of Education, the United States Supreme
19 Court corrected its own grave injustice against humanity created in Plessy v.
20 Ferguson by overruling and abolishing the fifty-eight-year-old separate but
21 equal doctrine, thus giving equal legal rights to African-Americans;
22 (6) Under the doctrine of stare decisis, the three (3) abortion
23 cases mentioned in subdivision (a)(1) of this section meet the test for when
24 a case should be overturned by the United States Supreme Court because of
25 significant changes in facts or laws, including without limitation the
26 following:
27 (A) The cases have not been accepted by scholars, judges,
28 and the American people, evidenced by the fact that these cases are still the
29 most intensely controversial cases in American history and at the present
30 time;
31 (B) New scientific advances have demonstrated since 1973
32 that life begins at the moment of conception and that the child in a woman's
33 womb is a human being;
34 (C) Scientific evidence and personal testimonies document
35 the massive harm that abortion causes to women;
36 (D) The laws in all fifty (50) states have now changed
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1 through Safe Haven laws to eliminate all burdens of child care from women
2 who do not want to care for a child; and
3 (E) Public attitudes favoring adoption have created a
4 culture of adoption in the United States, with many families waiting long
5 periods of time to adopt newborn infants;
6 (7) Before the United States Supreme Court decision of Roe v.
7 Wade, Arkansas had already enacted prohibitions on abortions under 5-61-101
8 et seq., and authorized the refusal to perform, participate, consent, or
9 submit to an abortion under 20-16-601;
10 (8) Arkansas Constitution, Amendment 68, states that "the policy
11 of Arkansas is to protect the life of every unborn child from conception
12 until birth" and that "no public funds will be used to pay for any abortion,
13 except to save the mother's life";
14 (9) Arkansas passed the Arkansas Human Heartbeat Protection Act,
15 20-16-1301 et seq., in 2013, which shows the will of the Arkansas people to
16 save the lives of unborn children;
17 (10) Arkansas has continued to pass additional legislation in
18 2015, 2017, 2019, and 2021 that further shows the will of the Arkansas people
19 to save the lives of unborn children;
20 (11)(A) Since the decision of Roe v. Wade, approximately sixty-
21 two million five hundred two thousand nine hundred four (62,502,904)
22 abortions have ended the lives of unborn children.
23 (B) In 2015, six hundred thirty-eight thousand one hundred
24 sixty-nine (638,169) legal induced abortions were reported to the Centers for
25 Disease Control and Prevention from forty-nine (49) reporting areas in the
26 United States.
27 (C) The Department of Health reports that two thousand
28 nine hundred sixty-three (2,963) abortions took place in Arkansas during
29 2019, including abortions performed on out-of-state residents;
30 (12) Arkansas has a compelling interest from the outset of a
31 woman's pregnancy in protecting the health of the woman and life of an unborn
32 child; and
33 (13) The State of Arkansas urgently pleads with the United
34 States Supreme Court to do the right thing, as they did in one of their
35 greatest cases, Brown v. Board of Education, which overturned a fifty-eight-
36 year-old precedent of the United States, and reverse, cancel, overturn, and
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1 annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey.
2 (b) It is the intent of this subchapter to ensure that abortion in
3 Arkansas is abolished and to establish civil liability for the violation of
4 abortion laws in order to protect the lives of unborn children.
5
6 20-16-2603. Definitions.
7 As used in this subchapter:
8 (1)(A) Abortion means the act of using, prescribing,
9 administering, procuring, or selling of any instrument, medicine, drug, or
10 any other substance, device, or means with the purpose to terminate the
11 pregnancy of a woman, with knowledge that the termination by any of those
12 means will with reasonable likelihood cause the death of an unborn child.
13 (B) An act under subdivision (1)(A) of this section is not
14 an abortion if the act is performed with the purpose to:
15 (i) Save the life or preserve the health of the
16 unborn child;
17 (ii) Remove a dead unborn child caused by
18 spontaneous abortion; or
19 (iii) Remove an ectopic pregnancy;
20 (2) "Entity" means a corporation, partnership, limited liability
21 company, association, joint venture, public corporation, any other legal or
22 commercial entity, fiduciary, or any organized group of persons whether
23 incorporated or not, including without limitation a church or religious
24 organization;
25 (3) Fertilization means the fusion of a human spermatozoon
26 with a human ovum;
27 (4) Medical emergency means a condition in which an abortion
28 is necessary to preserve the life of a pregnant woman whose life is
29 endangered by a physical disorder, physical illness, or physical injury,
30 including a life-endangering physical condition caused by or arising from the
31 pregnancy itself; and
32 (5) Unborn child means an individual organism of the species
33 Homo sapiens from fertilization until live birth.
34
35 20-16-2604. Prohibition.
36 (a) A person or entity shall not purposely perform or attempt to
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1 perform an abortion except to save the life of a pregnant woman in a medical
2 emergency.
3 (b) This section does not:
4 (1) Authorize the charging or conviction of a woman with any
5 criminal offense in the death of her own unborn child;
6 (2) Permit a civil liability to be assessed against a woman upon
7 whom an abortion is performed in violation of this subchapter; or
8 (3) Prohibit the sale, use, prescription, or administration of a
9 contraceptive measure, drug, or chemical if the contraceptive measure, drug,
10 or chemical is administered before the time when a pregnancy could be
11 determined through conventional medical testing and if the contraceptive
12 measure, drug, or chemical is sold, used, prescribed, or administered in
13 accordance with manufacturer instructions.
14 (c) It is an affirmative defense under this section if a licensed
15 physician provides medical treatment to a pregnant woman which results in the
16 accidental or unintentional physical injury or death to the unborn child.
17
18 20-16-2605. Exemption for preemption and intergovernmental immunity.
19 The prohibition in 20-16-2604 shall not apply to an abortion
20 performed at the behest of federal agencies, contractors, or employees that
21 are carrying out duties under federal law, if the prohibition on the abortion
22 would violate the doctrines of preemption or intergovernmental immunity.
23
24 20-16-2606. Limitation on public enforcement.
25 (a) Notwithstanding any other law, the requirements of this subchapter
26 shall be enforced exclusively through the private civil actions described in
27 20-16-2607.
28 (b) A direct or indirect enforcement of this subchapter may not be
29 taken or threatened by the state, a political subdivision, a district or
30 county attorney, or an executive or administrative officer or employee of
31 this state or a political subdivision against any person or entity.
32 (c) A violation of this subchapter may not be used to justify or
33 trigger the enforcement of any other law, except as provided in 20-16-2607.
34
35 20-16-2607. Civil liability.
36 (a) Any person or entity, other than the state, a political
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1 subdivision of the state, or an officer or employee of a state or local
2 governmental entity in this state, may bring a civil action against any
3 person or entity who:
4 (1) Performs or induces an abortion in violation of this
5 subchapter;
6 (2) Knowingly engages in conduct that aids or abets the
7 performance or inducement of an abortion, including paying for or reimbursing
8 the costs of an abortion through insurance or otherwise, if the abortion is
9 performed or induced in violation of this subchapter, regardless of whether
10 the person or entity knew or should have known that the abortion would be
11 performed or induced in violation of this subchapter; or
12 (3) Intends to engage in the conduct described in subdivision
13 (a)(1) or subdivision (a)(2) of this section.
14 (b) If a claimant prevails in an action brought under this section,
15 the court shall award:
16 (1) Injunctive relief sufficient to prevent the defendant from
17 violating this subchapter or engaging in acts that aid or abet violations of
18 this subchapter;
19 (2) Statutory damages in an amount of not less than ten thousand
20 dollars ($10,000) for each abortion that the defendant performed or induced
21 in violation of this subchapter, and for each abortion performed or induced
22 or aided or abetted in violation of this subchapter;
23 (3) Nominal and compensatory damages if the plaintiff has
24 suffered harm from the defendant's conduct, including without limitation loss
25 of consortium and emotional distress; and
26 (4) Costs and attorney's fees.
27 (c) Notwithstanding subsection (b) of this section, a court may not
28 award relief under this section in response to a violation of subdivision
29 (a)(1) or subdivision (a)(2) of this section if the defendant demonstrates
30 that the defendant previously paid the full amount of statutory damages under
31 subdivision (b)(2) of this section in a previous action for that particular
32 violation of this subchapter, or for the particular conduct that aided or
33 abetted an abortion performed or induced in violation of this subchapter.
34 (d) Notwithstanding any other law, a person or entity may bring an
35 action under this section not later than the third anniversary after the date
36 the cause of action accrues.
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1 (e) Notwithstanding any other law, the following are not a defense to
2 an action brought under this section:
3 (1) Ignorance or mistake of law;
4 (2) A defendant's belief that the requirements or provisions of
5 this subchapter are or were unconstitutional;
6 (3) A defendant's reliance on any court decision that has been
7 overruled on appeal or by a subsequent court, even if that court decision has
8 not been overruled when the defendant violated this subchapter;
9 (4) A defendant's reliance on any state or federal court
10 decision that is not binding on the court in which the action has been
11 brought;
12 (5) Nonmutual issue preclusion or nonmutual claim preclusion;
13 (6) The consent of the unborn child's mother to the abortion; or
14 (7) Any claim that the enforcement of this subchapter or the
15 imposition of civil liability against the defendant will violate the
16 constitutional rights of third parties, except as provided by 20-16-2608.
17 (f)(1) It is an affirmative defense if:
18 (A) A person or entity sued under subdivision (a)(2) of
19 this section reasonably believed, after conducting a reasonable
20 investigation, that the person or entity performing or inducing the abortion
21 had complied or would comply with every requirement and provision of this
22 subchapter; or
23 (B) A person or entity sued under subdivision (a)(3) of
24 this section reasonably believed, after conducting a reasonable
25 investigation, that the person or entity performing or inducing the abortion
26 would comply with every requirement and provision of this subchapter.
27 (2) The defendant has the burden of proving an affirmative
28 defense under subdivision (f)(1)(A) or subdivision (f)(1)(B) of this section
29 by a preponderance of the evidence.
30 (g) This section does not impose liability on any speech or conduct
31 protected by the First Amendment of the United States Constitution, as made
32 applicable to the states through the United States Supreme Court's
33 interpretation of the Fourteenth Amendment of the United States Constitution,
34 or by Arkansas Constitution, Article 2, 6.
35 (h)(1) Notwithstanding any other law, neither the state, nor any of
36 its political subdivisions, nor any district or county attorney, nor any
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1 executive or administrative officer or employee of this state or a political
2 subdivision may act in concert or participation with anyone who brings suit
3 under this section, nor may they intervene in any action brought under this
4 section.
5 (2) This subsection does not prohibit a person or entity
6 described in subsection (h)(1) of this section from filing an amicus curiae
7 brief in the action if that person or entity does not