1 STATE OF OKLAHOMA
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2 1st Session of the 59th Legislature (2023)
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3 SENATE BILL 402 By: Hamilton
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6 AS INTRODUCED
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7 An Act relating to abortion; creating the Prenatal
7 Equal Protection Act; providing short title; stating
8 purpose of act; amending 21 O.S. 2021, Sections 652
8 and 691, which relate to crimes and punishments;
9 modifying applicability of provisions relating to
9 assault and battery with deadly weapon and homicide;
10 making certain conduct justifiable; specifying
10 applicability of certain provisions; amending 12 O.S.
11 2021, Section 1053, which relates to wrongful death;
11 modifying applicability of certain provisions;
12 amending 63 O.S. 2021, Section 1-738.3f, which
12 relates to civil actions; modifying applicability of
13 section; making act prospective; providing for
13 codification; providing for noncodification; and
14 declaring an emergency.
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17 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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18 SECTION 1. NEW LAW A new section of law not to be
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19 codified in the Oklahoma Statutes reads as follows:
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20 This act shall be known and may be cited as the “Prenatal Equal
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21 Protection Act”.
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22 SECTION 2. NEW LAW A new section of law not to be
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23 codified in the Oklahoma Statutes reads as follows:
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 1 Acknowledging the sanctity of innocent human life, created in
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2 the image of God, the purpose of this act is:
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3 1. To follow the Constitution of the United States, which
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4 requires that “no state…shall deny to any person within its
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5 jurisdiction the equal protection of the laws”;
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6 2. To fulfill such constitutional requirement by protecting the
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7 lives of preborn persons with the same criminal and civil laws
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8 protecting the lives of born persons by striking provisions that
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9 permit willful prenatal homicide or assault;
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10 3. To protect pregnant mothers from being pressured to abort by
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11 striking provisions that may otherwise allow a person to direct,
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12 advise, encourage, or solicit a mother to abort her child; and
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13 4. To ensure that all persons potentially subject to such laws
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14 are entitled to due process protections.
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15 SECTION 3. AMENDATORY 21 O.S. 2021, Section 652, is
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16 amended to read as follows:
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17 Section 652. A. Every person who intentionally and wrongfully
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18 shoots another with or discharges any kind of firearm, with intent
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19 to kill any person, including an unborn child as defined in Section
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20 1-730 of Title 63 of the Oklahoma Statutes, shall upon conviction be
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21 guilty of a felony punishable by imprisonment in the State
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22 Penitentiary not exceeding life.
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23 B. Every person who uses any vehicle to facilitate the
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24 intentional discharge of any kind of firearm, crossbow or other
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 1 weapon in conscious disregard for the safety of any other person or
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2 persons, including an unborn child as defined in Section 1-730 of
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3 Title 63 of the Oklahoma Statutes, shall upon conviction be guilty
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4 of a felony punishable by imprisonment in the custody of the
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5 Department of Corrections for a term not less than two (2) years nor
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6 exceeding life.
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7 C. Any person who commits any assault and battery upon another,
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8 including an unborn child as defined in Section 1-730 of Title 63 of
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9 the Oklahoma Statutes, by means of any deadly weapon, or by such
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10 other means or force as is likely to produce death, or in any manner
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11 attempts to kill another, including an unborn child as defined in
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12 Section 1-730 of Title 63 of the Oklahoma Statutes, or in resisting
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13 the execution of any legal process, shall upon conviction be guilty
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14 of a felony punishable by imprisonment in the State Penitentiary not
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15 exceeding life.
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16 D. The provisions of this section shall not apply to:
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17 1. Acts which cause the death of an unborn child if those acts
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18 were committed during a legal abortion to which the pregnant woman
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19 consented; or
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20 2. Acts acts which are committed pursuant to usual and
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21 customary standards of medical practice during diagnostic testing or
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22 therapeutic treatment.
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23 E. Under no circumstances shall the mother of the unborn child
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24 be prosecuted for causing the death of the unborn child unless the
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 1 mother has committed a crime that caused the death of the unborn
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2 child.
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3 SECTION 4. AMENDATORY 21 O.S. 2021, Section 691, is
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4 amended to read as follows:
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5 Section 691. A. Homicide is the killing of one human being by
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6 another.
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7 B. As used in this section, “human being” includes an unborn
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8 child, as defined in Section 1-730 of Title 63 of the Oklahoma
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9 Statutes.
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10 C. Homicide shall not include:
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11 1. Acts which cause the death of an unborn child if those acts
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12 were committed during a legal abortion to which the pregnant woman
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13 consented; or
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14 2. Acts acts which are committed pursuant to the usual and
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15 customary standards of medical practice during diagnostic testing or
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16 therapeutic treatment.
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17 D. Under no circumstances shall the mother of the unborn child
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18 be prosecuted for causing the death of the unborn child unless the
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19 mother has committed a crime that caused the death of the unborn
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20 child.
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21 SECTION 5. NEW LAW A new section of law to be codified
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22 in the Oklahoma Statutes as Section 161 of Title 21, unless there is
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23 created a duplication in numbering, reads as follows:
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 1 Conduct which would otherwise constitute an offense is
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2 justifiable and not criminal when it is a lawful medical procedure:
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3 1. Performed by a licensed physician;
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4 2. Performed on a pregnant female to avert the death of the
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5 pregnant female;
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6 3. That results in the accidental or unintentional death of the
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7 unborn child the pregnant female is carrying; and
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8 4. Performed when all reasonable alternatives to save the life
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9 of the unborn child:
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10 a. are unavailable, or
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11 b. were attempted unsuccessfully before the performance
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12 of the medical procedure.
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13 SECTION 6. NEW LAW A new section of law to be codified
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14 in the Oklahoma Statutes as Section 696 of Title 21, unless there is
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15 created a duplication in numbering, reads as follows:
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16 A. Section 691 et seq. of Title 21 of the Oklahoma Statutes
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17 applies even where the victim is an unborn child.
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18 B. Enforcement where the victim is an unborn child is subject
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19 to the same presumptions, defenses, justifications, laws of parties,
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20 immunities, and clemencies as would apply where the victim is a
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21 person who had been born alive.
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22 C. This section prevails over other law to the extent of any
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23 conflict.
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 1 SECTION 7. NEW LAW A new section of law to be codified
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2 in the Oklahoma Statutes as Section 650.12 of Title 21, unless there
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3 is created a duplication in numbering, reads as follows:
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4 A. Section 641 et seq. of Title 21 of the Oklahoma Statutes
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5 applies even where the victim is an unborn child.
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6 B. Enforcement where the victim is an unborn child is subject
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7 to the same presumptions, defenses, justifications, laws of parties,
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8 immunities, and clemencies as would apply where the victim is a
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9 person who had been born alive.
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10 C. This section prevails over other law to the extent of any
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11 conflict.
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12 SECTION 8. AMENDATORY 12 O.S. 2021, Section 1053, is
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13 amended to read as follows:
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14 Section 1053. A. When the death of one is caused by the
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15 wrongful act or omission of another, the personal representative of
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16 the former may maintain an action therefor against the latter, or
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17 his or her personal representative if he or she is also deceased, if
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18 the former might have maintained an action, had he or she lived,
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19 against the latter, or his or her representative, for an injury for
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20 the same act or omission. The action must be commenced within two
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21 (2) years.
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22 B. The damages recoverable in actions for wrongful death as
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23 provided in this section shall include the following:
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 1 1. Medical and burial expenses, which shall be distributed to
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2 the person or governmental agency as defined in Section 5051.1 of
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3 Title 63 of the Oklahoma Statutes who paid these expenses, or to the
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4 decedent’s estate if paid by the estate. The provisions of this
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5 paragraph shall not apply to the cost of an abortion in actions
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6 maintained pursuant to subsection F of this section;
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7 2. The loss of consortium and the grief of the surviving
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8 spouse, which shall be distributed to the surviving spouse;
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9 3. The mental pain and anguish suffered by the decedent, which
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10 shall be distributed to the surviving spouse and children, if any,
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11 or next of kin in the same proportion as personal property of the
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12 decedent. For the purposes of actions maintained pursuant to
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13 subsection F of this section, “next of kin” as used in this
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14 paragraph shall mean the parent or grandparent who maintained the
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15 action as provided for in paragraph 3 of subsection F of this
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16 section;
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17 4. The pecuniary loss to the survivors based upon properly
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18 admissible evidence with regard thereto including, but not limited
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19 to, the age, occupation, earning capacity, health habits, and
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20 probable duration of the decedent’s life, which must inure to the
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21 exclusive benefit of the surviving spouse and children, if any, or
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22 next of kin, and shall be distributed to them according to their
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23 pecuniary loss. For the purposes of actions maintained pursuant to
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24 subsection F of this section, “next of kin” as used in this
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 1 paragraph shall mean the parent or grandparent who maintained the
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2 action as provided for in paragraph 3 of subsection F of this
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3 section; and
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4 5. The grief and loss of companionship of the children and
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5 parents of the decedent, which shall be distributed to them
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6 according to their grief and loss of companionship.
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7 C. In proper cases, as provided by Section 9.1 of Title 23 of
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8 the Oklahoma Statutes, punitive or exemplary damages may also be
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9 recovered against the person proximately causing the wrongful death
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10 or the person’s representative if such person is deceased. Such
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11 damages, if recovered, shall be distributed to the surviving spouse
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12 and children, if any, or next of kin in the same proportion as
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13 personal property of the decedent. For the purposes of actions
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14 maintained pursuant to subsection F of this section, “next of kin”
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15 as used in this paragraph shall mean the parent or grandparent who
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16 maintained the action as provided for in paragraph 3 of subsection F
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17 of this section.
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18 D. Where the recovery is to be distributed according to a
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19 person’s pecuniary loss or loss of companionship, the judge shall
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20 determine the proper division.
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21 E. The above-mentioned distributions shall be made after the
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22 payment of legal expenses and costs of the action.
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 1 F. 1. The provisions of this section shall also be available
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2 for the death of an unborn person as defined in Section 1-730 of
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3 Title 63 of the Oklahoma Statutes.
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4 2. The provisions of this subsection shall apply to acts which
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5 cause the death of an unborn person in utero if:
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6 a. the physician who performed the abortion or the
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7 referring physician fails to obtain and document the
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8 voluntary and informed consent of the pregnant woman
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9 pursuant to Section 1-738.2 of Title 63 of the
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10 Oklahoma Statutes,
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11 b. the pregnant woman withdraws her consent to the
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12 abortion prior to performance of the abortion,
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13 c. the pregnant woman undergoes the abortion due to
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14 coercion from a third party,
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15 d. the physician fails to obtain and document proof of
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16 age demonstrating that the pregnant woman is not a
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17 minor, or, in the case of a minor, fails to obtain:
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18 (1) parental consent to the abortion pursuant to
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19 Section 1-740.2 of Title 63 of the Oklahoma
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20 Statutes,
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21 (2) proof that the pregnant woman, although a minor,
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22 is emancipated, or
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 1 (3) judicial authorization of the abortion without
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2 parental notification pursuant to Section 1-740.3
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3 of Title 63 of the Oklahoma Statutes,
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4 e. the physician who performed the abortion causes the
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5 woman physical or psychological harm, the possibility
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6 of which she did not foresee or was not informed of at
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7 the time of her consent,
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8 f. the physician who performed the abortion fails to
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9 screen the pregnant woman and document such screening
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10 for risk factors associated with a heightened risk of
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11 adverse consequences from abortion which a reasonably
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12 prudent physician would screen for,
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13 g. the physician fails to screen the pregnant woman and
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14 document such screening for physical or psychological
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15 impairment of judgment due to factors including, but
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16 not limited to, drugs, alcohol, illness or fatigue,
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17 h. the physician fraudulently induces the pregnant woman
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18 to obtain the abortion or gives misleading or false
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19 information in response to a pregnant woman’s inquiry,
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20 or
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21 i. there exist any other circumstances which violate
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22 state law.
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23 The provisions of this paragraph shall not be construed to apply
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24 to cases in which a physician licensed to practice medicine in this
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 1 state attempts, in a reasonably prudent manner, to prevent the death
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2 of an unborn person or a pregnant woman.
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3 3. A parent or grandparent of the deceased unborn person is
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4 entitled to maintain an action against the physician who caused the
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5 death of an unborn person under the conditions provided by
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6 subparagraphs a through i of paragraph 2 of this subsection;
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7 provided, however, the parent or grandparent may not maintain such
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8 action if the parent or grandparent coerced the mother of the unborn
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9 person to abort the unborn person.
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10 4. Liability for wrongful death by the physician under this
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11 section shall not be waived by the pregnant woman prior to
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12 per