1 STATE OF OKLAHOMA
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2 1st Session of the 59th Legislature (2023)
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3 SENATE BILL 834 By: Daniels
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6 AS INTRODUCED
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7 An Act relating to abortion; amending 21 O.S. 2021,
7 Section 861, which relates to crimes and punishments;
8 adding and modifying circumstances under which
8 certain acts are not criminal offenses; listing
9 additional acts that are not criminal offenses;
9 requiring certain reporting of abortion; defining
10 terms; amending Section 1, Chapter 11, O.S.L. 2022
10 (63 O.S. Supp. 2022, Section 1-731.4), which relates
11 to abortion; adding and modifying definitions;
11 clarifying applicability of certain provision; adding
12 and modifying exceptions to certain prohibition;
12 removing duplicative language; requiring certain
13 reporting of abortion; amending Section 2, Chapter
13 190, O.S.L. 2022 (63 O.S. Supp. 2022, Section 1-
14 745.32), which relates to definitions used in the
14 Oklahoma Heartbeat Act; defining terms; amending
15 Section 3, Chapter 190, O.S.L. 2022 (63 O.S. Supp.
15 2022, Section 1-745.33), which relates to determining
16 presence of fetal heartbeat; clarifying applicability
16 of certain provision; adding and updating statutory
17 references; amending Section 4, Chapter 190, O.S.L.
17 2022 (63 O.S. Supp. 2022, Section 1-745.34), which
18 relates to abortion prohibition if heartbeat
18 detected; clarifying applicability of certain
19 provision; adding and updating statutory references;
19 amending Section 5, Chapter 190, O.S.L. 2022 (63 O.S.
20 Supp. 2022, Section 1-745.35), which relates to
20 medical emergency; modifying exception; updating
21 statutory references; adding certain exception;
21 requiring certain reporting of abortion; amending
22 Section 1, Chapter 321, O.S.L. 2022 (63 O.S. Supp.
22 2022, Section 1-745.51), which relates to
23 definitions; defining and modifying terms; amending
23 Section 2, Chapter 321, O.S.L. 2022 (63 O.S. Supp.
24 2022, Section 1-745.52), which relates to abortion
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 1 prohibition; clarifying applicability of certain
1 provision; modifying exceptions; updating statutory
2 references; requiring certain reporting of abortion;
2 requiring abortion performed under certain exceptions
3 to be reported to State Department of Health on
3 certain form; restricting type of information
4 requested; requiring abortion provider to state
4 proper exception and include other required
5 information; requiring Department to compile reported
5 information into annual statistical report; directing
6 certain publication and submission of report;
6 requiring promulgation of certain rules; repealing 63
7 O.S. 2021, Section 1-733, which relates to self-
7 induced abortions; and declaring an emergency.
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10 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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11 SECTION 1. AMENDATORY 21 O.S. 2021, Section 861, is
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12 amended to read as follows:
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13 Section 861. A. Every person who administers to any woman, or
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14 who prescribes for any woman, or advises or procures any woman to
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15 take any medicine, drug or substance, or uses or employs any
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16 instrument, or other means whatever, with intent thereby to procure
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17 the miscarriage of such woman, unless the:
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18 1. The same is necessary to preserve her the life of a pregnant
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19 woman in a medical emergency as defined in subsection E of this
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20 section; or
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21 2. The pregnancy is the result of:
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22 a. rape or sexual assault that has been reported to law
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23 enforcement, or
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 1 b. incest of a minor that has been reported to law
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2 enforcement,
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3 shall be guilty of a felony punishable by imprisonment in the State
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4 Penitentiary for not less than two (2) years nor more than five (5)
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5 years.
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6 B. 1. The use, prescription, administration, procuring, or
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7 selling of any type of contraception shall not be a violation of
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8 subsection A of this section.
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9 2. An act related to in vitro fertilization or otherwise
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10 related to the diagnosis or treatment of infertility or the
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11 preservation of fertility by a licensed healthcare provider acting
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12 lawfully and within the scope of his or her practice shall not be a
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13 violation of subsection A of this section.
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14 3. An act is not a violation of subsection A of this section if
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15 performed with the purpose to:
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16 a. save the life or preserve the health of the unborn
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17 child,
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18 b. remove a dead unborn child whose death was caused by
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19 spontaneous abortion, or
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20 c. remove an ectopic pregnancy.
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21 C. Any abortion performed under an exception provided by
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22 subsection A of this section or performed to remove an ectopic
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23 pregnancy shall be reported by the abortion provider to the State
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24 Department of Health in accordance with Section 11 of this act.
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 1 D. As used in this section:
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2 1. “Medical emergency” means a condition that, in reasonable
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3 medical judgment:
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4 a. cannot be remedied by delivery of the child, and
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5 b. so complicates the medical condition of the pregnant
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6 woman as to necessitate the immediate abortion of her
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7 pregnancy to avert her death or for which a delay will
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8 create serious risk of substantial and irreversible
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9 physical impairment of a major bodily function, not
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10 including psychological or emotional conditions. A
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11 condition is not a medical emergency if it is based on
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12 a claim, diagnosis, or determination that the woman
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13 may engage in conduct which she intends to result in
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14 her death or in the substantial and irreversible
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15 physical impairment of a major bodily function; and
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16 2. “Reasonable medical judgment” means a medical judgment,
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17 based upon the facts known to the physician at the time, that would
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18 be made by a reasonably prudent physician who is knowledgeable about
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19 the case and the treatment possibilities with respect to the medical
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20 conditions involved.
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21 SECTION 2. AMENDATORY Section 1, Chapter 11, O.S.L. 2022
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22 (63 O.S. Supp. 2022, Section 1-731.4), is amended to read as
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23 follows:
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24 Section 731.4. A. As used in this section:
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 1 1. The terms “abortion” and “unborn child” shall have the same
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2 meaning as provided by Section 1-730 of Title 63 of the Oklahoma
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3 Statutes “Abortion” means the act of using, prescribing,
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4 administering, procuring, or selling of any instrument, medicine,
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5 drug, or any other substance, device, or means with the purpose to
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6 terminate the pregnancy of a woman, with knowledge that the
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7 termination by any of those means will with reasonable likelihood
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8 cause the death of an unborn child. It does not include the use,
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9 prescription, administration, procuring, or selling of any type of
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10 contraception. It does not include any act related to in vitro
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11 fertilization or otherwise related to the diagnosis or treatment of
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12 infertility or the preservation of fertility by a licensed
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13 healthcare provider acting lawfully and within the scope of his or
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14 her practice. An act is not an abortion if the act is performed
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15 with the purpose to:
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16 a. save the life or preserve the health of the unborn
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17 child,
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18 b. remove a dead unborn child whose death was caused by
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19 spontaneous abortion, or
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20 c. remove an ectopic pregnancy; and
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21 2. “Medical emergency” means a condition which that, in
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22 reasonable medical judgment:
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23 a. cannot be remedied by delivery of the child in which
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24 an abortion is necessary to preserve the life of a
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 1 pregnant woman whose life is endangered by a physical
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2 disorder, physical illness or physical injury
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3 including a life-endangering physical condition caused
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4 by or arising from the pregnancy itself, and
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5 b. so complicates the medical condition of the pregnant
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6 woman as to necessitate the immediate abortion of her
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7 pregnancy to avert her death or for which a delay will
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8 create serious risk of substantial and irreversible
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9 physical impairment of a major bodily function, not
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10 including psychological or emotional conditions. A
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11 condition is not a medical emergency if it is based on
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12 a claim, diagnosis, or determination that the woman
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13 may engage in conduct which she intends to result in
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14 her death or in the substantial and irreversible
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15 physical impairment of a major bodily function;
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16 3. “Reasonable medical judgment” means a medical judgment,
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17 based upon the facts known to the physician at the time, that would
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18 be made by a reasonably prudent physician who is knowledgeable about
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19 the case and the treatment possibilities with respect to the medical
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20 conditions involved; and
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21 4. “Unborn child” means a human fetus or embryo in any stage of
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22 gestation from fertilization until birth.
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 1 B. 1. Notwithstanding any other provision of law, a person
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2 shall not purposely perform, induce, or attempt to perform or induce
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3 an abortion except to save:
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4 1. To preserve the life of a pregnant woman in a medical
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5 emergency as defined in subsection A of this section; or
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6 2. If the pregnancy is the result of:
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7 a. rape or sexual assault that has been reported to law
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8 enforcement, or
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9 b. incest of a minor that has been reported to law
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10 enforcement.
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11 2. C. 1. A person convicted of performing or attempting to
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12 perform an abortion shall be guilty of a felony punishable by a fine
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13 not to exceed One Hundred Thousand Dollars ($100,000.00), or by
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14 confinement in the custody of the Department of Corrections for a
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15 term not to exceed ten (10) years, or by such fine and imprisonment.
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16 3. 2. This section does not:
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17 a. authorize the charging or conviction of a woman with
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18 any criminal offense in the death of her own unborn
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19 child, or
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20 b. prohibit the sale, use, prescription or administration
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21 of a contraceptive measure, drug or chemical if the
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22 contraceptive measure, drug or chemical is
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23 administered before the time when a pregnancy could be
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24 determined through conventional medical testing and if
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 1 the contraceptive measure, drug or chemical is sold,
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2 used, prescribed or administered in accordance with
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3 manufacturer instructions.
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4 4. 3. It is an affirmative defense to prosecution under this
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5 section if a licensed physician provides medical treatment to a
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6 pregnant woman which results in the accidental or unintentional
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7 injury or death to the unborn child.
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8 D. Any abortion performed or induced under an exception
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9 provided by subsection B of this section or performed to remove an
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10 ectopic pregnancy shall be reported by the abortion provider to the
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11 State Department of Health in accordance with Section 11 of this
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12 act.
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13 SECTION 3. AMENDATORY Section 2, Chapter 190, O.S.L.
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14 2022 (63 O.S. Supp. 2022, Section 1-745.32), is amended to read as
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15 follows:
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16 Section 1-745.32. As used in this act:
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17 1. “Abortion” means the act of using, prescribing,
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18 administering, procuring, or selling of any instrument, medicine,
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19 drug, or any other substance, device, or means with the purpose to
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20 terminate the pregnancy of a woman, with knowledge that the
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21 termination by any of those means will with reasonable likelihood
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22 cause the death of an unborn child. It does not include the use,
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23 prescription, administration, procuring, or selling of any type of
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24 contraception. It does not include any act related to in vitro
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 1 fertilization or otherwise related to the diagnosis or treatment of
1
2 infertility or the preservation of fertility by a licensed
2
3 healthcare provider acting lawfully and within the scope of his or
3
4 her practice. An act is not an abortion if the act is performed
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5 with the purpose to:
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6 a. save the life or preserve the health of the unborn
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7 child,
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8 b. remove a dead unborn child whose death was caused by
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9 spontaneous abortion, or
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10 c. remove an ectopic pregnancy;
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11 2. “Fetal heartbeat” means cardiac activity or the steady and
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12 repetitive rhythmic contraction of the fetal heart within the
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13 gestational sac;
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14 2. 3. “Gestational age” means the amount of time that has
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15 elapsed from the first day of a woman’s last menstrual period;
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16 3. 4. “Gestational sac” means the structure comprising the
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17 extraembryonic membranes that envelop the unborn child and that is
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18 typically visible by ultrasound after the fourth week of pregnancy;
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19 4. 5. “Medical emergency” means a condition that, in reasonable
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20 medical judgment:
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21 a. cannot be remedied by delivery of the child, and
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22 b. so complicates the medical condition of the pregnant
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23 woman as to necessitate the immediate abortion of her
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24 pregnancy to avert her death or for which a delay will
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 1 create serious risk of substantial and irreversible
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2 physical impairment of a major bodily function, not
2
3 including psychological or emotional conditions. A
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4 condition is not a medical emergency if it is based on
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5 a claim, diagnosis, or determination that the woman
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6 may engage in conduct which she intends to result in
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7 her death or in the substantial and irreversible
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8 physical impairment of a major bodily function;
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9 6. “Physician” means an individual licensed to practice
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10 medicine in this state including a medical doctor and a doctor of
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11 osteopathic medicine;
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12 5. 7. “Pregnancy” means the human female reproductive condition
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13 that:
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14 a. begins with fertilization,
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15 b. occurs when the woman is carrying the developing human
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16 offspring, and
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17 c. is calculated from the first day of the woman’s last
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18 menstrual period;
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19 6. 8.