Bill: SB 8, 87(R) - 2021

SB 8 would determine the fetal heartbeat to be the standard for estimating the gestational age of a preborn child and the condition of the woman and her pregnancy. Therefore, a physician may not knowingly perform or induce an abortion unless the physician determines whether the woman’s preborn child has a detectable heartbeat. To determine this, the physician must use a test that is consistent with the physician’s good faith and understanding of medical practice, consistent with these rules, and appropriate for the estimated gestational age of the preborn child. These determinations shall be recorded in the pregnant woman’s medical record, including the gestational age, the method used to determine gestational age, and the test used for detecting a fetal heartbeat, including date, time, and results of the test. A copy must also be maintained in the physician’s files. The executive commissioner of the Health and Safety Commission may adopt rules specifying the appropriate tests to be used in determining the presence of a fetal heartbeat.

SB 8 would then restrict physicians from performing abortions if a fetal heartbeat for the preborn child is detected. This does not overrule any other preexisting law, but rather is in addition to these laws. It does not constitute a right to abortion before a fetal heartbeat is detected.  Therefore, all current restrictions on conducting abortions are still in place.

Any person, other than an officer, or employee of a state or local government entity in this state, may bring civil action against a person who violates these rules. If the claimant wins, the court shall award injunctive relief, statutory damages not less than $10,000 for each violation or offense, and the cost of attorney’s fees. The court may award relief under this section in response to a violation if the defendant demonstrates that they have previously paid statutory damages in a previous action for that particular violation or offense. A person may bring action not later than the sixth anniversary of the date the cause of action accrues. Ignorance or mistake of law, a defendant’s belief that these requirements are unconstitutional or were unconstitutional, a reliance on a court decision that has been overruled by the applicable final appellate court, or the consent of the preborn’s mother to the abortion are not viable defenses for these violations. District or county attorneys may not intervene in an action brought under this section.

A defendant in this action may assert an affirmative defense to liability only if the defendant has standing to assert the third-party rights of women seeking an abortion, and the defendant demonstrates that the relief sought by the claimant will impose an undue burden on women seeking an abortion. Undue burden may not be found unless the defendant introduces evidence that proves an award of relief will prevent or place a substantial obstacle in the path of an identifiable woman or an identifiable group of women from seeking or obtaining an abortion. This defense will not be available if the US Supreme Court overturns Roe v. Wade (1973) or Planned Parenthood v. Casey (1992). Civil action shall be brought in the county which all or a substantial part of the events occurred, the county of residence for any one of the natural person defendants at the time of the action, the county of the principal office of the defendants that is not a natural person, or the county of residence for the claimant. This section prevails over any conflicting law. SB 8 then provides immunity to legal claims under this subdivision to governments, their political subdivisions, and their officers and employees to any action, claim, or counterclaim that challenges the validity of this section.

If any part of this subchapter is deemed unconstitutional, it shall be severed from the rest of the section, leaving the valid applications in force because these provisions are designed to stand alone. The same is determined for any portion determined constitutionally vague. No court may decide to remove the severability clause of this section.

SB 8 was amended twice in the House. One amendment is clerical and replaces the word chapter with subchapter in various places. The other Amendment would prevent a person from bringing a civil action or suit against a mother who got an abortion if the pregnancy was brought about through an act of rape, sexual assault, incest, or any other prohibited act.