HB 357: "An Act relating to abortion; relating to who may perform an abortion; relating to civil enforcement of abortion laws; relating to abortion after the detection of a fetal heartbeat; amending Rules 3 and 82, Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of Appellate Procedure; and providing for an effective date."
00 HOUSE BILL NO. 357 01 "An Act relating to abortion; relating to who may perform an abortion; relating to civil 02 enforcement of abortion laws; relating to abortion after the detection of a fetal 03 heartbeat; amending Rules 3 and 82, Alaska Rules of Civil Procedure, and Rule 508, 04 Alaska Rules of Appellate Procedure; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 SHORT TITLE. This Act may be known as the Alaska Heartbeat Act. 09 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 LEGISLATIVE FINDINGS. The legislature finds that, according to contemporary 12 medical research, 13 (1) fetal heartbeat has become a key medical predictor that an unborn child 14 will reach live birth;
01 (2) cardiac activity begins at a biologically identifiable moment in time, 02 normally when the fetal heart is formed in the gestational sac; 03 (3) the state has compelling interests from the outset of a woman's pregnancy 04 in protecting the health of the woman and the life of the unborn child; and 05 (4) to make an informed choice about whether to continue her pregnancy, a 06 woman has a compelling interest in knowing the likelihood of her unborn child surviving to 07 live birth based on the presence of cardiac activity. 08 * Sec. 3. AS 18.16.010(a) is amended to read: 09 (a) An abortion may not be performed in this state unless 10 (1) the abortion is performed by a health care provider [PHYSICIAN 11 LICENSED BY THE STATE MEDICAL BOARD UNDER AS 08.64.200]; 12 (2) the abortion is performed in a hospital or other facility approved for 13 the purpose by the Department of Health or a hospital operated by the federal 14 government or an agency of the federal government; 15 (3) before an abortion is knowingly performed or induced on a 16 pregnant, unmarried, unemancipated woman under 18 years of age, notice or consent 17 have been given as required under AS 18.16.020 or a court has authorized the minor to 18 proceed with the abortion without parental involvement under AS 18.16.030 and the 19 minor consents; for purposes of enforcing this paragraph, there is a rebuttable 20 presumption that a woman who is unmarried and under 18 years of age is 21 unemancipated; 22 (4) the woman is domiciled or physically present in the state for 30 23 days before the abortion; [AND] 24 (5) the applicable requirements of AS 18.16.060 have been satisfied; 25 and 26 (6) the requirements of AS 18.16.100 and 18.16.110 have been 27 satisfied. 28 * Sec. 4. AS 18.16.010(c) is amended to read: 29 (c) A person who knowingly violates a provision of this section, other than 30 (a)(6) of this section, upon conviction, is punishable by a fine of not more than 31 $1,000, or by imprisonment for not more than five years, or by both.
01 * Sec. 5. AS 18.16.010(g) is amended to read: 02 (g) It is a defense to a prosecution or claim for violation of (a)(3) of this 03 section that, in the clinical judgment of the health care provider [PHYSICIAN OR 04 SURGEON], compliance with the requirements of (a)(3) of this section was not 05 possible because [, IN THE CLINICAL JUDGMENT OF THE PHYSICIAN OR 06 SURGEON,] an immediate threat of serious risk to the life or physical health of the 07 pregnant minor from the continuation of the pregnancy created a medical emergency 08 necessitating the immediate performance or inducement of an abortion. In this 09 subsection, 10 (1) "clinical judgment" means a health care provider's 11 [PHYSICIAN'S OR SURGEON'S] subjective professional medical judgment 12 exercised in good faith; 13 (2) "defense" has the meaning given in AS 11.81.900(b); 14 (3) "medical emergency" means a condition that, on the basis of the 15 health care provider's [PHYSICIAN'S OR SURGEON'S] good faith clinical 16 judgment, so complicates the medical condition of a pregnant minor that 17 (A) an immediate abortion of the minor's pregnancy is 18 necessary to avert the minor's death; or 19 (B) a delay in providing an abortion will create serious risk of 20 medical instability caused by a substantial and irreversible impairment of a 21 major bodily function of the pregnant minor. 22 * Sec. 6. AS 18.16.010(h) is amended to read: 23 (h) A [PHYSICIAN OR OTHER] health care provider is liable for failure to 24 obtain the informed consent of a person as required under AS 18.16.060 if the 25 claimant establishes by a preponderance of the evidence that the provider has failed to 26 inform the person of the common risks and reasonable alternatives to the proposed 27 abortion procedure and that, but for that failure, the person would not have consented 28 to the abortion procedure. 29 * Sec. 7. AS 18.16.010(i) is amended to read: 30 (i) It is a defense to any action for the alleged failure to obtain the informed 31 consent of a person under (h) of this section that
01 (1) the risk not disclosed is too commonly known or is too remote to 02 require disclosure; or 03 (2) the person who is the subject of the alleged failure to obtain the 04 informed consent stated to the [PHYSICIAN OR OTHER] health care provider that 05 the person would or would not undergo the abortion procedure regardless of the risk 06 involved or that the person did not want to be informed of the matters to which the 07 person would be entitled to be informed. 08 * Sec. 8. AS 18.16.010(j) is amended to read: 09 (j) In an action under (h) of this section, there is a rebuttable presumption that 10 an abortion was performed with the pregnant woman's informed consent if the person 11 who performed the abortion submits into evidence a copy of the [WOMAN'S] written 12 certification required under AS 18.16.060(b). 13 * Sec. 9. AS 18.16.020(b) is amended to read: 14 (b) In (a)(1) of this section, actual notice must be given or attempted to be 15 given in person or by telephone by either a health care provider [THE PHYSICIAN] 16 who has referred the minor for an abortion or by the health care provider 17 [PHYSICIAN] who intends to perform the abortion. An individual designated by the 18 health care provider [PHYSICIAN] may initiate the notification process, but the 19 actual notice shall be given by the health care provider [PHYSICIAN]. The health 20 care provider [PHYSICIAN] giving notice of the abortion must document the notice 21 or attempted notice in the minor's medical record and take reasonable steps to verify 22 that the person to whom the notice is provided is the parent, legal guardian, or 23 custodian of the minor seeking an abortion. Reasonable steps to provide notice must 24 include 25 (1) if in person, requiring the person to show government-issued 26 identification along with additional documentation of the person's relationship to the 27 minor; additional documentation may include the minor's birth certificate or a court 28 order of adoption, guardianship, or custodianship; 29 (2) if by telephone, initiating the call, attempting to verify through a 30 review of published telephone directories that the number to be dialed is that of the 31 minor's parent, legal guardian, or custodian, and asking questions of the person to
01 verify that the person's relationship to the minor is that of parent, legal guardian, or 02 custodian; when notice is attempted by telephone but the health care provider 03 [PHYSICIAN] or health care provider's [PHYSICIAN'S] designee is unsuccessful in 04 reaching the parent, legal guardian, or custodian, the health care provider's 05 [PHYSICIAN'S] designee shall continue to initiate the call, in not less than two-hour 06 increments, for not less than five attempts, in a 24-hour period. 07 * Sec. 10. AS 18.16.020(c) is amended to read: 08 (c) If actual notice is attempted unsuccessfully after reasonable steps have 09 been taken as described under (b) of this section, a [THE] referring physician or the 10 health care provider [PHYSICIAN] intending to perform an abortion on a minor 11 may provide constructive notice to the minor's parent, legal guardian, or custodian. 12 Constructive notice is considered to have been given 48 hours after the certified notice 13 is mailed. In this subsection, "constructive notice" means that notice of the abortion 14 was provided in writing and mailed by certified mail, delivery restricted to addressee 15 only, to the last known address of the parent, legal guardian, or custodian after taking 16 reasonable steps to verify the mailing address. 17 * Sec. 11. AS 18.16.020(d) is amended to read: 18 (d) A health care provider [PHYSICIAN] who suspects or receives a report 19 of abuse under this section shall report the abuse as provided under AS 47.17.020. 20 * Sec. 12. AS 18.16.020(e) is amended to read: 21 (e) A health care provider [PHYSICIAN] who is informed that the 22 pregnancy of a minor resulted from criminal sexual assault of the minor must retain, 23 and take reasonable steps to preserve, the products of conception and evidence 24 following the abortion for use by law enforcement officials in prosecuting the crime. 25 * Sec. 13. AS 18.16.040 is amended to read: 26 Sec. 18.16.040. Reports. For each month in which an abortion is performed on 27 a minor by a health care provider [PHYSICIAN], the health care provider 28 [PHYSICIAN] shall file a report with the Department of Health indicating the number 29 of abortions performed on a minor for that month, the age of each minor, the number 30 of previous abortions performed on each minor, if any, and the number of pregnancies 31 of each minor, if any, and the number of consents provided under each of the
01 exceptions enumerated under AS 18.16.020(a)(1) - (4). A report filed under this 02 section may not include identifying information of the minor other than the minor's 03 age. 04 * Sec. 14. AS 18.16.060(b) is amended to read: 05 (b) Consent to an abortion is informed and voluntary when 06 (1) the health care provider who is to perform the abortion 07 [WOMAN OR ANOTHER PERSON WHOSE CONSENT IS REQUIRED] certifies 08 in writing that the health care provider [PHYSICIAN WHO IS TO PERFORM THE 09 ABORTION], a member of the health care provider's [PHYSICIAN'S] staff who is a 10 licensed health care provider, or the referring health care provider [PHYSICIAN] 11 has verbally informed the woman or another person whose consent is required of the 12 name of the health care provider [PHYSICIAN] who will perform the procedure and 13 the gestational estimation of the pregnancy at the time the abortion is to be performed 14 and has provided 15 (A) [EITHER (1)] the Internet information required to be 16 maintained under AS 18.05.032; the health care provider [PHYSICIAN] or a 17 member of the health care provider's [PHYSICIAN'S] staff who is a licensed 18 health care provider shall provide a copy of the Internet information [IF A 19 PERSON REQUESTS A WRITTEN COPY]; if a member of the health care 20 provider's [PHYSICIAN'S] staff provides the information required under this 21 paragraph, the member of the health care provider's [PHYSICIAN'S] staff 22 shall offer the opportunity to consult with the health care provider 23 [PHYSICIAN]; 24 (B) [OR (2)] information about the nature and risks of 25 undergoing or not undergoing the proposed procedure that a reasonable patient 26 would consider material to making a voluntary and informed decision of 27 whether to undergo the procedure; 28 (2) the health care provider who is to perform the abortion, or a 29 member of the health care provider's staff who is a licensed health care provider, 30 informs the woman of the particular medical risks associated with the procedure, 31 including, when medically accurate,
01 (A) the risks of infection and hemorrhage; 02 (B) the potential danger to a subsequent pregnancy and of 03 infertility; 04 (C) the possibility of increased risk of breast cancer 05 following a performed or induced abortion and the natural protective 06 effect of a completed pregnancy in avoiding breast cancer; and 07 (D) the medical risks associated with carrying the child to 08 term; and 09 (3) the woman is provided with the name of each person who 10 provides or explains the information required by this subsection. 11 * Sec. 15. AS 18.16.060(c) is amended to read: 12 (c) The information required in (b) of this section shall be provided before the 13 procedure in a private setting to protect privacy, maintain the confidentiality of the 14 decision, ensure that the information focuses on the individual circumstances, and 15 ensure an adequate opportunity to ask questions. Provision of the information 16 telephonically or by electronic mail, regular mail, or facsimile transmittal before the 17 person's appointment satisfies the requirements of this subsection as long as the person 18 whose consent is required under (a) of this section has an opportunity to ask questions 19 of the health care provider [PHYSICIAN] after receiving the information. 20 * Sec. 16. AS 18.16.060(d) is amended to read: 21 (d) Notwithstanding (a) of this section, informed consent that meets the 22 requirements of (a) - (c) of this section is not required in the case of a medical 23 emergency or if the pregnancy is the result of sexual assault under AS 11.41.410 - 24 11.41.427, sexual abuse of a minor under AS 11.41.434 - 11.41.440, incest under 25 AS 11.41.450, or an offense under a law of another jurisdiction with elements similar 26 to one of these offenses. In this subsection, "medical emergency" means a condition 27 that, on the basis of a health care provider's [PHYSICIAN'S] good faith clinical 28 judgment, so complicates the medical condition of a pregnant woman that 29 (1) the immediate termination of the woman's pregnancy is necessary 30 to avert the woman's death; or 31 (2) a delay in providing an abortion will create serious risk of
01 substantial and irreversible impairment of a major bodily function of the woman. 02 * Sec. 17. AS 18.16.090 is amended to read: 03 Sec. 18.16.090. Definitions. In AS 18.16.010 - 18.16.090 [THIS CHAPTER], 04 (1) "abortion" means the use or prescription of an instrument, 05 medicine, drug, or other substance or device to terminate the pregnancy of a woman 06 known to be pregnant, except that "abortion" does not include the termination of a 07 pregnancy if done with the intent to 08 (A) save the life or preserve the health of the unborn child; 09 (B) deliver the unborn child prematurely to preserve the health 10 of both the pregnant woman and the woman's child; or 11 (C) remove a dead unborn child; 12 (2) "health care provider" has the meaning given in AS 18.23.070; 13 (3) "unemancipated" means that a woman who is unmarried and under 14 17 years of age has not done any of the following: 15 (A) entered the armed services of the United States; 16 (B) become employed and self-subsisting; 17 (C) been emancipated under AS 09.55.590; or 18 (D) otherwise become independent from the care and control of 19 the woman's parent, guardian, or custodian. 20 * Sec. 18. AS 18.16 is amended by adding new sections to read: 21 Article 2. Fetal Heartbeat; Additional Requirements. 22 Sec. 18.16.100. Determination of presence of fetal heartbeat required; 23 record. (a) Except as otherwise provided in AS 18.16.100 - 18.16.270, a health care 24 provider may not knowingly perform or induce an abortion on a woman unless the 25 health care provider has determined, in accordance with this section, whether the 26 woman's unborn child has a detectable fetal heartbeat. 27 (b) In making a determination under (a) of this section, a health care provider 28 shall use a test that is 29 (1) consistent with standard medical practice; and 30 (2) appropriate for the estimated gestational age of the unborn child 31 and the condition of the woman and her pregnancy.
01 (c) A health care provider making a determination under (a) of this section 02 shall record in the woman's medical record 03 (1) the estimated gestational age of the unborn child; 04 (2) the method used to estimate the gestational age; and 05 (3) the test used for detecting a fetal heartbeat, the date and time the 06 test is performed, and the result of the test. 07 (d) In this section, "standard medical practice" means the degree of skill, care, 08 and diligence that a health care provider of ordinary judgment, learning, and skill 09 would employ in like circumstances. 10 Sec. 18.16.110. Prohibited abortion of unborn child with detectable fetal 11 heartbeat; effect. (a) Except as provided in AS 18.16.120 and 18.16.130, a health 12 care provider may not knowingly perform or induce an abortion on a woman if the 13 health care provider detects a fetal heartbeat for the unborn child or fails to perform a 14 test in accordance with AS 18.16.100 to detect a fetal heartbeat. 15 (b) A health care provider does not violate this section if the health care 16 provider performs a test in accordance with AS 18.16.100 to detect a fetal heartbeat 17 and does not detect a fetal heartbeat. 18 Sec. 18.16.120. Exception for medical emergency; records. (a) 19 AS 18.16.100 and 18.16.110 do not apply if a health care provider believes a medical 20 emergency exists that prevents compliance with those sections. 21 (b) A health care provider who performs or induces an abortion under 22 circumstances described in (a) of this section shall 23 (1) make written notations in the woman's medical record of 24 (A) the health care provider's belief that a medical emergency 25 necessitated the abortion; and 26 (B) the medical condition of the woman that prevented 27 compliance with AS 18.16.100 or 18.16.110; and 28 (2) maintain in the health care provider's practice records a copy of the 29 notations made under (1) of this subsection. 30 Sec. 18.16.130. Exception for preemption and intergovernmental 31 immunity. AS 18.16.100 and 18.16.110 do not apply to an abortion performed at the
01 behest of a federal agency, contractor, or employee that is carrying out duties under 02 federal law if a prohibition on the abortion would violate the doctrine of preemption or 03 doctrine of intergovernmental immunity. 04 Sec. 18.16.140. Limitations on public enforcement. Notwithstanding any 05 other provision of law, the requirements of AS 18.16.100 and 18.16.110 shall be 06 enforced exclusively through the private civil actions described in AS 18.16.150. 07 Except as provided in AS 18.16.150, the state, a political subdivision of the state, a 08 district attorney, or an officer or employee of the state or a political subdivision of the 09 state may not enforce or threaten to enforce, directly or indirectly, a provision of 10 AS 18.16.100 or 18.16.110 against a person, and a violation of AS 18.16.100 or 11 18.16.110 may not be used to justify or trigger the enforcement of another law or 12 adverse consequence under another law. 13 Sec. 18.16.150. Civil liability. (a) A person, other than the state, a political 14 subdivision of the state, or an officer or employee of a state or a political subdivision 15 of the state, may bring a civil action against another person who 16 (1) performs or induces an abortion in violation of AS 18.16.100 - 17 18.16.270; 18 (2) knowingly engages in conduct that aids or abets the performance or 19 inducement of an abortion, including paying for or reimbursing the costs of an 20 abortion through insurance or otherwise, if the abortion is performed or induced in 21 violation of AS 18.16.100 - 18.16.270, regardless of whether the person knows or 22 should know that the abortion is performed or induced in violation of AS 18.16.100 - 23 18.16.270; or 24 (3) intends to engage in the conduct described in (1) or (2) of this 25 subsection. 26 (b) If a claimant prevails in an action brought under this section, the court 27 shall award 28 (1) injunctive relief sufficient to prevent the defendant from violating 29 AS 18.16.100 - 18.16.270 or engaging in acts that aid or abet the performance of 30 abortions performed in violation of AS 18.16.100 - 18.16.270; 31 (2) statutory damages in an amount of not less than $10,000 for each
01 abortion that the defendant performed or induced in violation of AS 18.16.100 - 02 18.16.270 and for each abortion performed or induced in violation of AS 18.16.100 - 03 18.16.270 of which the defendant aided or abetted the performance or inducement; 04 (3) nominal and compensatory damages if the plaintiff has suffered 05 injury or harm, including loss of consortium and emotional distress, resulting from the 06 defendant's conduct; and 07 (4) costs and attorney fees. 08 (c) Notwithstanding (b) of this section, a court may not award relief under 09 (b)(2) or (4) of this section in response to a violation of (a)(1) or (2) of this section if 10 the defendant demonstrates that the defendant previously paid the full amount of 11 statutory damages awarded under (b)(2) of this section in a previous action for that 12 particular abortion performed or induced in violation of AS 18.16.100 - 18.16.270, or 13 for the particular conduct that aided or abetted the performance or inducement of an 14 abortion performed or induced in violation of AS 18.16.100 - 18.16.270. 15 (d) Notwithstanding any other provision of law, a person may not bring an 16 action under this section unless the action is commenced within six years after the 17 accrual of the cause of action. 18 (e) The following are not defenses to an action brought under this section: 19 (1) a defendant's ignorance or mistake of law; 20 (2) a defendant's belief that the requirements of AS 18.16.100 - 21 18.16.270 are or were unconstitutional; 22 (3) a defendant's reliance on a court decision that has been overruled 23 on appeal or by a subsequent court, even if that court decision had not been overruled 24 when the defendant engaged in conduct that violates AS 18.16.100 - 18.16.270; 25 (4) a defendant's reliance on a state or federal court decision that is not 26 binding on the court in which the action has been brought; 27 (5) nonmutual issue preclusion or nonmutual claim preclusion; 28 (6) the consent of the woman to the abortion; or 29 (7) any claim that the enforcement of AS 18.16.100 - 18.16.270 or the 30 imposition of civil liability against the defendant violates the constitutional rights of a 31 third party, except as provided in AS 18.16.160.
01 (f) This section may not be construed to impose liability for speech or conduct 02 protected by the First Amendment to the Constitution of the United States, as made 03 applicable to the states through the United States Supreme Court's interpretation of the 04 Fourteenth Amendment to the Constitution of the United States, or by art. I, sec. 5, 05 Constitution of the State of Alaska. 06 (g) Notwithstanding any other provision of law, the state, a political 07 subdivision of the state, a district attorney, or an officer or employee of the state or a 08 political subdivision of the state may not 09 (1) act in concert or participation with a person who brings an action 10 under this section; 11 (2) establish or attempt to establish an agency or fiduciary relationship 12 with a plaintiff who brings an action under this section; 13 (3) attempt to control or influence a plaintiff's decision to bring an 14 action under this section or the plaintiff's conduct of the litigation; or 15 (4) intervene in an action brought under this section. 16 (h) Subsection (g) of this section does not prohibit a person or entity described 17 in that subsection from filing an amicus curiae brief in an action brought under this 18 section, so long as that person or entity does not act in concert or participation with a 19 plaintiff bringing the action or violate any provision of that subsection. 20 (i) Notwithstanding any other provision of law, a court may not award costs or 21 attorney fees to a defendant who is sued under this section. 22 (j) Notwithstanding any other provision of law, a civil action may not be 23 brought under this section 24 (1) against a woman on whom an abortion was performed or induced 25 or attempted to be performed or induced in violation of this chapter or against a 26 woman who intends or seeks to abort her unborn child in violation of this chapter; 27 (2) against a person or entity that performs or attempts to perform, or 28 aids or abets or attempts to aid or abet the performance of, an abortion at the behest of 29 a federal agency, contractor, or employee that is carrying out duties under federal law 30 if a prohibition on that abortion would violate the doctrine of preemption or doctrine 31 of intergovernmental immunity;
01 (3) against a common carrier that transports a pregnant woman to an 02 abortion provider if the common carrier is unaware that the woman intends to abort 03 her unborn child; or 04 (4) by a person who impregnated a woman seeking an abortion 05 through an act of rape, sexual assault, sexual abuse of a minor, or incest. 06 Sec. 18.16.160. Civil liability: defenses. (a) A defendant in an action brought 07 under AS 18.16.150(a)(2) or (3) may assert an affirmative defense to liability if the 08 defendant reasonably believed, after conducting a reasonable investigation, that the 09 health care provider performing or inducing the abortion complied with or would 10 comply with AS 18.16.100 - 18.16.270. 11 (b) The defendant has the burden of proving an affirmative defense under (a) 12 of this section by a preponderance of the evidence. 13 (c) Nothing in AS 18.16.100 - 18.16.270 limits or precludes a defendant from 14 asserting the defendant's personal constitutional rights as a defense to liability under 15 AS 18.16.150, and a court may not award relief under AS 18.16.150 if the conduct for 16 which the defendant has been sued was an exercise of a state or federal constitutional 17 right that personally belongs to the defendant. 18 (d) Nothing in AS 18.16.100 - 18.16.270 limits or precludes a defendant from 19 asserting the unconstitutionality of a provision of this chapter or another law of the 20 state as a defense to liability under AS 18.16.150. 21 Sec. 18.16.170. Civil liability: venue. (a) A civil action brought under 22 AS 18.16.150 may be brought in 23 (1) the judicial district in which all or a substantial part of the events or 24 omissions giving rise to the claim occurred; 25 (2) the judicial district of residence of an individual defendant in the 26 action at the time the cause of action accrued; 27 (3) the judicial district of the principal office in this state of a 28 defendant in the action that is not an individual; or 29 (4) the judicial district of residence of the claimant if the claimant is an 30 individual residing in this state. 31 (b) Notwithstanding any other provision of law, a civil action brought under
01 AS 18.16.150 in a venue listed in (a) of this section may not be transferred to a 02 different venue without the written consent of all parties. 03 Sec. 18.16.180. Sovereign, governmental, and official immunity preserved. 04 (a) Notwithstanding any other provision of law, the state shall have sovereign 05 immunity, each political subdivision of the state shall have governmental immunity, 06 and each officer and employee of the state or a political subdivision of the state shall 07 have official immunity and sovereign or governmental immunity, as applicable, in an 08 action, claim, counterclaim, or legal or equitable action that challenges the validity of 09 a provision or application of AS 18.16.100 - 18.16.270, on constitutional grounds or 10 otherwise, or that seeks to prevent or enjoin the state, a political subdivision of the 11 state, or an officer or employee of the state or a political subdivision of the state from 12 enforcing a provision or application of AS 18.16.100 - 18.16.270, unless that 13 immunity has been abrogated or preempted by federal law in a manner consistent with 14 the Constitution of the United States. 15 (b) Notwithstanding any other provision of law, a provision of state law may 16 not be construed to waive or abrogate an immunity described in this section unless the 17 provision expressly waives or abrogates immunity with specific reference to this 18 section. 19 (c) Notwithstanding any other provision of law, an attorney representing the 20 state, a political subdivision of the state, or an officer or employee of the state or a 21 political subdivision of the state may not waive an immunity described in this section 22 or take an action that would result in a waiver of that immunity. 23 (d) Notwithstanding any other provision of law, a court of this state does not 24 have jurisdiction to consider an action, claim, or counterclaim that seeks declaratory or 25 injunctive relief to prevent the state, a political subdivision of the state, an officer or 26 employee of the state or a political subdivision of the state, or another person from 27 enforcing a provision or application of AS 18.16.100 - 18.16.270 or from filing a civil 28 action under this chapter. 29 (e) Nothing in AS 18.16.100 - 18.16.270 may be construed to prevent a 30 defendant from asserting the invalidity or unconstitutionality of a provision or 31 application of this chapter or another law of the state as a defense to an action, claim,
01 or counterclaim brought against that litigant. 02 Sec. 18.16.190. Award of attorney fees in actions challenging abortion 03 laws. (a) Notwithstanding any other provision of law, a person, including an entity, 04 attorney, or law firm, that seeks declaratory or injunctive relief to prevent the state, a 05 political subdivision of the state, a governmental entity or public official in the state, 06 or another person in the state from enforcing a statute, ordinance, regulation, or other 07 type of law that regulates or restricts abortion or that limits taxpayer funding for 08 individuals or entities that perform or promote abortions, in a state or federal court, or 09 that represents a litigant seeking the relief in a state or federal court, is jointly and 10 severally liable to pay the costs and attorney fees of the prevailing party. 11 (b) For purposes of this section, a party is considered a prevailing party if a 12 state or federal court 13 (1) dismisses a claim or cause of action brought against the party by 14 the litigant that seeks the declaratory or injunctive relief described in (a) of this 15 section, regardless of the reason for the dismissal; or 16 (2) enters judgment in the party's favor on the claim or cause of action. 17 (c) Regardless of whether a prevailing party sought to recover costs or 18 attorney fees in the underlying action, a prevailing party under this section may not 19 bring an action to recover costs and attorney fees against a person, including an entity, 20 attorney, or law firm, that sought the declaratory or injunctive relief described in (a) of 21 this section unless the action is commenced within three years after the date on which 22 (1) a dismissal or judgment as described in (b) of this section becomes 23 final on the conclusion of appellate review; or 24 (2) the time for seeking appellate review expires. 25 (d) It is not a defense to an action brought under (c) of this section that 26 (1) a prevailing party under this section failed to seek recovery of costs 27 or attorney fees in the underlying action; 28 (2) the court in the underlying action declined to recognize or enforce 29 the requirements of this section; or 30 (3) the court in the underlying action held that a provision of this 31 section is invalid, unconstitutional, or preempted by federal law, notwithstanding the
01 doctrines of issue or claim preclusion. 02 Sec. 18.16.200. Severability. (a) In accordance with Leavitt v. Jane L., 518 03 U.S. 137 (1996), in which, in the context of determining the severability of a state 04 statute regulating abortion, the United States Supreme Court held that an explicit 05 statement of legislative intent is controlling, it is the intent of the legislature that every 06 provision, section, subsection, sentence, clause, phrase, or word of AS 18.16.100 - 07 18.16.270 and every application of a provision of AS 18.16.100 - 18.16.270 to every 08 person, group of persons, or circumstance are severable from each other. 09 (b) If an application of a provision of AS 18.16.100 - 18.16.270 to a person, 10 group of persons, or circumstance is found by a court to be invalid, preempted, or 11 unconstitutional, or to impose an undue burden on a woman or group of women 12 seeking an abortion, the remaining applications of that provision to all other persons 13 and circumstances shall be severed and preserved, and shall remain in effect. All 14 constitutionally valid applications of the provisions of AS 18.16.100 - 18.16.270, and 15 every application of those provisions that can be enforced without imposing an undue 16 burden on women seeking an abortion, shall be severed from any application that a 17 court finds to be invalid, preempted, or unconstitutional, or to impose an undue burden 18 on women seeking an abortion, and the valid applications shall remain in force, as it is 19 the legislature's intent and priority that every valid application be allowed to stand 20 alone. Even if a reviewing court finds a provision of AS 18.16.100 - 18.16.270 to 21 impose an undue burden in a large or substantial fraction of relevant cases, the 22 applications that do not present an undue burden shall be severed from the remaining 23 applications, shall remain in force, and shall be treated as if the legislature had enacted 24 a statute limited to the persons, group of persons, or circumstances for which the 25 statute's application does not impose an undue burden. 26 (c) The legislature declares that it would have enacted AS 18.16.100 - 27 18.16.270, and each provision, section, subsection, sentence, clause, phrase, and word, 28 and all constitutional applications of the provisions of AS 18.16.100 - 18.16.270, 29 regardless of whether any provision, section, subsection, sentence, clause, phrase, 30 word, or application of AS 18.16.100 - 18.16.270 were declared invalid, preempted, or 31 unconstitutional or to impose an undue burden.
01 (d) If a provision of AS 18.16.100 - 18.16.270 is found by a court to be 02 unconstitutionally vague, any application of that provision that does not present 03 constitutional vagueness problems shall be severed and remain in force, consistent 04 with the severability requirements of (a) - (c) of this section. 05 (e) A court may not decline to enforce the severability requirements of (a) - 06 (d) of this section on the grounds that severance would rewrite the statute or involve 07 the court in legislative or lawmaking activity. A court that declines to enforce or 08 enjoins a state official from enforcing a statutory provision does not rewrite a statute, 09 as the statute continues to contain the same words as before the court's decision. A 10 judicial injunction or declaration of unconstitutionality 11 (1) is nothing more than an edict prohibiting enforcement that may 12 subsequently be vacated by a later court if the later court has a different understanding 13 of the requirements of the Constitution of the State of Alaska or the Constitution of the 14 United States; 15 (2) is not a formal amendment of the language in a statute; and 16 (3) no more rewrites a statute than a decision by the executive not to 17 enforce a duly enacted statute in a limited and defined set of circumstances. 18 (f) If a state or federal court disregards the severability requirements of (a) - 19 (e) of this section and declares or finds a provision of AS 18.16.100 - 18.16.270 20 facially unconstitutional, when there are discrete applications of that provision that can 21 be enforced against a person, a group of persons, or circumstances without violating 22 federal law, the Constitution of the State of Alaska, or the Constitution of the United 23 States, or imposing an undue burden on women seeking an abortion, that provision 24 shall be interpreted, as a matter of state law, as if the legislature had enacted a 25 provision limited to the person, group of persons, or circumstances for which the 26 provision's application will not violate federal law, the Constitution of the State of 27 Alaska, or the Constitution of the United States, or impose an undue burden on women 28 seeking an abortion, and every court shall adopt this saving construction of that 29 provision until the court ruling that pronounced the provision facially unconstitutional 30 is vacated or overruled. 31 Sec. 18.16.210. Department enforcement. The department shall enforce
01 AS 18.16.220 - 18.16.250. 02 Sec. 18.16.220. Required documentation. (a) If an abortion is performed or 03 induced on a woman because of a medical emergency, the health care provider who 04 performs or induces the abortion shall execute a written document that certifies the 05 abortion is necessary because of a medical emergency and specifies the woman's 06 medical condition requiring the abortion and the medical rationale for the health care 07 provider's conclusion that the abortion is necessary to address the medical condition. 08 (b) A health care provider who executes a document under (a) of this section 09 shall 10 (1) place the document in the woman's medical record; and 11 (2) maintain a copy of the document in the health care provider's 12 practice records. 13 (c) For an abortion other than an abortion described in (a) of this section, a 14 health care provider who performs or induces an abortion on a woman shall execute a 15 written document that specifies that maternal health is not a purpose of the abortion 16 and maintain a copy of the document in the health care provider's practice records. 17 Sec. 18.16.230. Sonogram required. (a) Before a sedative or anesthesia is 18 administered to a woman and at least 24 hours before an abortion is performed or 19 induced, or at least two hours before the abortion is performed or induced if the 20 woman waives the 24-hour requirement under (b) of this section, 21 (1) the health care provider who is to perform or induce the abortion or 22 an agent of the health care provider who is a sonographer certified by a national 23 registry of medical sonographers shall perform a sonogram on the woman; 24 (2) the health care provider who is to perform or induce the abortion 25 shall display the sonogram images in a quality consistent with current medical practice 26 and in a manner that allows the woman to view the images; 27 (3) the health care provider who is to perform or induce the abortion 28 shall provide, in a manner understandable to a layperson, an oral explanation of the 29 results of the sonogram, including a medical description of the dimensions of the 30 embryo or fetus, the presence of cardiac activity, and the presence of external 31 members and internal organs; and
01 (4) the health care provider who is to perform or induce the abortion or 02 an agent of the health care provider who is a sonographer certified by a national 03 registry of medical sonographers shall make audible during the sonogram the heart 04 auscultation, if present, for the woman to hear, in a quality consistent with current 05 medical practice, and shall provide, in a manner understandable to a layperson, a 06 simultaneous oral explanation of the heart auscultation. 07 (b) A woman may waive the 24-hour requirement in (a) of this section by 08 certifying that she currently lives 100 miles or more from the nearest abortion provider 09 that is a facility licensed under state law or a facility that performs more than 50 10 abortions in any 12-month period. 11 (c) Before receiving a sonogram under (a) of this section, before an abortion is 12 performed or induced, and before any sedative or anesthesia is administered, a woman 13 shall complete and certify with her signature an election form that states the following: 14 "Abortion and Sonogram Election 15 (1) The information and printed materials described in 16 AS 18.16.060 have been provided and explained to me. 17 (2) I understand the nature and consequences of an 18 abortion. 19 (3) I understand that state law requires that I receive a 20 sonogram before receiving an abortion. 21 (4) I understand that I have the option to view the 22 sonogram images. 23 (5) I understand that during the sonogram the fetal 24 heartbeat must be made audible so that I can hear it. 25 (6) I am making this election of my own free will and 26 without coercion. 27 (7) For a woman who lives 100 miles or more from the 28 nearest abortion provider that is a facility licensed under state law or a 29 facility that performs more than 50 abortions in any 12-month period 30 only: 31 I certify that, because I currently live 100 miles or more
01 from the nearest abortion provider that is a facility licensed 02 under state law or a facility that performs more than 50 03 abortions in any 12-month period, I waive the requirement to 04 wait 24 hours after the sonogram is performed before receiving 05 the abortion procedure. 06 My place of residence is: __________________. 07 ______________________________________________ 08 Signature Date." 09 (d) A health care provider may not perform or induce an abortion unless the 10 health care provider has received a copy of the signed, written certification required by 11 (c) of this section from the woman. 12 Sec. 18.16.240. Health care provider reporting requirements. (a) A health 13 care provider who performs an abortion at an abortion facility shall complete and 14 submit, not later than the 15th day of each month, a monthly report to the department 15 on the abortions performed by the health care provider at the abortion facility. The 16 report shall be submitted on a form provided by the department. A health care provider 17 is not required to submit a report for a calendar month in which the health care 18 provider did not perform an abortion. 19 (b) The report may not identify a patient or include any information that could 20 lead to the identification of a patient. 21 (c) The report must indicate, for each abortion performed, 22 (1) whether the abortion facility at which the abortion was performed 23 is licensed under AS 47; 24 (2) the patient's year of birth, race, marital status, and state and 25 borough or county of residence; 26 (3) the type of abortion procedure performed; 27 (4) the date the abortion was performed; 28 (5) whether the patient survived the abortion and, if the patient did not 29 survive the abortion, the patient's cause of death; 30 (6) the estimated postfertilization age of the unborn child based on the 31 best medical judgment of the attending health care provider at the time of the
01 procedure; 02 (7) the date, if known, of the first day of the patient's last menstrual 03 period; 04 (8) the number of previous live births of the patient; 05 (9) the number of previous induced abortions of the patient; and 06 (10) whether the abortion was performed or induced because of a 07 medical emergency and, if the abortion was performed or induced because of a 08 medical emergency, the medical condition of the patient that required the abortion. 09 (d) Except as provided by another law to the contrary, all information and 10 records held by the department under AS 18.16.100 - 18.16.270 are confidential, are 11 not public records under AS 40.25.110 or 40.25.125, and may not be released or made 12 public upon subpoena or otherwise, except that release may be made 13 (1) with the consent of each person, patient, health care provider, and 14 abortion facility identified in the information released; 15 (2) for statistical purposes; information released under this paragraph 16 may not identify any person, patient, health care provider performing an abortion, or 17 abortion facility; 18 (3) to medical personnel, appropriate state agencies, or the district or 19 superior court to enforce AS 18.16.100 - 18.16.270; or 20 (4) to appropriate state licensing boards to enforce state licensing laws. 21 (e) A person who violates (b), (c), or (d) of this section is guilty of a Class A 22 misdemeanor. 23 (f) The department shall establish and maintain a secure electronic reporting 24 system for the submission of the reports required by this section. The department shall 25 adopt procedures to enforce this section. 26 Sec. 18.16.250. Construction. (a) AS 18.16.100 - 18.16.270 do not create or 27 recognize a right to abortion before a fetal heartbeat is detected. 28 (b) AS 18.16.100 - 18.16.270 may not be construed to 29 (1) authorize the initiation of a cause of action against or the 30 prosecution of a woman on whom an abortion is performed or induced or attempted to 31 be performed or induced in violation of this chapter;
01 (2) wholly or partly repeal, either expressly or by implication, any 02 other statute that regulates or prohibits abortion; or 03 (3) restrict a political subdivision of the state from regulating or 04 prohibiting abortion in a manner that is at least as stringent as the laws of the state. 05 Sec. 18.16.260. Constitutional interpretation. To protect human life, nothing 06 in art. I, sec. 22, of the Constitution of the State of Alaska may be construed to secure 07 or protect a right to an abortion or require the state to fund an abortion. 08 Sec. 18.16.270. Definitions. In AS 18.16.100 - 18.16.270, 09 (1) "abortion" has the meaning given in AS 18.16.090; 10 (2) "department" means the Department of Health; 11 (3) "fetal heartbeat" means cardiac activity or the steady and repetitive 12 rhythmic contraction of the fetal heart within the gestational sac; 13 (4) "gestational age" means the amount of time that has elapsed from 14 the first day of a woman's last menstrual period; 15 (5) "gestational sac" means the structure comprising the 16 extraembryonic membranes that envelop an unborn child and that is typically visible 17 by ultrasound after the fourth week of pregnancy; 18 (6) "health care provider" has the meaning given in AS 18.23.070; 19 (7) "pregnancy" means the human female reproductive condition that 20 (A) begins with fertilization; 21 (B) occurs when the woman is carrying the developing human 22 offspring; and 23 (C) is calculated from the first day of a woman's last menstrual 24 period; 25 (8) "unborn child" means a human fetus or embryo in any stage of 26 gestation from fertilization until birth. 27 * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 INDIRECT COURT RULE AMENDMENTS. (a) AS 18.16.150(i) and 18.16.190, 30 enacted by sec. 18 of this Act, have the effect of changing Rule 82, Alaska Rules of Civil 31 Procedure, and Rule 508, Alaska Rules of Appellate Procedure, by limiting the court's
01 discretion in awarding costs and attorney fees in certain cases. 02 (b) AS 18.16.170(b), enacted by sec. 18 of this Act, has the effect of changing Rule 3, 03 Alaska Rules of Civil Procedure, by permitting a plaintiff to commence an action in any 04 judicial district and by preventing the court from granting a contested change of venue 05 motion. 06 * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 CONDITIONAL EFFECT. (a) AS 18.16.150(i) and 18.16.190, enacted by sec. 18 of 09 this Act, take effect only if sec. 19(a) of this Act receives the two-thirds majority vote of each 10 house required by art. IV, sec. 15, Constitution of the State of Alaska. 11 (b) AS 18.16.170(b), enacted by sec. 18 of this Act, takes effect only if sec. 19(b) of 12 this Act receives the two-thirds majority vote of each house required by art. IV, sec. 15, 13 Constitution of the State of Alaska. 14 * Sec. 21. This Act takes effect immediately under AS 01.10.070(c).