FETAL HEARTBEAT ACT

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HOUSE BILL NO. 357

IN THE LEGISLATURE OF THE STATE OF ALASKA

THIRTY-FOURTH LEGISLATURE - SECOND SESSION

BY REPRESENTATIVES VANCE, McCabe, Tomaszewski, Underwood, St. Clair, G.Nelson, Moore, Elam,
Allard

Introduced: 2/23/26
Referred: Health and Social Services, Judiciary

A BILL

FOR AN ACT ENTITLED

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