Bill Text For HB2780 - Introduced

 1|                          STATE OF OKLAHOMA                            |
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 2|             2nd Session of the 52nd Legislature (2010)                |
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 3|HOUSE BILL 2780                      By: Billy                         |
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  |                            AS INTRODUCED                              |
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  |       An Act relating to abortion; defining terms;                    |
 8|       requiring performance of an ultrasound and                      |
  |       explanation of the ultrasound prior to a pregnant               |
 9|       woman having an abortion; providing for aversion of             |
  |       eyes from ultrasound; excepting compliance with                 |
10|       requirement in a medical emergency; providing for               |
  |       certification; requiring retention of records;                  |
11|       providing penalty for false certification; providing            |
  |       for damages; authorizing injunctive relief;                     |
12|       specifying persons who may bring action for                     |
  |       noncompliance with act; providing penalty; providing            |
13|       penalties for noncompliance with injunction;                    |
  |       authorizing private right of action; providing for              |
14|       revocation of license or certificate; repealing                 |
  |       Section 6, Chapter 200, O.S.L. 2005, as last amended            |
15|       by Section 11, Chapter 36, O.S.L. 2008, Section 12,             |
  |       Chapter 36, O.S.L. 2008, as amended by Section 1,               |
16|       Chapter 173, O.S.L. 2008 and Section 13, Chapter 36,            |
  |       O.S.L. 2008 (63 O.S. Supp. 2009, Sections 1-738.1,              |
17|       1-738.3b and 1-738.3c), which relate to requiring an            |
  |       ultrasound be performed prior to a pregnant woman               |
18|       having an abortion; providing for codification;                 |
  |       providing for severability; and declaring an                    |
19|       emergency.                                                      |
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22|BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:                  |
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   Req. No. 9456                                                   Page 1
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 1|    SECTION 1.     NEW LAW     A new section of law to be codified     |
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 2|in the Oklahoma Statutes as Section 1-738.1A of Title 63, unless       |
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 3|there is created a duplication in numbering, reads as follows:         |
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 4|    As used in this section and Sections 1-738.2 through 1-738.5 of    |
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 5|Title 63 of the Oklahoma Statutes:                                     |
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 6|    1.  "Abortion" means the term as defined in Section 1-730 of       |
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 7|Title 63 of the Oklahoma Statutes;                                     |
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 8|    2.  "Attempt to perform an abortion" means an act, or an           |
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 9|omission of a statutorily required act, that, under the                |
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10|circumstances as the actor believes them to be, constitutes a          |
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11|substantial step in a course of conduct planned to culminate in the    |
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12|performance of an abortion in this state in violation of this act;     |
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13|    3.  "Board" means the State Board of Medical Licensure and         |
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14|Supervision;                                                           |
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15|    4.  "Certified technician" means a Registered Diagnostic Medical   |
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16|Sonographer who is certified in obstetrics and gynecology by the       |
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17|American Registry for Diagnostic Medical Sonography (ARDMS), or a      |
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18|nurse midwife or Advance Practice Nurse Practitioner in obstetrics     |
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19|with certification in obstetrical ultrasonography;                     |
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20|    5.  "Medical emergency" means the existence of any physical        |
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21|condition, not including any emotional, psychological, or mental       |
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22|condition, which a reasonably prudent physician, with knowledge of     |
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23|the case and treatment possibilities with respect to the medical       |
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24|conditions involved, would determine necessitates the immediate        |
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   Req. No. 9456                                                   Page 2
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 1|abortion of the pregnancy of the female to avert her death or to       |
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 2|avert substantial and irreversible impairment of a major bodily        |
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 3|function arising from continued pregnancy;                             |
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 4|    6.  "Physician" means a person licensed to practice medicine in    |
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 5|this state pursuant to Sections 495 and 633 of Title 59 of the         |
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 6|Oklahoma Statutes;                                                     |
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 7|    7.  "Probable gestational age of the unborn child" means what,     |
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 8|in the judgment of the physician, will with reasonable probability     |
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 9|be the gestational age of the unborn child at the time the abortion    |
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10|is planned to be performed;                                            |
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11|    8.  "Stable Internet website" means a website that, to the         |
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12|extent reasonably practicable, is safeguarded from having its          |
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13|content altered other than by the State Board of Medical Licensure     |
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14|and Supervision;                                                       |
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15|    9.  "Unborn child" means the term as is defined in Section 1-730   |
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16|of Title 63 of the Oklahoma Statutes; and                              |
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17|    10.  "Woman" means a female human being whether or not she has     |
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18|reached the age of majority.                                           |
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19|    SECTION 2.     NEW LAW     A new section of law to be codified     |
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20|in the Oklahoma Statutes as Section 1-738.3d of Title 63, unless       |
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21|there is created a duplication in numbering, reads as follows:         |
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22|    A.  Any abortion provider who knowingly performs any abortion      |
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23|shall comply with the requirements of this section.                    |
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   Req. No. 9456                                                   Page 3
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 1|    B.  In order for the woman to make an informed decision, at        |
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 2|least one (1) hour prior to a woman having any part of an abortion     |
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 3|performed or induced, and prior to the administration of any           |
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 4|anesthesia or medication in preparation for the abortion on the        |
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 5|woman, the physician who is to perform or induce the abortion, or      |
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 6|the certified technician working in conjunction with the physician,    |
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 7|shall:                                                                 |
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 8|    1.  Perform an obstetric ultrasound on the pregnant woman, using   |
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 9|either a vaginal transducer or an abdominal transducer, whichever      |
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10|would display the embryo or fetus more clearly;                        |
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11|    2.  Provide a simultaneous explanation of what the ultrasound is   |
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12|depicting;                                                             |
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13|    3.  Display the ultrasound images so that the pregnant woman may   |
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14|view them;                                                             |
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15|    4.  Provide a medical description of the ultrasound images,        |
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16|which shall include the dimensions of the embryo or fetus, the         |
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17|presence of cardiac activity, if present and viewable, and the         |
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18|presence of external members and internal organs, if present and       |
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19|viewable; and                                                          |
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20|    5.  Obtain a written certification from the woman, prior to the    |
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21|abortion, that the requirements of this subsection have been           |
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22|complied with; and                                                     |
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23|    6.  Retain a copy of the written certification prescribed by       |
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24|paragraph 5 of this subsection.  The certification shall be placed     |
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   Req. No. 9456                                                   Page 4
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 1|in the medical file of the woman and shall be kept by the abortion     |
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 2|provider for a period of not less than seven (7) years.  If the        |
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 3|woman is a minor, then the certification shall be placed in the        |
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 4|medical file of the minor and kept for at least seven (7) years or     |
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 5|for five (5) years after the minor reaches the age of majority,        |
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 6|whichever is greater.                                                  |
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 7|    C.  Nothing in this section shall be construed to prevent a        |
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 8|pregnant woman from averting her eyes from the ultrasound images       |
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 9|required to be provided to and reviewed with her.  Neither the         |
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10|physician nor the pregnant woman shall be subject to any penalty if    |
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11|she refuses to look at the presented ultrasound images.                |
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12|    D.  Upon a determination by an abortion provider that a medical    |
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13|emergency, as defined in Section 1 of this act, exists with respect    |
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14|to a pregnant woman, subsection B of this section shall not apply      |
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15|and the provider shall certify in writing the specific medical         |
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16|conditions that constitute the emergency.  The certification shall     |
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17|be placed in the medical file of the woman and shall be kept by the    |
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18|abortion provider for a period of not less than seven (7) years.  If   |
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19|the woman is a minor, then the certification shall be placed in the    |
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20|medical file of the minor and kept for at least seven (7) years or     |
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21|for five (5) years after the minor reaches the age of majority,        |
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22|whichever is greater.                                                  |
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   Req. No. 9456                                                   Page 5
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 1|    E.  An abortion provider who willfully falsifies a certification   |
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 2|under subsection D of this section shall be subject to all penalties   |
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 3|provided for under Section 3 of this act.                              |
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 4|    SECTION 3.     NEW LAW     A new section of law to be codified     |
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 5|in the Oklahoma Statutes as Section 1-738.3e of Title 63, unless       |
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 6|there is created a duplication in numbering, reads as follows:         |
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 7|    A.  An abortion provider who knowingly violates a provision of     |
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 8|Section 2 of this act shall be liable for damages as provided in       |
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 9|this section and may be enjoined from such acts in accordance with     |
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10|this section in an appropriate court.                                  |
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11|    B.  A cause of action for injunctive relief against any person     |
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12|who has knowingly violated a provision of Section 2 of this act may    |
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13|be maintained by the woman upon whom an abortion was performed or      |
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14|attempted to be performed in violation of this act; any person who     |
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15|is the spouse, parent, sibling or guardian of, or a current or         |
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16|former licensed health care provider of, the female upon whom an       |
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17|abortion has been performed or attempted to be performed in            |
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18|violation of this act; by a district attorney with appropriate         |
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19|jurisdiction; or by the Attorney General.  The injunction shall        |
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20|prevent the abortion provider from performing further abortions in     |
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21|violation of this act in the State of Oklahoma.                        |
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22|    C.  Any person who knowingly violates the terms of an injunction   |
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23|issued in accordance with this section shall be subject to civil       |
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24|contempt, and shall be fined Ten Thousand Dollars ($10,000.00) for     |
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   Req. No. 9456                                                   Page 6
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 1|the first violation, Fifty Thousand Dollars ($50,000.00) for the       |
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 2|second violation, One Hundred Thousand Dollars ($100,000.00) for the   |
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 3|third violation, and for each succeeding violation an amount in        |
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 4|excess of One Hundred Thousand Dollars ($100,000.00) that is           |
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 5|sufficient to deter future violations.  The fines shall be the         |
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 6|exclusive penalties for such contempt.  Each performance or            |
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 7|attempted performance of an abortion in violation of the terms of an   |
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 8|injunction is a separate violation.  These fines shall be              |
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 9|cumulative.  No fine shall be assessed against the woman on whom an    |
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10|abortion is performed or attempted.                                    |
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11|    D.  A pregnant woman upon whom an abortion has been performed in   |
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12|violation of Section 2 of this act, or the parent or legal guardian    |
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13|of the woman if she is an unemancipated minor, as defined in Section   |
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14|1-740.1 of Title 63 of the Oklahoma Statutes, may commence a civil     |
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15|action against the abortion provider for any knowing or reckless       |
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16|violation of this act for actual and punitive damages.                 |
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17|    E.  An abortion provider who performed an abortion in violation    |
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18|of Section 2 of this act shall be considered to have engaged in        |
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19|unprofessional conduct for which the provider's certificate or         |
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20|license to provide health care services in this state may be           |
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21|suspended or revoked by the State Board of Medical Licensure and       |
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22|Supervision or the State Board of Osteopathic Examiners.               |
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23|    SECTION 4.     REPEALER     Section 6, Chapter 200, O.S.L. 2005,   |
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24|as last amended by Section 11, Chapter 36, O.S.L. 2008, Section 12,    |
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   Req. No. 9456                                                   Page 7
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 1|Chapter 36, O.S.L. 2008, as amended by Section 1, Chapter 173,         |
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 2|O.S.L. 2008 and Section 13, Chapter 36, O.S.L. 2008 (63 O.S. Supp.     |
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 3|2009, Sections 1-738.1, 1-738.3b and 1-738.3c), are hereby repealed.   |
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 4|    SECTION 5.  The provisions of this act are severable and if any    |
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 5|part or provision shall be held void the decision of the court so      |
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 6|holding shall not affect or impair any of the remaining parts or       |
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 7|provisions of this act.                                                |
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 8|    SECTION 6.  It being immediately necessary for the preservation    |
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 9|of the public peace, health and safety, an emergency is hereby         |
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10|declared to exist, by reason whereof this act shall take effect and    |
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11|be in full force from and after its passage and approval.              |
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13|    52-2-9456      AM     01/12/10                                     |
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   Req. No. 9456                                                   Page 8
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