81R10539 JSC-F
By: Shapiro S.B. No. 2571
A BILL TO BE ENTITLED
AN ACT
relating to informed and voluntary consent for an abortion and the
collection and reporting of information related to the performance
of an abortion; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subchapter B, Chapter 171, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER B. VOLUNTARY AND INFORMED CONSENT
SECTION 2. Section 171.018, Health and Safety Code, is
amended to read as follows:
Sec. 171.018. OFFENSE. A physician who intentionally
performs an abortion on a woman in violation of Section 171.011
[this subchapter] commits an offense. An offense under this
section is a misdemeanor punishable by a fine not to exceed $10,000.
In this section, "intentionally" has the meaning assigned by
Section 6.03(a), Penal Code.
SECTION 3. Subchapter B, Chapter 171, Health and Safety
Code, is amended by adding Sections 171.019, 171.020, 171.021, and
171.022 to read as follows:
Sec. 171.019. PREVENTION OF COERCED ABORTIONS. (a) Before
performing an abortion, a physician shall:
(1) verbally inform the woman on whom the abortion is
to be performed that a person cannot coerce or force her to have an
abortion and that the physician cannot perform the abortion unless
the woman provides her voluntary and informed consent;
(2) provide the woman on whom the abortion is to be
performed with the coerced abortion form described by Section
171.021:
(A) in both English and Spanish; and
(B) in a language other than English or Spanish,
if applicable, under Section 171.021(c); and
(3) provide the woman with access to a telephone in a
private room.
(b) A doctor may not perform an abortion on a woman unless,
before the abortion, the woman certifies on the coerced abortion
form described by Section 171.021 that she received from the
physician the information and materials required by Subsection (a).
(c) If the woman indicates on the coerced abortion form or
on the abortion reporting form required by Section 171.051 that she
is being coerced to have an abortion performed, the physician:
(1) shall report abuse or neglect under Chapter 261,
Family Code, if applicable;
(2) shall provide the referral required by Section
171.020(2); and
(3) may not perform the abortion until the woman
provides her voluntary and informed consent that the woman states
is not a result of coercion.
Sec. 171.020. REFERRAL TO DOMESTIC VIOLENCE ASSISTANCE.
The department shall require each physician who performs an
abortion to:
(1) maintain a list of domestic violence shelters and
assistance programs that do not provide or refer for abortions; and
(2) provide a referral to a domestic violence shelter
or assistance program that does not provide or refer for abortions
if the woman seeking an abortion communicates to the facility, the
physician, or an agent of the physician who is performing the
abortion that the woman is being abused or is being coerced to have
the abortion.
Sec. 171.021. CONTENTS OF FORM. (a) The department shall
develop a coerced abortion form to be completed by each woman on
whom an abortion is performed in this state. The form must include:
(1) the following title centered on the page in
boldfaced capital letters in 18-point font or larger: "NOTICE";
(2) the following statement printed in 14-point font
or larger: "It is against the law for a person, regardless of that
person's relationship to you, to coerce or force you to have an
abortion. By law, a physician cannot perform an abortion, including
inducing, prescribing for, or otherwise providing the means for an
abortion, unless you give your voluntary and informed consent
without coercion or force. It is against the law for a physician to
perform an abortion against your will. You have the right to contact
any local or state law enforcement agency to receive protection
from any actual or threatened physical abuse or violence.";
(3) the following statements printed in 14-point font
or larger followed by spaces for the woman to initial:
(A) "I have been informed in person that no one
can coerce or force me to have an abortion and that an abortion
cannot be provided to me unless I provide my voluntary and informed
consent.";
(B) "I have read the above notice and understand
that I have legal protection against being coerced or forced to have
an abortion."; and
(C) "I understand that I will be given access to a
telephone in a private room.";
(4) spaces for the signature of the woman on whom an
abortion is to be performed and the date the form was completed; and
(5) spaces for the license number, area of specialty,
and signature of the physician who performed the abortion.
(b) The department shall provide the form required by
Subsection (a) in both English and Spanish.
(c) If the department determines that a substantial number
of residents in this state speak a primary language other than
English or Spanish, the department shall provide the form required
by Subsection (a) in that language. The department shall instruct a
facility that provides abortions to provide the coerced abortion
form in a language other than English or Spanish if the department
determines that a substantial number of residents in the area speak
a primary language other than English or Spanish.
Sec. 171.022. PROVISION, SUBMISSION, AND RETENTION OF
COERCED ABORTION FORM. (a) The department shall provide a copy of
this section and the coerced abortion form required by Section
171.019 to:
(1) a physician who becomes newly licensed to practice
in this state, not later than the 30th day after the date the
physician receives the license; and
(2) all physicians licensed to practice in this state,
not later than December 1 of each year.
(b) A physician who performs an abortion shall submit a
coerced abortion form, completed by the woman on whom the abortion
is performed, to the department for each abortion the physician
performs.
(c) The original coerced abortion form shall be submitted by
mail.
(d) A copy of the coerced abortion form certified by the
woman shall be placed in the woman's medical file and kept until at
least the seventh anniversary of the date on which the form was
signed or, if the woman is a minor, at least until the date the woman
reaches 20 years of age, whichever is later.
(e) The woman on whom an abortion is performed shall be
given a copy of the completed coerced abortion form in person before
the woman leaves the facility where the abortion is performed.
SECTION 4. Chapter 171, Health and Safety Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. ABORTION REPORTING
Sec. 171.051. ABORTION REPORTING FORM. (a) A physician who
performs an abortion must submit a report by mail to the department
on each abortion the physician performs. The report must be
submitted on a form provided by the department.
(b) The report may not identify the name of the patient by
any means.
(c) The abortion reporting form for each abortion must
include the following information to be completed by the patient:
(1) the patient's age, race or ethnicity, and marital
status and municipality, county, state, and nation of residence;
(2) the age of the father of the unborn child at the
time of the abortion;
(3) a space for the patient to indicate the specific
reason the abortion was performed, including:
(A) the mother feels coerced or forced to have
the abortion;
(B) the mother has all the children she wants;
(C) the mother cannot afford the child;
(D) the child has been diagnosed with one or more
health problems that are documented in the medical records of the
mother;
(E) the father of the child opposes the
pregnancy;
(F) a parent of the mother of the unborn child
opposes the pregnancy;
(G) the mother fears a loss of family support;
(H) the mother fears losing her job;
(I) a school counselor recommends abortion;
(J) a physician recommends abortion;
(K) the pregnancy was a result of rape;
(L) the pregnancy was a result of incest; or
(M) the mother does not wish to complete this
section;
(4) the number of previous live births of the patient;
(5) the number of previous induced abortions of the
patient;
(6) the number of previous miscarriages or spontaneous
abortions of the patient;
(7) the source of referral for the abortion,
including:
(A) a physician;
(B) self;
(C) a friend or family member;
(D) a member of the clergy;
(E) a school counselor;
(F) a social services agency;
(G) the Department of State Health Services;
(H) a family planning agency; or
(I) other (specify): ___________________; and
(8) whether or not the woman availed herself of the
opportunity to view the printed information required by Subchapter
B, and, if so, whether the woman viewed the information described in
Section 171.014, through the Internet or by booklet.
(d) The abortion reporting form for each abortion must
include the following information to be completed by the physician:
(1) the name of the abortion facility at which the
abortion was performed, the municipality and county in which the
facility is located, and whether the facility:
(A) is licensed as an abortion facility under
Chapter 245;
(B) is operating as the private office of a
licensed physician;
(C) is a licensed hospital;
(D) is a licensed hospital satellite clinic; or
(E) is a licensed ambulatory surgical center;
(2) the license number, area of specialty, and
signature of the physician who performed or induced the abortion;
(3) the type of abortion procedure, including:
(A) nonsurgical abortion, specifying the
medication or chemical used;
(B) suction and curettage;
(C) dilation and curettage;
(D) dilation and evacuation;
(E) labor and induction;
(F) dilation and extraction;
(G) hysterotomy or hysterectomy; or
(H) other (specify): ________;
(4) the date the abortion was performed;
(5) whether the patient survived the abortion, and if
the patient did not survive, the cause of death;
(6) the number of fetuses the patient was carrying;
(7) the number of weeks of gestation based on the best
medical judgment of the attending physician at the time of the
procedure and the weight of the fetus or fetuses, if determinable;
(8) the method of pregnancy verification, including:
(A) urine test;
(B) clinical lab test;
(C) ultrasound;
(D) not tested; or
(E) other (specify): ____________________;
(9) whether the abortion was paid for by:
(A) private insurance;
(B) a public health plan; or
(C) personal payment by patient;
(10) whether there was no insurance coverage or
insurance coverage was provided by:
(A) a fee-for-service insurance company;
(B) a managed care company; or
(C) another source (specify): ________________;
(11) the total fee collected for performing the
abortion, including any services related to the abortion;
(12) the type of anesthetic, if any, used for each
abortion performed, and whether anesthetic was used for the woman,
the unborn child or children, or both;
(13) the method used to dispose of the fetal tissue and
remains;
(14) complications for each abortion, including:
(A) none;
(B) shock;
(C) uterine perforation;
(D) cervical laceration;
(E) hemorrhage;
(F) aspiration or allergic response;
(G) infection or sepsis;
(H) infant or infants born alive;
(I) death of mother; or
(J) other (specify): __________; and
(15) if the infant or infants were born alive:
(A) whether life-sustaining measures were
provided to the infant or infants; and
(B) the period of time the infant or infants
survived.
(e) If the patient is a minor, the report on each abortion
must include:
(1) whether the minor's parent, managing conservator,
or legal guardian provided the written consent required by Section
164.052(a)(19), Occupations Code, and, if so, whether the consent
was given:
(A) in person at the time of the abortion; or
(B) at a place other than the location at which
the abortion is performed or induced;
(2) whether the physician concluded and documented in
writing in the patient's medical record that on the basis of the
physician's good faith clinical judgment a condition existed that
complicated the medical condition of the pregnant minor and
necessitated the immediate abortion of her pregnancy to avert her
death or to avoid a serious risk of substantial impairment of a
major bodily function and that there was insufficient time to
obtain the consent of the minor's parent, managing conservator, or
legal guardian;
(3) whether the minor was emancipated and permitted to
have the abortion without the written consent required by Section
164.052(a)(19), Occupations Code;
(4) whether judicial authorization was received,
waiving the written consent required by Section 164.052(a)(19),
Occupations Code; and
(5) if judicial authorization was received, the
process the physician or the physician's agent used to inform the
minor of the judicial bypass, whether court forms were provided to
her, and what entity made the court arrangement for the minor.
(f) The patient must fill out sections of the form under
Subsection (c). Sections to be filled out by the patient must be at
the top of the form. The bottom portion of the reporting form must
be completed by the physician performing the abortion. The
requirement that the patient fill out the patient's portion of the
form may be waived only if the abortion is performed to prevent the
death of the mother or to avoid harm to a mother described by
Section 164.052(a)(18), Occupations Code, or harm to a mother who
is a minor described by Section 164.052(a)(19), Occupations Code.
If the requirement that the patient fill out the patient's portion
of the form is waived under this subsection, the physician
performing the abortion shall include in the patient's medical
records a signed written statement certifying the nature of the
medical emergency.
(g) A copy of the abortion reporting form must be maintained
in the patient's medical file at least until the seventh
anniversary of the date of the abortion. The patient must be given
a copy of the completed abortion reporting form in person after the
physician and patient complete the form.
(h) The department shall provide the abortion reporting
form required by this section, together with a copy of this section
to:
(1) a physician who becomes newly licensed to practice
in this state, not later than the 30th day after the date the
physician receives the license; and
(2) all physicians licensed to practice in this state,
not later than December 1 of each year.
Sec. 171.052. ABORTION COMPLICATION REPORT. (a) A
physician practicing in the state who treats an illness or injury
related to complications from an abortion shall complete and submit
an abortion complication report to the department. The report must
be submitted by mail on the form provided by the department.
(b) The department shall prepare an abortion complication
report form for all physicians licensed and practicing in this
state. A copy of this section must be attached to the form. The
form must include:
(1) the date and type of the original abortion,
including:
(A) nonsurgical abortion, specifying the
medication or chemical used;
(B) suction and curettage;
(C) dilation and curettage;
(D) dilation and evacuation;
(E) labor and induction;
(F) dilation and extraction;
(G) hysterotomy or hysterectomy; or
(H) other (specify): ______________;
(2) the name and type of facility where the abortion
complication was diagnosed and treated, including:
(A) an abortion facility licensed under Chapter
245;
(B) a private office of a licensed physician;
(C) a licensed hospital;
(D) a licensed hospital satellite clinic; or
(E) a licensed ambulatory surgical center;
(3) the name and type of facility where the abortion
was performed, if known;
(4) the license number, area of specialty, and
signature of the physician who treated the abortion complication;
(5) the date on which the abortion complication was
diagnosed and treated;
(6) a description of the abortion complication,
including:
(A) none;
(B) shock;
(C) uterine perforation;
(D) cervical laceration;
(E) hemorrhage;
(F) aspiration or allergic response;
(G) infection or sepsis;
(H) infant or infants born alive;
(I) death of mother; or
(J) other (specify): ________________;
(7) the patient's age, race or ethnicity, and marital
status and municipality, county, state, and nation of residence;
(8) the number of weeks of gestation at which the
abortion was performed based on the best medical judgment of the
attending physician at the time of treatment for the abortion
complication;
(9) the number of previous live births of the patient;
(10) the number of previous induced abortions for the
patient;
(11) the number of previous miscarriages or
spontaneous abortions of the patient;
(12) whether treatment for the abortion complication
was paid for by:
(A) private insurance;
(B) a public health plan; or
(C) personal payment by the patient;
(13) the total fee collected for treatment for the
abortion complication;
(14) whether there was no insurance coverage or
insurance coverage was provided by:
(A) a fee-for-service insurance company;
(B) a managed care company; or
(C) another provider; and
(15) the type of follow-up care recommended.
(c) The department shall provide the abortion complication
form required by this section, together with a copy of this section,
to:
(1) a physician who becomes newly licensed to practice
in this state, not later than the 30th day after the date the
physician receives the license; and
(2) all physicians licensed to practice in this state,
not later than December 1 of each year.
(d) A copy of the abortion complication report form must be
maintained in the patient's medical file until the seventh
anniversary of the date the abortion complication was diagnosed and
treated. The patient must receive a copy of the completed form in
person before the patient leaves the facility.
SECTION 5. Chapter 171, Health and Safety Code, is amended
by adding Subchapter D to read as follows:
SUBCHAPTER D. PROVISIONS RELATING TO REPORTS; PENALTIES
Sec. 171.061. REPORTING REQUIREMENTS. (a) A physician
performing an abortion shall complete and submit an abortion
reporting form to the department for each abortion as required by
Section 171.051 not later than the 15th day of each month for
abortions performed in the previous calendar month.
(b) A physician required to submit an abortion complication
report to the department by Section 171.052 shall submit the report
as soon as practicable after diagnosis or treatment of the abortion
complication, but in no case more than seven days after the date of
the diagnosis or treatment.
(c) A physician performing an abortion shall submit a
certified coerced abortion form for each abortion to the department
as required by Section 171.022 not later than the 15th day of each
month for abortions performed in the previous calendar month.
(d) Not later than April 1 of each year, the department
shall issue in aggregate a public report summarizing the
information submitted on each individual report required by
Sections 171.051 and 171.052. The public report shall cover the
entire previous calendar year and shall be compiled from the data in
all the abortion reporting forms and the abortion complication
reports submitted to the department in accordance with Sections
171.051 and 171.052. Each public report shall also provide
information for all previous calendar years, adjusted to reflect
any additional information from late or corrected reports. The
department shall ensure that none of the information included in
the public reports could reasonably lead to identification of any
physician who performed an abortion or treated abortion-related
complications or of any woman who has had an abortion.
(e) Except as provided by Subsection (d) and Section
245.023, all information and records held by the department under
this subchapter and Subchapters B and C are confidential and are not
open records for the purposes of Chapter 552, Government Code. That
information may not be released or made public, except that release
may be made:
(1) for statistical purposes, but only if a person,
patient, physician, or facility is not identified;
(2) with the consent of each person, patient,
physician, and facility identified in the information released;
(3) to medical personnel, appropriate state agencies,
or county and district courts to enforce this chapter or Chapter
245; or
(4) to appropriate state licensing boards to enforce
state licensing laws.
(f) The department or an employee of the department may not
disclose to a person or entity outside of the department the form or
contents of the form described by Section 171.021 or the reports or
contents of the reports required by this section and Sections
171.051 and 171.052 in a manner or fashion that permits the person
or entity to whom the form or report is disclosed to identify in any
way a person who is the signatory of the form or the subject of the
report.
Sec. 171.062. PENALTIES. (a) A physician who does not file
a form required by Section 171.022 or submit a report required by
Section 171.051 or 171.052 within 30 days of the date the form or
report was due is subject to a late fee of $500 for each additional
30-day period or portion of a 30-day period the report is overdue.
(b) A physician required to file a form by Section 171.022
or a report by Section 171.051 or 171.052 who has not submitted a
complete form or report before the first anniversary of the date the
form or report was due is subject to a late fee under Subsection (a)
and, in an action brought by the department, may be directed by a
court to submit a complete form or report within a period stated by
court order or be subject to sanctions for civil contempt.
Sec. 171.063. OFFENSE. (a) A person commits an offense if
a person:
(1) fails to submit a form or report required by this
subchapter or Subchapters B and C;
(2) intentionally, knowingly, or recklessly submits
false information on a form or report required by this subchapter or
Subchapters B and C;
(3) includes the name or identifying information of
the woman who had the abortion in a form or report required by this
subchapter or Subchapter C; or
(4) includes the name or identifying information of a
physician in a public report required by Section 171.061(d).
(b) A person who discloses confidential identifying
information in violation of Section 171.061(f) commits an offense.
(c) A physician commits an offense if the physician performs
an abortion and the physician reasonably believes that the abortion
is the result of coercion, as defined by Section 1.07, Penal Code.
(d) An offense under this section is a Class A misdemeanor.
SECTION 6. Section 245.001, Health and Safety Code, is
amended to read as follows:
Sec. 245.001. SHORT TITLE. This chapter may be cited as the
Texas Abortion Facility [Reporting and] Licensing Act.
SECTION 7. Section 245.005(e), Health and Safety Code, is
amended to read as follows:
(e) As a condition for renewal of a license, the licensee
must submit to the department the annual license renewal fee and an
annual report[, including the report required under Section
245.011].
SECTION 8. Section 248.003, Health and Safety Code, is
amended to read as follows:
Sec. 248.003. EXEMPTIONS. This chapter does not apply to:
(1) a home and community support services agency
required to be licensed under Chapter 142;
(2) a person required to be licensed under Chapter 241
(Texas Hospital Licensing Law);
(3) an institution required to be licensed under
Chapter 242;
(4) an ambulatory surgical center required to be
licensed under Chapter 243 (Texas Ambulatory Surgical Center
Licensing Act);
(5) a birthing center required to be licensed under
Chapter 244 (Texas Birthing Center Licensing Act);
(6) a facility required to be licensed under Chapter
245 (Texas Abortion Facility [Reporting and] Licensing Act);
(7) a child care institution, foster group home,
foster family home, and child-placing agency, for children in
foster care or other residential care who are under the
conservatorship of the Department of Protective and Regulatory
Services; or
(8) a person providing medical or nursing care or
services under a license or permit issued under other state law.
SECTION 9. Section 245.011, Health and Safety Code, is
repealed.
SECTION 10. (a) Not later than December 1, 2009, the
Department of State Health Services shall provide for distribution
of the forms required by Subchapter B, Chapter 171, Health and
Safety Code, as amended by this Act, and Subchapter C, Chapter 171,
Health and Safety Code, as added by this Act, along with
instructions for completing the forms.
(b) Not later than January 1, 2010, the Department of State
Health Services shall distribute forms as required by Sections
171.022(a), 171.051(h), and 171.052(c), Health and Safety Code, as
added by this Act.
(c) A physician is not required to submit a form or report
under Sections 171.022, 171.051, and 171.052, Health and Safety
Code, as added by this Act, before January 1, 2010.
(d) The changes in law made by this Act apply only to an
offense committed on or after January 1, 2010. For purposes of this
section, an offense is committed before January 1, 2010, if any
element of the offense occurs before that date. An offense
committed before January 1, 2010, is covered by the law in effect
when the offense was committed, and the former law is continued in
effect for that purpose.
SECTION 11. (a) Except as provided by Subsection (b) or
(c) of this section, this Act takes effect September 1, 2009.
(b) Section 171.063, Health and Safety Code, as added by
this Act, takes effect January 1, 2010.
(c) Sections 7 and 9 of this Act take effect January 1, 2010.