82R8894 YDB-D
By: Lavender H.B. No. 2659
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting abortion except when medically necessary or
when the pregnancy is the result of rape or incest.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 170, Health and Safety
Code, is amended to read as follows:
CHAPTER 170. ABORTION PROHIBITED [ACTS REGARDING ABORTION]
SECTION 2. Section 170.002, Health and Safety Code, is
amended to read as follows:
Sec. 170.002. ABORTION PROHIBITED [ACTS]; EXEMPTION. (a)
Except as provided by Subsection (b), a person may not
intentionally or knowingly perform an abortion on a woman who is
pregnant [with a viable unborn child during the third trimester of
the pregnancy].
(b) Subsection (a) does not prohibit a person from
performing an abortion if at the time of the abortion the person is
a physician and concludes in good faith [according to the
physician's best medical judgment] that:
(1) the pregnancy is the result of rape or incest based
on a police report or other evidence the physician reasonably
determines is reliable; or [fetus is not a viable fetus and the
pregnancy is not in the third trimester;]
(2) the abortion, according to the physician's best
medical judgment, is necessary to prevent the death or a
substantial risk of serious impairment to the physical [or mental]
health of the woman[; or
[(3) the fetus has a severe and irreversible
abnormality, identified by reliable diagnostic procedures].
(c) A physician who performs an abortion [that, according to
the physician's best medical judgment at the time of the abortion,
is to abort a viable unborn child during the third trimester of the
pregnancy] shall certify in writing to the department, on a form
prescribed by the department, the facts or medical indications
supporting the physician's judgment that the abortion was
authorized by Subsection (b) [(b)(2) or (3)]. The certification
must be made not later than the 30th day after the date the abortion
was performed.
SECTION 3. Chapter 33, Family Code, is amended by adding
Section 33.0011 to read as follows:
Sec. 33.0011. PROHIBITED ABORTION NOT AUTHORIZED. This
chapter may not be construed to authorize the performance of an
abortion prohibited under Chapter 170, Health and Safety Code.
SECTION 4. Sections 33.002(a) and (d), Family Code, are
amended to read as follows:
(a) A physician may not perform an abortion on a pregnant
unemancipated minor unless the abortion is authorized under Section
170.002(b), Health and Safety Code, and:
(1) the physician performing the abortion gives at
least 48 hours actual notice, in person or by telephone, of the
physician's intent to perform the abortion to and, in accordance
with Section 164.052, Occupations Code, obtains written consent
from:
(A) a parent of the minor, if the minor has no
managing conservator or guardian; or
(B) a court-appointed managing conservator or
guardian;
(2) for a pregnancy the physician has reasonably
determined is the result of incest, the judge of a court having
probate jurisdiction, the judge of a county court at law, the judge
of a district court, including a family district court, or a court
of appellate jurisdiction issues an order authorizing the minor to
consent to the abortion as provided by Section 33.003 or 33.004;
(3) for a pregnancy the physician has reasonably
determined is the result of incest, a probate court, county court at
law, district court, including a family district court, or court of
appeals, by its inaction, constructively authorizes the minor to
consent to the abortion as provided by Section 33.003 or 33.004; or
(4) the physician performing the abortion:
(A) concludes that on the basis of the
physician's good faith clinical judgment, a condition exists that
complicates the medical condition of the pregnant minor and
necessitates the immediate abortion of her pregnancy to avert her
death or to avoid a serious risk of substantial and irreversible
impairment of a major bodily function and that there is
insufficient time to provide the notice and obtain the consent of
the minor's parent, managing conservator, or guardian; and
(B) certifies in writing to the [Texas]
Department of State Health Services and in the patient's medical
record the medical indications supporting the physician's judgment
that the circumstances described by Paragraph (A) exist.
(d) A physician may execute for inclusion in the minor's
medical record an affidavit stating that, according to the best
information and belief of the physician, notice [or constructive
notice] has been provided as required by this section. Execution of
an affidavit under this subsection creates a presumption that the
notice requirements of this section have been satisfied.
SECTION 5. Sections 33.003(a) and (c), Family Code, are
amended to read as follows:
(a) A pregnant minor whose pregnancy is the result of incest
and who wishes to have an abortion without notification to one of
her parents, her managing conservator, or her guardian may file an
application for a court order authorizing the minor to consent to
the performance of an abortion without notification to either of
her parents or a managing conservator or guardian.
(c) The application must be made under oath and include:
(1) a statement that the minor is pregnant;
(2) a statement that the minor is unmarried, is under
18 years of age, and has not had her disabilities removed under
Chapter 31;
(3) a statement that the pregnancy is the result of
incest and the minor wishes to have an abortion without the
notification of either of her parents or a managing conservator or
guardian; and
(4) a statement as to whether the minor has retained an
attorney and, if she has retained an attorney, the name, address,
and telephone number of her attorney.
SECTION 6. Section 33.008(b), Family Code, is amended to
read as follows:
(b) The Department of Family and Protective [and
Regulatory] Services shall investigate suspected abuse reported
under this section and, if appropriate, shall assist the minor in
making an application with a court under Section 33.003.
SECTION 7. Section 419.908(c), Government Code, as added by
Chapter 994 (H.B. 3866), Acts of the 81st Legislature, Regular
Session, 2009, is amended to read as follows:
(c) This section does not apply to state agency personnel
who conduct a life safety code survey of a building or facility in
connection with determining whether to issue or renew a license
under Chapter 142, 241, 242, 243, 244, [245,] 247, 248, 251, 252,
464, 466, or 577, Health and Safety Code, or Chapter 103, Human
Resources Code.
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 Family and Protective [and
Regulatory] Services; or
(7) [(8)] a person providing medical or nursing care
or services under a license or permit issued under other state law.
SECTION 9. Section 164.052(a), Occupations Code, is amended
to read as follows:
(a) A physician or an applicant for a license to practice
medicine commits a prohibited practice if that person:
(1) submits to the board a false or misleading
statement, document, or certificate in an application for a
license;
(2) presents to the board a license, certificate, or
diploma that was illegally or fraudulently obtained;
(3) commits fraud or deception in taking or passing an
examination;
(4) uses alcohol or drugs in an intemperate manner
that, in the board's opinion, could endanger a patient's life;
(5) commits unprofessional or dishonorable conduct
that is likely to deceive or defraud the public, as provided by
Section 164.053, or injure the public;
(6) uses an advertising statement that is false,
misleading, or deceptive;
(7) advertises professional superiority or the
performance of professional service in a superior manner if that
advertising is not readily subject to verification;
(8) purchases, sells, barters, or uses, or offers to
purchase, sell, barter, or use, a medical degree, license,
certificate, or diploma, or a transcript of a license, certificate,
or diploma in or incident to an application to the board for a
license to practice medicine;
(9) alters, with fraudulent intent, a medical license,
certificate, or diploma, or a transcript of a medical license,
certificate, or diploma;
(10) uses a medical license, certificate, or diploma,
or a transcript of a medical license, certificate, or diploma that
has been:
(A) fraudulently purchased or issued;
(B) counterfeited; or
(C) materially altered;
(11) impersonates or acts as proxy for another person
in an examination required by this subtitle for a medical license;
(12) engages in conduct that subverts or attempts to
subvert an examination process required by this subtitle for a
medical license;
(13) impersonates a physician or permits another to
use the person's license or certificate to practice medicine in
this state;
(14) directly or indirectly employs a person whose
license to practice medicine has been suspended, canceled, or
revoked;
(15) associates in the practice of medicine with a
person:
(A) whose license to practice medicine has been
suspended, canceled, or revoked; or
(B) who has been convicted of the unlawful
practice of medicine in this state or elsewhere;
(16) performs or procures a criminal abortion, aids or
abets in the procuring of a criminal abortion, attempts to perform
or procure a criminal abortion, or attempts to aid or abet the
performance or procurement of a criminal abortion;
(17) directly or indirectly aids or abets the practice
of medicine by a person, partnership, association, or corporation
that is not licensed to practice medicine by the board;
(18) performs an abortion on a woman who is pregnant,
[with a viable unborn child during the third trimester of the
pregnancy] unless[:
[(A)] the abortion is authorized under Section
170.002(b), Health and Safety Code [necessary to prevent the death
of the woman;
[(B) the viable unborn child has a severe,
irreversible brain impairment; or
[(C) the woman is diagnosed with a significant
likelihood of suffering imminent severe, irreversible brain damage
or imminent severe, irreversible paralysis]; or
(19) performs an abortion on an unemancipated minor
without the written consent of the child's parent, managing
conservator, or legal guardian [or without a court order, as
provided by Section 33.003 or 33.004, Family Code, authorizing the
minor to consent to the abortion], unless the abortion is
authorized under Section 170.002(b), Health and Safety Code, and
performed in accordance with Chapter 33, Family Code [physician
concludes that on the basis of the physician's good faith clinical
judgment, a condition exists that complicates the medical condition
of the pregnant minor and necessitates 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 is
insufficient time to obtain the consent of the child's parent,
managing conservator, or legal guardian].
SECTION 10. The following provisions are repealed:
(1) Section 33.002(b), Family Code;
(2) Section 170.001(3), Health and Safety Code;
(3) Chapter 171, Health and Safety Code; and
(4) Chapter 245, Health and Safety Code.
SECTION 11. If any provision of this Act or its application
to any person or circumstance is held invalid, the entire Act is
invalid, and to this end the provisions of this Act are declared to
be nonseverable.
SECTION 12. The changes in law made by this Act apply only
to an offense committed or conduct that occurs on or after the
effective date of this Act. An offense committed or conduct that
occurs before the effective date of this Act is governed by the law
in effect when the offense was committed or the conduct occurred,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense is committed or conduct occurs
before the effective date of this Act if any element of the offense
or conduct occurs before the effective date.
SECTION 13. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2011.