Texas 2013 - 83rd Regular

Texas House Bill HB2364 Compare Versions

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1	1	83R24861 SCL-D
2	2	By: Laubenberg, Leach, Burkett, H.B. No. 2364
3	3	Bonnen of Galveston, Turner of Collin,
4	4	et al.
5	5	Substitute the following for H.B.
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to abortion at or after 20 weeks post-fertilization.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. (a) This Act may be cited as the Preborn Pain
13	13	Act.
14	14	(b) The legislature finds that:
15	15	(1) substantial medical evidence recognizes that an
16	16	unborn child is capable of experiencing pain by not later than 20
17	17	weeks after fertilization;
18	18	(2) the state has a compelling state interest in
19	19	protecting the lives of unborn children from the stage at which
20	20	substantial medical evidence indicates that these children are
21	21	capable of feeling pain;
22	22	(3) the compelling state interest in protecting the
23	23	lives of unborn children from the stage at which substantial
24	24	medical evidence indicates that an unborn child is capable of
25	25	feeling pain is intended to be separate from and independent of the
26	26	compelling state interest in protecting the lives of unborn
27	27	children from the stage of viability, and neither state interest is
28	28	intended to replace the other; and
29	29	(4) restricting elective abortions at or later than 20
30	30	weeks post-fertilization, as provided by this Act, does not impose
31	31	an undue burden or a substantial obstacle on a woman's ability to
32	32	have an abortion because:
33	33	(A) the woman has adequate time to decide whether
34	34	to have an abortion in the first 20 weeks after fertilization; and
35	35	(B) this Act does not apply to abortions that are
36	36	necessary to avert the death or substantial and irreversible
37	37	physical impairment of a major bodily function of the pregnant
38	38	woman.
39	39	(c) The legislature intends that every application of this
40	40	statute to every individual woman shall be severable from each
41	41	other. In the unexpected event that the application of this statute
42	42	is found to impose an impermissible undue burden on any pregnant
43	43	woman or group of pregnant women, the application of the statute to
44	44	those women shall be severed from the remaining applications of the
45	45	statute that do not impose an undue burden, and those remaining
46	46	applications shall remain in force and unaffected, consistent with
47	47	Section 7 of this Act.
48	48	SECTION 2. Chapter 171, Health and Safety Code, is amended
49	49	by adding Subchapter C to read as follows:
50	50	SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS
51	51	POST-FERTILIZATION
52	52	Sec. 171.041. DEFINITIONS. In this subchapter:
53	53	(1) "Post-fertilization age" means the age of the
54	54	unborn child as calculated from the fusion of a human spermatozoon
55	55	with a human ovum.
56	56	(2) "Profound and irremediable congenital anomaly"
57	57	means a congenital anomaly that, in a physician's reasonable
58	58	medical judgment, will result in the death of the infant not later
59	59	than minutes to hours after birth regardless of the provision of
60	60	lifesaving medical treatment.
61	61	Sec. 171.042. DETERMINATION OF POST-FERTILIZATION AGE
62	62	REQUIRED. Except as otherwise provided by Section 171.045, a
63	63	physician may not perform or induce or attempt to perform or induce
64	64	an abortion without, prior to the procedure:
65	65	(1) making a determination of the probable
66	66	post-fertilization age of the unborn child; or
67	67	(2) possessing and relying on a determination of the
68	68	probable post-fertilization age of the unborn child made by another
69	69	physician.
70	70	Sec. 171.043. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
71	71	POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
72	72	Section 171.045, a person may not perform or induce or attempt to
73	73	perform or induce an abortion on a woman if it has been determined,
74	74	by the physician performing, inducing, or attempting to perform or
75	75	induce the abortion or by another physician on whose determination
76	76	that physician relies, that the probable post-fertilization age of
77	77	the unborn child is 20 or more weeks.
78	78	Sec. 171.044. METHOD OF ABORTION. (a) This section applies
79	79	only to an abortion authorized under Section 171.045(a)(1) or (2)
80	80	in which:
81	81	(1) the probable post-fertilization age of the unborn
82	82	child is 20 or more weeks; or
83	83	(2) the probable post-fertilization age of the unborn
84	84	child has not been determined but could reasonably be 20 or more
85	85	weeks.
86	86	(b) Except as otherwise provided by Section 171.045(a)(3),
87	87	a physician performing an abortion under Subsection (a) shall
88	88	terminate the pregnancy in the manner that, in the physician's
89	89	reasonable medical judgment, provides the best opportunity for the
90	90	unborn child to survive.
91	91	Sec. 171.045. EXCEPTIONS. (a) The prohibitions and
92	92	requirements under Sections 171.042, 171.043, and 171.044 do not
93	93	apply to an abortion performed if there exists a condition that, in
94	94	the physician's reasonable medical judgment, so complicates the
95	95	medical condition of the woman that, to avert the woman's death or a
96	96	serious risk of substantial and irreversible physical impairment of
97	97	a major bodily function, other than a psychological condition, it
98	98	necessitates, as applicable:
99	99	(1) the immediate abortion of her pregnancy without
100	100	the delay necessary to determine the probable post-fertilization
101	101	age of the unborn child;
102	102	(2) the abortion of her pregnancy even though the
103	103	post-fertilization age of the unborn child is 20 or more weeks; or
104	104	(3) the use of a method of abortion other than a method
105	105	described by Section 171.044(b).
106	106	(b) A physician may not take an action authorized under
107	107	Subsection (a) if the risk of death or a substantial and
108	108	irreversible physical impairment of a major bodily function arises
109	109	from a claim or diagnosis that the woman will engage in conduct that
110	110	may result in her death or in substantial and irreversible physical
111	111	impairment of a major bodily function.
112	112	(c) The prohibitions and requirements under Sections
113	113	171.042, 171.043, and 171.044 do not apply to an abortion performed
114	114	on an unborn child who has a profound and irremediable congenital
115	115	anomaly.
116	116	Sec. 171.046. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
117	117	(a) Except as otherwise provided by this section, in a civil or
118	118	criminal proceeding or action involving an act prohibited under
119	119	this subchapter, the identity of the woman on whom an abortion has
120	120	been performed or induced or attempted to be performed or induced is
121	121	not subject to public disclosure if the woman does not give consent
122	122	to disclosure.
123	123	(b) Unless the court makes a ruling under Subsection (c) to
124	124	allow disclosure of the woman's identity, the court shall issue
125	125	orders to the parties, witnesses, and counsel and shall direct the
126	126	sealing of the record and exclusion of individuals from courtrooms
127	127	or hearing rooms to the extent necessary to protect the woman's
128	128	identity from public disclosure.
129	129	(c) A court may order the disclosure of information that is
130	130	confidential under this section if:
131	131	(1) a motion is filed with the court requesting
132	132	release of the information and a hearing on that request;
133	133	(2) notice of the hearing is served on each interested
134	134	party; and
135	135	(3) the court determines after the hearing and an in
136	136	camera review that disclosure is essential to the administration of
137	137	justice and there is no reasonable alternative to disclosure.
138	138	Sec. 171.047. CONSTRUCTION OF SUBCHAPTER. (a) This
139	139	subchapter shall be construed, as a matter of state law, to be
140	140	enforceable up to but no further than the maximum possible extent
141	141	consistent with federal constitutional requirements, even if that
142	142	construction is not readily apparent, as such constructions are
143	143	authorized only to the extent necessary to save the subchapter from
144	144	judicial invalidation. Judicial reformation of statutory language
145	145	is explicitly authorized only to the extent necessary to save the
146	146	statutory provision from invalidity.
147	147	(b) If any court determines that a provision of this
148	148	subchapter is unconstitutionally vague, the court shall interpret
149	149	the provision, as a matter of state law, to avoid the vagueness
150	150	problem and shall enforce the provision to the maximum possible
151	151	extent. If a federal court finds any provision of this subchapter or
152	152	its application to any person, group of persons, or circumstances
153	153	to be unconstitutionally vague and declines to impose the saving
154	154	construction described by this subsection, the Supreme Court of
155	155	Texas shall provide an authoritative construction of the
156	156	objectionable statutory provisions that avoids the constitutional
157	157	problems while enforcing the statute's restrictions to the maximum
158	158	possible extent, and shall agree to answer any question certified
159	159	from a federal appellate court regarding the statute.
160	160	(c) A state executive or administrative official may not
161	161	decline to enforce this subchapter, or adopt a construction of this
162	162	subchapter in a way that narrows its applicability, based on the
163	163	official's own beliefs about what the state or federal constitution
164	164	requires, unless the official is enjoined by a state or federal
165	165	court from enforcing this subchapter.
166	166	(d) This subchapter may not be construed to authorize the
167	167	prosecution of or a cause of action to be brought against a woman on
168	168	whom an abortion is performed or induced or attempted to be
169	169	performed or induced in violation of this subchapter.
170	170	SECTION 3. Section 245.011(c), Health and Safety Code, is
171	171	amended to read as follows:
172	172	(c) The report must include:
173	173	(1) whether the abortion facility at which the
174	174	abortion is performed is licensed under this chapter;
175	175	(2) the patient's year of birth, race, marital status,
176	176	and state and county of residence;
177	177	(3) the type of abortion procedure;
178	178	(4) the date the abortion was performed;
179	179	(5) whether the patient survived the abortion, and if
180	180	the patient did not survive, the cause of death;
181	181	(6) the probable post-fertilization age of the unborn
182	182	child [period of gestation] based on the best medical judgment of
183	183	the attending physician at the time of the procedure;
184	184	(7) the date, if known, of the patient's last menstrual
185	185	cycle;
186	186	(8) the number of previous live births of the patient;
187	187	and
188	188	(9) the number of previous induced abortions of the
189	189	patient.
190	190	SECTION 4. Section 164.052(a), Occupations Code, is amended
191	191	to read as follows:
192	192	(a) A physician or an applicant for a license to practice
193	193	medicine commits a prohibited practice if that person:
194	194	(1) submits to the board a false or misleading
195	195	statement, document, or certificate in an application for a
196	196	license;
197	197	(2) presents to the board a license, certificate, or
198	198	diploma that was illegally or fraudulently obtained;
199	199	(3) commits fraud or deception in taking or passing an
200	200	examination;
201	201	(4) uses alcohol or drugs in an intemperate manner
202	202	that, in the board's opinion, could endanger a patient's life;
203	203	(5) commits unprofessional or dishonorable conduct
204	204	that is likely to deceive or defraud the public, as provided by
205	205	Section 164.053, or injure the public;
206	206	(6) uses an advertising statement that is false,
207	207	misleading, or deceptive;
208	208	(7) advertises professional superiority or the
209	209	performance of professional service in a superior manner if that
210	210	advertising is not readily subject to verification;
211	211	(8) purchases, sells, barters, or uses, or offers to
212	212	purchase, sell, barter, or use, a medical degree, license,
213	213	certificate, or diploma, or a transcript of a license, certificate,
214	214	or diploma in or incident to an application to the board for a
215	215	license to practice medicine;
216	216	(9) alters, with fraudulent intent, a medical license,
217	217	certificate, or diploma, or a transcript of a medical license,
218	218	certificate, or diploma;
219	219	(10) uses a medical license, certificate, or diploma,
220	220	or a transcript of a medical license, certificate, or diploma that
221	221	has been:
222	222	(A) fraudulently purchased or issued;
223	223	(B) counterfeited; or
224	224	(C) materially altered;
225	225	(11) impersonates or acts as proxy for another person
226	226	in an examination required by this subtitle for a medical license;
227	227	(12) engages in conduct that subverts or attempts to
228	228	subvert an examination process required by this subtitle for a
229	229	medical license;
230	230	(13) impersonates a physician or permits another to
231	231	use the person's license or certificate to practice medicine in
232	232	this state;
233	233	(14) directly or indirectly employs a person whose
234	234	license to practice medicine has been suspended, canceled, or
235	235	revoked;
236	236	(15) associates in the practice of medicine with a
237	237	person:
238	238	(A) whose license to practice medicine has been
239	239	suspended, canceled, or revoked; or
240	240	(B) who has been convicted of the unlawful
241	241	practice of medicine in this state or elsewhere;
242	242	(16) performs or procures a criminal abortion, aids or
243	243	abets in the procuring of a criminal abortion, attempts to perform
244	244	or procure a criminal abortion, or attempts to aid or abet the
245	245	performance or procurement of a criminal abortion;
246	246	(17) directly or indirectly aids or abets the practice
247	247	of medicine by a person, partnership, association, or corporation
248	248	that is not licensed to practice medicine by the board;
249	249	(18) performs an abortion on a woman who is pregnant
250	250	with a viable unborn child during the third trimester of the
251	251	pregnancy unless:
252	252	(A) the abortion is necessary to prevent the
253	253	death of the woman;
254	254	(B) the viable unborn child has a severe,
255	255	irreversible brain impairment; or
256	256	(C) the woman is diagnosed with a significant
257	257	likelihood of suffering imminent severe, irreversible brain damage
258	258	or imminent severe, irreversible paralysis; [or]
259	259	(19) performs an abortion on an unemancipated minor
260	260	without the written consent of the child's parent, managing
261	261	conservator, or legal guardian or without a court order, as
262	262	provided by Section 33.003 or 33.004, Family Code, authorizing the
263	263	minor to consent to the abortion, unless the physician concludes
264	264	that on the basis of the physician's good faith clinical judgment, a
265	265	condition exists that complicates the medical condition of the
266	266	pregnant minor and necessitates the immediate abortion of her
267	267	pregnancy to avert her death or to avoid a serious risk of
268	268	substantial impairment of a major bodily function and that there is
269	269	insufficient time to obtain the consent of the child's parent,
270	270	managing conservator, or legal guardian; or
271	271	(20) performs or induces or attempts to perform or
272	272	induce an abortion in violation of Subchapter C, Chapter 171,
273	273	Health and Safety Code.
274	274	SECTION 5. Section 164.055(b), Occupations Code, is amended
275	275	to read as follows:
276	276	(b) The sanctions provided by Subsection (a) are in addition
277	277	to any other grounds for refusal to admit persons to examination
278	278	under this subtitle or to issue a license or renew a license to
279	279	practice medicine under this subtitle. The criminal penalties
280	280	provided by Section 165.152 do not apply to a violation of Section
281	281	170.002 or Subchapter C, Chapter 171, Health and Safety Code.
282	282	SECTION 6. This Act may not be construed to repeal, by
283	283	implication or otherwise, Section 164.052(a)(18), Occupations
284	284	Code, Section 170.002, Health and Safety Code, or any other
285	285	provision of Texas law regulating or restricting abortion not
286	286	specifically addressed by this Act. An abortion that complies with
287	287	this Act but violates any other law is unlawful. An abortion that
288	288	complies with another state law but violates this Act is unlawful as
289	289	provided in this Act.
290	290	SECTION 7. (a) If some or all of the provisions of this Act
291	291	are ever temporarily or permanently restrained or enjoined by
292	292	judicial order, all other provisions of Texas law regulating or
293	293	restricting abortion shall be enforced as though the restrained or
294	294	enjoined provisions had not been adopted; provided, however, that
295	295	whenever the temporary or permanent restraining order or injunction
296	296	is stayed or dissolved, or otherwise ceases to have effect, the
297	297	provisions shall have full force and effect.
298	298	(b) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in
299	299	which in the context of determining the severability of a state
300	300	statute regulating abortion the United States Supreme Court held
301	301	that an explicit statement of legislative intent is controlling, it
302	302	is the intent of the legislature that every provision, section,
303	303	subsection, sentence, clause, phrase, or word in this Act, and
304	304	every application of the provisions in this Act, are severable from
305	305	each other. If any application of any provision in this Act to any
306	306	person, group of persons, or circumstances is found by a court to be
307	307	invalid, the remaining applications of that provision to all other
308	308	persons and circumstances shall be severed and may not be affected.
309	309	All constitutionally valid applications of this Act shall be
310	310	severed from any applications that a court finds to be invalid,
311	311	leaving the valid applications in force, because it is the
312	312	legislature's intent and priority that the valid applications be
313	313	allowed to stand alone. Even if a reviewing court finds a provision
314	314	of this Act to impose an undue burden in a large or substantial
315	315	fraction of relevant cases, the applications that do not present an
316	316	undue burden shall be severed from the remaining provisions and
317	317	shall remain in force, and shall be treated as if the legislature
318	318	had enacted a statute limited to the persons, group of persons, or
319	319	circumstances for which the statute's application does not present
320	320	an undue burden. The legislature further declares that it would
321	321	have passed this Act, and each provision, section, subsection,
322	322	sentence, clause, phrase, or word, and all constitutional
323	323	applications of this Act, irrespective of the fact that any
324	324	provision, section, subsection, sentence, clause, phrase, or word,
325	325	or applications of this Act, were to be declared unconstitutional
326	326	or to represent an undue burden.
327	327	(c) If Subchapter C, Chapter 171, Health and Safety Code, as
328	328	added by this Act, prohibiting abortions performed on an unborn
329	329	child 20 or more weeks after fertilization is found by any court to
330	330	be invalid or to impose an undue burden as applied to any person,
331	331	group of persons, or circumstances, the prohibition shall apply to
332	332	that person or group of persons or circumstances on the earliest
333	333	date on which the subchapter can be constitutionally applied.
334	334	(d) If any provision of this Act is found by any court to be
335	335	unconstitutionally vague, then the applications of that provision
336	336	that do not present constitutional vagueness problems shall be
337	337	severed and remain in force.
338	338	SECTION 8. This Act takes effect immediately if it receives
339	339	a vote of two-thirds of all the members elected to each house, as
340	340	provided by Section 39, Article III, Texas Constitution. If this
341	341	Act does not receive the vote necessary for immediate effect, this
342	342	Act takes effect September 1, 2013.