Texas 2013 - 83rd 1st C.S.

Texas House Bill HB16 Compare Versions

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1	1	83S10683 JSC-F
2	2	By: Laubenberg, Flynn, Krause, Anderson, H.B. No. 16
3	3	et al.
4	4	Substitute the following for H.B. No. 16:
5	5	By: Cook C.S.H.B. No. 16
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 findings indicate 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) "Severe fetal abnormality" has the meaning
57	57	assigned by Section 285.202.
58	58	Sec. 171.042. DETERMINATION OF POST-FERTILIZATION AGE
59	59	REQUIRED. Except as otherwise provided by Section 171.045, a
60	60	physician may not perform or induce or attempt to perform or induce
61	61	an abortion without, prior to the procedure:
62	62	(1) making a determination of the probable
63	63	post-fertilization age of the unborn child; or
64	64	(2) possessing and relying on a determination of the
65	65	probable post-fertilization age of the unborn child made by another
66	66	physician.
67	67	Sec. 171.043. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
68	68	POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
69	69	Section 171.045, a person may not perform or induce or attempt to
70	70	perform or induce an abortion on a woman if it has been determined,
71	71	by the physician performing, inducing, or attempting to perform or
72	72	induce the abortion or by another physician on whose determination
73	73	that physician relies, that the probable post-fertilization age of
74	74	the unborn child is 20 or more weeks.
75	75	Sec. 171.044. METHOD OF ABORTION. (a) This section
76	76	applies only to an abortion authorized under Section 171.045(a)(1)
77	77	or (2) in which:
78	78	(1) the probable post-fertilization age of the unborn
79	79	child is 20 or more weeks; or
80	80	(2) the probable post-fertilization age of the unborn
81	81	child has not been determined but could reasonably be 20 or more
82	82	weeks.
83	83	(b) Except as otherwise provided by Section 171.045(a)(3),
84	84	a physician performing an abortion under Subsection (a) shall
85	85	terminate the pregnancy in the manner that, in the physician's
86	86	reasonable medical judgment, provides the best opportunity for the
87	87	unborn child to survive.
88	88	Sec. 171.045. EXCEPTIONS. (a) The prohibitions and
89	89	requirements under Sections 171.042, 171.043, and 171.044(b) do not
90	90	apply to an abortion performed if there exists a condition that, in
91	91	the physician's reasonable medical judgment, so complicates the
92	92	medical condition of the woman that, to avert the woman's death or a
93	93	serious risk of substantial and irreversible physical impairment of
94	94	a major bodily function, other than a psychological condition, it
95	95	necessitates, as applicable:
96	96	(1) the immediate abortion of her pregnancy without
97	97	the delay necessary to determine the probable post-fertilization
98	98	age of the unborn child;
99	99	(2) the abortion of her pregnancy even though the
100	100	post-fertilization age of the unborn child is 20 or more weeks; or
101	101	(3) the use of a method of abortion other than a method
102	102	described by Section 171.044(b).
103	103	(b) A physician may not take an action authorized under
104	104	Subsection (a) if the risk of death or a substantial and
105	105	irreversible physical impairment of a major bodily function arises
106	106	from a claim or diagnosis that the woman will engage in conduct that
107	107	may result in her death or in substantial and irreversible physical
108	108	impairment of a major bodily function.
109	109	(c) The prohibitions and requirements under Sections
110	110	171.042, 171.043, and 171.044(b) do not apply to an abortion
111	111	performed on an unborn child who has a severe fetal abnormality.
112	112	Sec. 171.046. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
113	113	(a) Except as otherwise provided by this section, in a civil or
114	114	criminal proceeding or action involving an act prohibited under
115	115	this subchapter, the identity of the woman on whom an abortion has
116	116	been performed or induced or attempted to be performed or induced is
117	117	not subject to public disclosure if the woman does not give consent
118	118	to disclosure.
119	119	(b) Unless the court makes a ruling under Subsection (c) to
120	120	allow disclosure of the woman's identity, the court shall issue
121	121	orders to the parties, witnesses, and counsel and shall direct the
122	122	sealing of the record and exclusion of individuals from courtrooms
123	123	or hearing rooms to the extent necessary to protect the woman's
124	124	identity from public disclosure.
125	125	(c) A court may order the disclosure of information that is
126	126	confidential under this section if:
127	127	(1) a motion is filed with the court requesting
128	128	release of the information and a hearing on that request;
129	129	(2) notice of the hearing is served on each interested
130	130	party; and
131	131	(3) the court determines after the hearing and an in
132	132	camera review that disclosure is essential to the administration of
133	133	justice and there is no reasonable alternative to disclosure.
134	134	Sec. 171.047. CONSTRUCTION OF SUBCHAPTER. (a) This
135	135	subchapter shall be construed, as a matter of state law, to be
136	136	enforceable up to but no further than the maximum possible extent
137	137	consistent with federal constitutional requirements, even if that
138	138	construction is not readily apparent, as such constructions are
139	139	authorized only to the extent necessary to save the subchapter from
140	140	judicial invalidation. Judicial reformation of statutory language
141	141	is explicitly authorized only to the extent necessary to save the
142	142	statutory provision from invalidity.
143	143	(b) If any court determines that a provision of this
144	144	subchapter is unconstitutionally vague, the court shall interpret
145	145	the provision, as a matter of state law, to avoid the vagueness
146	146	problem and shall enforce the provision to the maximum possible
147	147	extent. If a federal court finds any provision of this subchapter
148	148	or its application to any person, group of persons, or
149	149	circumstances to be unconstitutionally vague and declines to impose
150	150	the saving construction described by this subsection, the Supreme
151	151	Court of Texas shall provide an authoritative construction of the
152	152	objectionable statutory provisions that avoids the constitutional
153	153	problems while enforcing the statute's restrictions to the maximum
154	154	possible extent, and shall agree to answer any question certified
155	155	from a federal appellate court regarding the statute.
156	156	(c) A state executive or administrative official may not
157	157	decline to enforce this subchapter, or adopt a construction of this
158	158	subchapter in a way that narrows its applicability, based on the
159	159	official's own beliefs about what the state or federal constitution
160	160	requires, unless the official is enjoined by a state or federal
161	161	court from enforcing this subchapter.
162	162	(d) This subchapter may not be construed to authorize the
163	163	prosecution of or a cause of action to be brought against a woman on
164	164	whom an abortion is performed or induced or attempted to be
165	165	performed or induced in violation of this subchapter.
166	166	SECTION 3. Section 245.011(c), Health and Safety Code, is
167	167	amended to read as follows:
168	168	(c) The report must include:
169	169	(1) whether the abortion facility at which the
170	170	abortion is performed is licensed under this chapter;
171	171	(2) the patient's year of birth, race, marital status,
172	172	and state and county of residence;
173	173	(3) the type of abortion procedure;
174	174	(4) the date the abortion was performed;
175	175	(5) whether the patient survived the abortion, and if
176	176	the patient did not survive, the cause of death;
177	177	(6) the probable post-fertilization age of the unborn
178	178	child [period of gestation] based on the best medical judgment of
179	179	the attending physician at the time of the procedure;
180	180	(7) the date, if known, of the patient's last menstrual
181	181	cycle;
182	182	(8) the number of previous live births of the patient;
183	183	and
184	184	(9) the number of previous induced abortions of the
185	185	patient.
186	186	SECTION 4. Section 164.052(a), Occupations Code, is amended
187	187	to read as follows:
188	188	(a) A physician or an applicant for a license to practice
189	189	medicine commits a prohibited practice if that person:
190	190	(1) submits to the board a false or misleading
191	191	statement, document, or certificate in an application for a
192	192	license;
193	193	(2) presents to the board a license, certificate, or
194	194	diploma that was illegally or fraudulently obtained;
195	195	(3) commits fraud or deception in taking or passing an
196	196	examination;
197	197	(4) uses alcohol or drugs in an intemperate manner
198	198	that, in the board's opinion, could endanger a patient's life;
199	199	(5) commits unprofessional or dishonorable conduct
200	200	that is likely to deceive or defraud the public, as provided by
201	201	Section 164.053, or injure the public;
202	202	(6) uses an advertising statement that is false,
203	203	misleading, or deceptive;
204	204	(7) advertises professional superiority or the
205	205	performance of professional service in a superior manner if that
206	206	advertising is not readily subject to verification;
207	207	(8) purchases, sells, barters, or uses, or offers to
208	208	purchase, sell, barter, or use, a medical degree, license,
209	209	certificate, or diploma, or a transcript of a license, certificate,
210	210	or diploma in or incident to an application to the board for a
211	211	license to practice medicine;
212	212	(9) alters, with fraudulent intent, a medical license,
213	213	certificate, or diploma, or a transcript of a medical license,
214	214	certificate, or diploma;
215	215	(10) uses a medical license, certificate, or diploma,
216	216	or a transcript of a medical license, certificate, or diploma that
217	217	has been:
218	218	(A) fraudulently purchased or issued;
219	219	(B) counterfeited; or
220	220	(C) materially altered;
221	221	(11) impersonates or acts as proxy for another person
222	222	in an examination required by this subtitle for a medical license;
223	223	(12) engages in conduct that subverts or attempts to
224	224	subvert an examination process required by this subtitle for a
225	225	medical license;
226	226	(13) impersonates a physician or permits another to
227	227	use the person's license or certificate to practice medicine in
228	228	this state;
229	229	(14) directly or indirectly employs a person whose
230	230	license to practice medicine has been suspended, canceled, or
231	231	revoked;
232	232	(15) associates in the practice of medicine with a
233	233	person:
234	234	(A) whose license to practice medicine has been
235	235	suspended, canceled, or revoked; or
236	236	(B) who has been convicted of the unlawful
237	237	practice of medicine in this state or elsewhere;
238	238	(16) performs or procures a criminal abortion, aids or
239	239	abets in the procuring of a criminal abortion, attempts to perform
240	240	or procure a criminal abortion, or attempts to aid or abet the
241	241	performance or procurement of a criminal abortion;
242	242	(17) directly or indirectly aids or abets the practice
243	243	of medicine by a person, partnership, association, or corporation
244	244	that is not licensed to practice medicine by the board;
245	245	(18) performs an abortion on a woman who is pregnant
246	246	with a viable unborn child during the third trimester of the
247	247	pregnancy unless:
248	248	(A) the abortion is necessary to prevent the
249	249	death of the woman;
250	250	(B) the viable unborn child has a severe,
251	251	irreversible brain impairment; or
252	252	(C) the woman is diagnosed with a significant
253	253	likelihood of suffering imminent severe, irreversible brain damage
254	254	or imminent severe, irreversible paralysis; [or]
255	255	(19) performs an abortion on an unemancipated minor
256	256	without the written consent of the child's parent, managing
257	257	conservator, or legal guardian or without a court order, as
258	258	provided by Section 33.003 or 33.004, Family Code, authorizing the
259	259	minor to consent to the abortion, unless the physician concludes
260	260	that on the basis of the physician's good faith clinical judgment, a
261	261	condition exists that complicates the medical condition of the
262	262	pregnant minor and necessitates the immediate abortion of her
263	263	pregnancy to avert her death or to avoid a serious risk of
264	264	substantial impairment of a major bodily function and that there is
265	265	insufficient time to obtain the consent of the child's parent,
266	266	managing conservator, or legal guardian; or
267	267	(20) performs or induces or attempts to perform or
268	268	induce an abortion in violation of Subchapter C, Chapter 171,
269	269	Health and Safety Code.
270	270	SECTION 5. Section 164.055(b), Occupations Code, is amended
271	271	to read as follows:
272	272	(b) The sanctions provided by Subsection (a) are in addition
273	273	to any other grounds for refusal to admit persons to examination
274	274	under this subtitle or to issue a license or renew a license to
275	275	practice medicine under this subtitle. The criminal penalties
276	276	provided by Section 165.152 do not apply to a violation of Section
277	277	170.002 or Subchapter C, Chapter 171, Health and Safety Code.
278	278	SECTION 6. This Act may not be construed to repeal, by
279	279	implication or otherwise, Section 164.052(a)(18), Occupations
280	280	Code, Section 170.002, Health and Safety Code, or any other
281	281	provision of Texas law regulating or restricting abortion not
282	282	specifically addressed by this Act. An abortion that complies with
283	283	this Act but violates any other law is unlawful. An abortion that
284	284	complies with another state law but violates this Act is unlawful as
285	285	provided in this Act.
286	286	SECTION 7. (a) If some or all of the provisions of this Act
287	287	are ever temporarily or permanently restrained or enjoined by
288	288	judicial order, all other provisions of Texas law regulating or
289	289	restricting abortion shall be enforced as though the restrained or
290	290	enjoined provisions had not been adopted; provided, however, that
291	291	whenever the temporary or permanent restraining order or injunction
292	292	is stayed or dissolved, or otherwise ceases to have effect, the
293	293	provisions shall have full force and effect.
294	294	(b) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in
295	295	which in the context of determining the severability of a state
296	296	statute regulating abortion the United States Supreme Court held
297	297	that an explicit statement of legislative intent is controlling, it
298	298	is the intent of the legislature that every provision, section,
299	299	subsection, sentence, clause, phrase, or word in this Act, and
300	300	every application of the provisions in this Act, are severable from
301	301	each other. If any application of any provision in this Act to any
302	302	person, group of persons, or circumstances is found by a court to be
303	303	invalid, the remaining applications of that provision to all other
304	304	persons and circumstances shall be severed and may not be affected.
305	305	All constitutionally valid applications of this Act shall be
306	306	severed from any applications that a court finds to be invalid,
307	307	leaving the valid applications in force, because it is the
308	308	legislature's intent and priority that the valid applications be
309	309	allowed to stand alone. Even if a reviewing court finds a provision
310	310	of this Act to impose an undue burden in a large or substantial
311	311	fraction of relevant cases, the applications that do not present an
312	312	undue burden shall be severed from the remaining provisions and
313	313	shall remain in force, and shall be treated as if the legislature
314	314	had enacted a statute limited to the persons, group of persons, or
315	315	circumstances for which the statute's application does not present
316	316	an undue burden. The legislature further declares that it would
317	317	have passed this Act, and each provision, section, subsection,
318	318	sentence, clause, phrase, or word, and all constitutional
319	319	applications of this Act, irrespective of the fact that any
320	320	provision, section, subsection, sentence, clause, phrase, or word,
321	321	or applications of this Act, were to be declared unconstitutional
322	322	or to represent an undue burden.
323	323	(c) If Subchapter C, Chapter 171, Health and Safety Code, as
324	324	added by this Act, prohibiting abortions performed on an unborn
325	325	child 20 or more weeks after fertilization is found by any court to
326	326	be invalid or to impose an undue burden as applied to any person,
327	327	group of persons, or circumstances, the prohibition shall apply to
328	328	that person or group of persons or circumstances on the earliest
329	329	date on which the subchapter can be constitutionally applied.
330	330	(d) If any provision of this Act is found by any court to be
331	331	unconstitutionally vague, then the applications of that provision
332	332	that do not present constitutional vagueness problems shall be
333	333	severed and remain in force.
334	334	SECTION 8. This Act takes effect immediately if it receives
335	335	a vote of two-thirds of all the members elected to each house, as
336	336	provided by Section 39, Article III, Texas Constitution. If this
337	337	Act does not receive the vote necessary for immediate effect, this
338	338	Act takes effect on the 91st day after the last day of the
339	339	legislative session.