83S10061 SCL/JSC-F
By: Hegar S.B. No. 13
A BILL TO BE ENTITLED
AN ACT
relating to abortion at or after 20 weeks post-fertilization.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) This Act may be cited as the Preborn Pain
Act.
(b) The legislature finds that:
(1) substantial medical evidence recognizes that an
unborn child is capable of experiencing pain by not later than 20
weeks after fertilization;
(2) the state has a compelling state interest in
protecting the lives of unborn children from the stage at which
substantial medical evidence indicates that these children are
capable of feeling pain;
(3) the compelling state interest in protecting the
lives of unborn children from the stage at which substantial
medical evidence indicates that an unborn child is capable of
feeling pain is intended to be separate from and independent of the
compelling state interest in protecting the lives of unborn
children from the stage of viability, and neither state interest is
intended to replace the other; and
(4) restricting elective abortions at or later than 20
weeks post-fertilization, as provided by this Act, does not impose
an undue burden or a substantial obstacle on a woman's ability to
have an abortion because:
(A) the woman has adequate time to decide whether
to have an abortion in the first 20 weeks after fertilization; and
(B) this Act does not apply to abortions that are
necessary to avert the death or substantial and irreversible
physical impairment of a major bodily function of the pregnant
woman.
(c) The legislature intends that every application of this
statute to every individual woman shall be severable from each
other. In the unexpected event that the application of this statute
is found to impose an impermissible undue burden on any pregnant
woman or group of pregnant women, the application of the statute to
those women shall be severed from the remaining applications of the
statute that do not impose an undue burden, and those remaining
applications shall remain in force and unaffected, consistent with
Section 7 of this Act.
SECTION 2. Chapter 171, Health and Safety Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS
POST-FERTILIZATION
Sec. 171.041. DEFINITIONS. In this subchapter:
(1) "Post-fertilization age" means the age of the
unborn child as calculated from the fusion of a human spermatozoon
with a human ovum.
(2) "Profound and irremediable congenital anomaly"
means a congenital anomaly that, in a physician's reasonable
medical judgment, will result in the death of the infant not later
than minutes to hours after birth regardless of the provision of
lifesaving medical treatment.
Sec. 171.042. DETERMINATION OF POST-FERTILIZATION AGE
REQUIRED. Except as otherwise provided by Section 171.045, a
physician may not perform or induce or attempt to perform or induce
an abortion without, prior to the procedure:
(1) making a determination of the probable
post-fertilization age of the unborn child; or
(2) possessing and relying on a determination of the
probable post-fertilization age of the unborn child made by another
physician.
Sec. 171.043. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
Section 171.045, a person may not perform or induce or attempt to
perform or induce an abortion on a woman if it has been determined,
by the physician performing, inducing, or attempting to perform or
induce the abortion or by another physician on whose determination
that physician relies, that the probable post-fertilization age of
the unborn child is 20 or more weeks.
Sec. 171.044. METHOD OF ABORTION. (a) This section applies
only to an abortion authorized under Section 171.045(a)(1) or (2)
in which:
(1) the probable post-fertilization age of the unborn
child is 20 or more weeks; or
(2) the probable post-fertilization age of the unborn
child has not been determined but could reasonably be 20 or more
weeks.
(b) Except as otherwise provided by Section 171.045(a)(3),
a physician performing an abortion under Subsection (a) shall
terminate the pregnancy in the manner that, in the physician's
reasonable medical judgment, provides the best opportunity for the
unborn child to survive.
Sec. 171.045. EXCEPTIONS. (a) The prohibitions and
requirements under Sections 171.042, 171.043, and 171.044 do not
apply to an abortion performed if there exists a condition that, in
the physician's reasonable medical judgment, so complicates the
medical condition of the woman that, to avert the woman's death or a
serious risk of substantial and irreversible physical impairment of
a major bodily function, other than a psychological condition, it
necessitates, as applicable:
(1) the immediate abortion of her pregnancy without
the delay necessary to determine the probable post-fertilization
age of the unborn child;
(2) the abortion of her pregnancy even though the
post-fertilization age of the unborn child is 20 or more weeks; or
(3) the use of a method of abortion other than a method
described by Section 171.044(b).
(b) A physician may not take an action authorized under
Subsection (a) if the risk of death or a substantial and
irreversible physical impairment of a major bodily function arises
from a claim or diagnosis that the woman will engage in conduct that
may result in her death or in substantial and irreversible physical
impairment of a major bodily function.
(c) The prohibitions and requirements under Sections
171.042, 171.043, and 171.044 do not apply to an abortion performed
on an unborn child who has a profound and irremediable congenital
anomaly.
Sec. 171.046. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
(a) Except as otherwise provided by this section, in a civil or
criminal proceeding or action involving an act prohibited under
this subchapter, the identity of the woman on whom an abortion has
been performed or induced or attempted to be performed or induced is
not subject to public disclosure if the woman does not give consent
to disclosure.
(b) Unless the court makes a ruling under Subsection (c) to
allow disclosure of the woman's identity, the court shall issue
orders to the parties, witnesses, and counsel and shall direct the
sealing of the record and exclusion of individuals from courtrooms
or hearing rooms to the extent necessary to protect the woman's
identity from public disclosure.
(c) A court may order the disclosure of information that is
confidential under this section if:
(1) a motion is filed with the court requesting
release of the information and a hearing on that request;
(2) notice of the hearing is served on each interested
party; and
(3) the court determines after the hearing and an in
camera review that disclosure is essential to the administration of
justice and there is no reasonable alternative to disclosure.
Sec. 171.047. CONSTRUCTION OF SUBCHAPTER. (a) This
subchapter shall be construed, as a matter of state law, to be
enforceable up to but no further than the maximum possible extent
consistent with federal constitutional requirements, even if that
construction is not readily apparent, as such constructions are
authorized only to the extent necessary to save the subchapter from
judicial invalidation. Judicial reformation of statutory language
is explicitly authorized only to the extent necessary to save the
statutory provision from invalidity.
(b) If any court determines that a provision of this
subchapter is unconstitutionally vague, the court shall interpret
the provision, as a matter of state law, to avoid the vagueness
problem and shall enforce the provision to the maximum possible
extent. If a federal court finds any provision of this subchapter or
its application to any person, group of persons, or circumstances
to be unconstitutionally vague and declines to impose the saving
construction described by this subsection, the Supreme Court of
Texas shall provide an authoritative construction of the
objectionable statutory provisions that avoids the constitutional
problems while enforcing the statute's restrictions to the maximum
possible extent, and shall agree to answer any question certified
from a federal appellate court regarding the statute.
(c) A state executive or administrative official may not
decline to enforce this subchapter, or adopt a construction of this
subchapter in a way that narrows its applicability, based on the
official's own beliefs about what the state or federal constitution
requires, unless the official is enjoined by a state or federal
court from enforcing this subchapter.
(d) This subchapter may not be construed to authorize the
prosecution of or a cause of action to be brought against a woman on
whom an abortion is performed or induced or attempted to be
performed or induced in violation of this subchapter.
SECTION 3. Section 245.011(c), Health and Safety Code, is
amended to read as follows:
(c) The report must include:
(1) whether the abortion facility at which the
abortion is performed is licensed under this chapter;
(2) the patient's year of birth, race, marital status,
and state and county of residence;
(3) the type of abortion procedure;
(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 probable post-fertilization age of the unborn
child [period of gestation] based on the best medical judgment of
the attending physician at the time of the procedure;
(7) the date, if known, of the patient's last menstrual
cycle;
(8) the number of previous live births of the patient;
and
(9) the number of previous induced abortions of the
patient.
SECTION 4. 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 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 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; or
(20) performs or induces or attempts to perform or
induce an abortion in violation of Subchapter C, Chapter 171,
Health and Safety Code.
SECTION 5. Section 164.055(b), Occupations Code, is amended
to read as follows:
(b) The sanctions provided by Subsection (a) are in addition
to any other grounds for refusal to admit persons to examination
under this subtitle or to issue a license or renew a license to
practice medicine under this subtitle. The criminal penalties
provided by Section 165.152 do not apply to a violation of Section
170.002 or Subchapter C, Chapter 171, Health and Safety Code.
SECTION 6. This Act may not be construed to repeal, by
implication or otherwise, Section 164.052(a)(18), Occupations
Code, Section 170.002, Health and Safety Code, or any other
provision of Texas law regulating or restricting abortion not
specifically addressed by this Act. An abortion that complies with
this Act but violates any other law is unlawful. An abortion that
complies with another state law but violates this Act is unlawful as
provided in this Act.
SECTION 7. (a) If some or all of the provisions of this Act
are ever temporarily or permanently restrained or enjoined by
judicial order, all other provisions of Texas law regulating or
restricting abortion shall be enforced as though the restrained or
enjoined provisions had not been adopted; provided, however, that
whenever the temporary or permanent restraining order or injunction
is stayed or dissolved, or otherwise ceases to have effect, the
provisions shall have full force and effect.
(b) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in
which in the context of determining the severability of a state
statute regulating abortion the United States Supreme Court held
that an explicit statement of legislative intent is controlling, it
is the intent of the legislature that every provision, section,
subsection, sentence, clause, phrase, or word in this Act, and
every application of the provisions in this Act, are severable from
each other. If any application of any provision in this Act to any
person, group of persons, or circumstances is found by a court to be
invalid, the remaining applications of that provision to all other
persons and circumstances shall be severed and may not be affected.
All constitutionally valid applications of this Act shall be
severed from any applications that a court finds to be invalid,
leaving the valid applications in force, because it is the
legislature's intent and priority that the valid applications be
allowed to stand alone. Even if a reviewing court finds a provision
of this Act to impose an undue burden in a large or substantial
fraction of relevant cases, the applications that do not present an
undue burden shall be severed from the remaining provisions and
shall remain in force, and shall be treated as if the legislature
had enacted a statute limited to the persons, group of persons, or
circumstances for which the statute's application does not present
an undue burden. The legislature further declares that it would
have passed this Act, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this Act, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this Act, were to be declared unconstitutional
or to represent an undue burden.
(c) If Subchapter C, Chapter 171, Health and Safety Code, as
added by this Act, prohibiting abortions performed on an unborn
child 20 or more weeks after fertilization is found by any court to
be invalid or to impose an undue burden as applied to any person,
group of persons, or circumstances, the prohibition shall apply to
that person or group of persons or circumstances on the earliest
date on which the subchapter can be constitutionally applied.
(d) If any provision of this Act is found by any court to be
unconstitutionally vague, then the applications of that provision
that do not present constitutional vagueness problems shall be
severed and remain in force.
SECTION 8. 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 on the 91st day after the last day of the
legislative session.