Texas 2013 - 83rd 1st C.S.

Texas Senate Bill SB13 Compare Versions

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1	1	By: Hegar S.B. No. 13
2	2	(In the Senate - Filed May 29, 2013; June 11, 2013, read
3	3	first time and referred to Committee on Health and Human Services;
4	4	June 14, 2013, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 6, Nays 1; June 14, 2013,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 13 By: Taylor
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to abortion at or after 20 weeks post-fertilization.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. (a) This Act may be cited as the Preborn Pain
15	15	Act.
16	16	(b) The findings indicate that:
17	17	(1) substantial medical evidence recognizes that an
18	18	unborn child is capable of experiencing pain by not later than 20
19	19	weeks after fertilization;
20	20	(2) the state has a compelling state interest in
21	21	protecting the lives of unborn children from the stage at which
22	22	substantial medical evidence indicates that these children are
23	23	capable of feeling pain;
24	24	(3) the compelling state interest in protecting the
25	25	lives of unborn children from the stage at which substantial
26	26	medical evidence indicates that an unborn child is capable of
27	27	feeling pain is intended to be separate from and independent of the
28	28	compelling state interest in protecting the lives of unborn
29	29	children from the stage of viability, and neither state interest is
30	30	intended to replace the other; and
31	31	(4) restricting elective abortions at or later than 20
32	32	weeks post-fertilization, as provided by this Act, does not impose
33	33	an undue burden or a substantial obstacle on a woman's ability to
34	34	have an abortion because:
35	35	(A) the woman has adequate time to decide whether
36	36	to have an abortion in the first 20 weeks after fertilization; and
37	37	(B) this Act does not apply to abortions that are
38	38	necessary to avert the death or substantial and irreversible
39	39	physical impairment of a major bodily function of the pregnant
40	40	woman.
41	41	(c) The legislature intends that every application of this
42	42	statute to every individual woman shall be severable from each
43	43	other. In the unexpected event that the application of this statute
44	44	is found to impose an impermissible undue burden on any pregnant
45	45	woman or group of pregnant women, the application of the statute to
46	46	those women shall be severed from the remaining applications of the
47	47	statute that do not impose an undue burden, and those remaining
48	48	applications shall remain in force and unaffected, consistent with
49	49	Section 7 of this Act.
50	50	SECTION 2. Chapter 171, Health and Safety Code, is amended
51	51	by adding Subchapter C to read as follows:
52	52	SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS
53	53	POST-FERTILIZATION
54	54	Sec. 171.041. DEFINITIONS. In this subchapter:
55	55	(1) "Post-fertilization age" means the age of the
56	56	unborn child as calculated from the fusion of a human spermatozoon
57	57	with a human ovum.
58	58	(2) "Severe fetal abnormality" has the meaning
59	59	assigned by Section 285.202.
60	60	Sec. 171.042. DETERMINATION OF POST-FERTILIZATION AGE
61	61	REQUIRED. Except as otherwise provided by Section 171.045, a
62	62	physician may not perform or induce or attempt to perform or induce
63	63	an abortion without, prior to the procedure:
64	64	(1) making a determination of the probable
65	65	post-fertilization age of the unborn child; or
66	66	(2) possessing and relying on a determination of the
67	67	probable post-fertilization age of the unborn child made by another
68	68	physician.
69	69	Sec. 171.043. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
70	70	POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
71	71	Section 171.045, a person may not perform or induce or attempt to
72	72	perform or induce an abortion on a woman if it has been determined,
73	73	by the physician performing, inducing, or attempting to perform or
74	74	induce the abortion or by another physician on whose determination
75	75	that physician relies, that the probable post-fertilization age of
76	76	the unborn child is 20 or more weeks.
77	77	Sec. 171.044. METHOD OF ABORTION. (a) This section
78	78	applies only to an abortion authorized under Section 171.045(a)(1)
79	79	or (2) in which:
80	80	(1) the probable post-fertilization age of the unborn
81	81	child is 20 or more weeks; or
82	82	(2) the probable post-fertilization age of the unborn
83	83	child has not been determined but could reasonably be 20 or more
84	84	weeks.
85	85	(b) Except as otherwise provided by Section 171.045(a)(3),
86	86	a physician performing an abortion under Subsection (a) shall
87	87	terminate the pregnancy in the manner that, in the physician's
88	88	reasonable medical judgment, provides the best opportunity for the
89	89	unborn child to survive.
90	90	Sec. 171.045. EXCEPTIONS. (a) The prohibitions and
91	91	requirements under Sections 171.042, 171.043, and 171.044 do not
92	92	apply to an abortion performed if there exists a condition that, in
93	93	the physician's reasonable medical judgment, so complicates the
94	94	medical condition of the woman that, to avert the woman's death or a
95	95	serious risk of substantial and irreversible physical impairment of
96	96	a major bodily function, other than a psychological condition, it
97	97	necessitates, as applicable:
98	98	(1) the immediate abortion of her pregnancy without
99	99	the delay necessary to determine the probable post-fertilization
100	100	age of the unborn child;
101	101	(2) the abortion of her pregnancy even though the
102	102	post-fertilization age of the unborn child is 20 or more weeks; or
103	103	(3) the use of a method of abortion other than a method
104	104	described by Section 171.044(b).
105	105	(b) A physician may not take an action authorized under
106	106	Subsection (a) if the risk of death or a substantial and
107	107	irreversible physical impairment of a major bodily function arises
108	108	from a claim or diagnosis that the woman will engage in conduct that
109	109	may result in her death or in substantial and irreversible physical
110	110	impairment of a major bodily function.
111	111	(c) The prohibitions and requirements under Sections
112	112	171.042, 171.043, and 171.044 do not apply to an abortion performed
113	113	on an unborn child who has a severe fetal abnormality.
114	114	Sec. 171.046. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
115	115	(a) Except as otherwise provided by this section, in a civil or
116	116	criminal proceeding or action involving an act prohibited under
117	117	this subchapter, the identity of the woman on whom an abortion has
118	118	been performed or induced or attempted to be performed or induced is
119	119	not subject to public disclosure if the woman does not give consent
120	120	to disclosure.
121	121	(b) Unless the court makes a ruling under Subsection (c) to
122	122	allow disclosure of the woman's identity, the court shall issue
123	123	orders to the parties, witnesses, and counsel and shall direct the
124	124	sealing of the record and exclusion of individuals from courtrooms
125	125	or hearing rooms to the extent necessary to protect the woman's
126	126	identity from public disclosure.
127	127	(c) A court may order the disclosure of information that is
128	128	confidential under this section if:
129	129	(1) a motion is filed with the court requesting
130	130	release of the information and a hearing on that request;
131	131	(2) notice of the hearing is served on each interested
132	132	party; and
133	133	(3) the court determines after the hearing and an in
134	134	camera review that disclosure is essential to the administration of
135	135	justice and there is no reasonable alternative to disclosure.
136	136	Sec. 171.047. CONSTRUCTION OF SUBCHAPTER. (a) This
137	137	subchapter shall be construed, as a matter of state law, to be
138	138	enforceable up to but no further than the maximum possible extent
139	139	consistent with federal constitutional requirements, even if that
140	140	construction is not readily apparent, as such constructions are
141	141	authorized only to the extent necessary to save the subchapter from
142	142	judicial invalidation. Judicial reformation of statutory language
143	143	is explicitly authorized only to the extent necessary to save the
144	144	statutory provision from invalidity.
145	145	(b) If any court determines that a provision of this
146	146	subchapter is unconstitutionally vague, the court shall interpret
147	147	the provision, as a matter of state law, to avoid the vagueness
148	148	problem and shall enforce the provision to the maximum possible
149	149	extent. If a federal court finds any provision of this subchapter
150	150	or its application to any person, group of persons, or
151	151	circumstances to be unconstitutionally vague and declines to impose
152	152	the saving construction described by this subsection, the Supreme
153	153	Court of Texas shall provide an authoritative construction of the
154	154	objectionable statutory provisions that avoids the constitutional
155	155	problems while enforcing the statute's restrictions to the maximum
156	156	possible extent, and shall agree to answer any question certified
157	157	from a federal appellate court regarding the statute.
158	158	(c) A state executive or administrative official may not
159	159	decline to enforce this subchapter, or adopt a construction of this
160	160	subchapter in a way that narrows its applicability, based on the
161	161	official's own beliefs about what the state or federal constitution
162	162	requires, unless the official is enjoined by a state or federal
163	163	court from enforcing this subchapter.
164	164	(d) This subchapter may not be construed to authorize the
165	165	prosecution of or a cause of action to be brought against a woman on
166	166	whom an abortion is performed or induced or attempted to be
167	167	performed or induced in violation of this subchapter.
168	168	SECTION 3. Subsection (c), Section 245.011, Health and
169	169	Safety Code, is amended to read as follows:
170	170	(c) The report must include:
171	171	(1) whether the abortion facility at which the
172	172	abortion is performed is licensed under this chapter;
173	173	(2) the patient's year of birth, race, marital status,
174	174	and state and county of residence;
175	175	(3) the type of abortion procedure;
176	176	(4) the date the abortion was performed;
177	177	(5) whether the patient survived the abortion, and if
178	178	the patient did not survive, the cause of death;
179	179	(6) the probable post-fertilization age of the unborn
180	180	child [period of gestation] based on the best medical judgment of
181	181	the attending physician at the time of the procedure;
182	182	(7) the date, if known, of the patient's last menstrual
183	183	cycle;
184	184	(8) the number of previous live births of the patient;
185	185	and
186	186	(9) the number of previous induced abortions of the
187	187	patient.
188	188	SECTION 4. Subsection (a), Section 164.052, Occupations
189	189	Code, is amended to read as follows:
190	190	(a) A physician or an applicant for a license to practice
191	191	medicine commits a prohibited practice if that person:
192	192	(1) submits to the board a false or misleading
193	193	statement, document, or certificate in an application for a
194	194	license;
195	195	(2) presents to the board a license, certificate, or
196	196	diploma that was illegally or fraudulently obtained;
197	197	(3) commits fraud or deception in taking or passing an
198	198	examination;
199	199	(4) uses alcohol or drugs in an intemperate manner
200	200	that, in the board's opinion, could endanger a patient's life;
201	201	(5) commits unprofessional or dishonorable conduct
202	202	that is likely to deceive or defraud the public, as provided by
203	203	Section 164.053, or injure the public;
204	204	(6) uses an advertising statement that is false,
205	205	misleading, or deceptive;
206	206	(7) advertises professional superiority or the
207	207	performance of professional service in a superior manner if that
208	208	advertising is not readily subject to verification;
209	209	(8) purchases, sells, barters, or uses, or offers to
210	210	purchase, sell, barter, or use, a medical degree, license,
211	211	certificate, or diploma, or a transcript of a license, certificate,
212	212	or diploma in or incident to an application to the board for a
213	213	license to practice medicine;
214	214	(9) alters, with fraudulent intent, a medical license,
215	215	certificate, or diploma, or a transcript of a medical license,
216	216	certificate, or diploma;
217	217	(10) uses a medical license, certificate, or diploma,
218	218	or a transcript of a medical license, certificate, or diploma that
219	219	has been:
220	220	(A) fraudulently purchased or issued;
221	221	(B) counterfeited; or
222	222	(C) materially altered;
223	223	(11) impersonates or acts as proxy for another person
224	224	in an examination required by this subtitle for a medical license;
225	225	(12) engages in conduct that subverts or attempts to
226	226	subvert an examination process required by this subtitle for a
227	227	medical license;
228	228	(13) impersonates a physician or permits another to
229	229	use the person's license or certificate to practice medicine in
230	230	this state;
231	231	(14) directly or indirectly employs a person whose
232	232	license to practice medicine has been suspended, canceled, or
233	233	revoked;
234	234	(15) associates in the practice of medicine with a
235	235	person:
236	236	(A) whose license to practice medicine has been
237	237	suspended, canceled, or revoked; or
238	238	(B) who has been convicted of the unlawful
239	239	practice of medicine in this state or elsewhere;
240	240	(16) performs or procures a criminal abortion, aids or
241	241	abets in the procuring of a criminal abortion, attempts to perform
242	242	or procure a criminal abortion, or attempts to aid or abet the
243	243	performance or procurement of a criminal abortion;
244	244	(17) directly or indirectly aids or abets the practice
245	245	of medicine by a person, partnership, association, or corporation
246	246	that is not licensed to practice medicine by the board;
247	247	(18) performs an abortion on a woman who is pregnant
248	248	with a viable unborn child during the third trimester of the
249	249	pregnancy unless:
250	250	(A) the abortion is necessary to prevent the
251	251	death of the woman;
252	252	(B) the viable unborn child has a severe,
253	253	irreversible brain impairment; or
254	254	(C) the woman is diagnosed with a significant
255	255	likelihood of suffering imminent severe, irreversible brain damage
256	256	or imminent severe, irreversible paralysis; [or]
257	257	(19) performs an abortion on an unemancipated minor
258	258	without the written consent of the child's parent, managing
259	259	conservator, or legal guardian or without a court order, as
260	260	provided by Section 33.003 or 33.004, Family Code, authorizing the
261	261	minor to consent to the abortion, unless the physician concludes
262	262	that on the basis of the physician's good faith clinical judgment, a
263	263	condition exists that complicates the medical condition of the
264	264	pregnant minor and necessitates the immediate abortion of her
265	265	pregnancy to avert her death or to avoid a serious risk of
266	266	substantial impairment of a major bodily function and that there is
267	267	insufficient time to obtain the consent of the child's parent,
268	268	managing conservator, or legal guardian; or
269	269	(20) performs or induces or attempts to perform or
270	270	induce an abortion in violation of Subchapter C, Chapter 171,
271	271	Health and Safety Code.
272	272	SECTION 5. Subsection (b), Section 164.055, Occupations
273	273	Code, is amended to read as follows:
274	274	(b) The sanctions provided by Subsection (a) are in addition
275	275	to any other grounds for refusal to admit persons to examination
276	276	under this subtitle or to issue a license or renew a license to
277	277	practice medicine under this subtitle. The criminal penalties
278	278	provided by Section 165.152 do not apply to a violation of Section
279	279	170.002 or Subchapter C, Chapter 171, Health and Safety Code.
280	280	SECTION 6. This Act may not be construed to repeal, by
281	281	implication or otherwise, Subdivision (18), Subsection (a),
282	282	Section 164.052, Occupations Code, Section 170.002, Health and
283	283	Safety Code, or any other provision of Texas law regulating or
284	284	restricting abortion not specifically addressed by this Act. An
285	285	abortion that complies with this Act but violates any other law is
286	286	unlawful. An abortion that complies with another state law but
287	287	violates this Act is unlawful as provided in this Act.
288	288	SECTION 7. (a) If some or all of the provisions of this Act
289	289	are ever temporarily or permanently restrained or enjoined by
290	290	judicial order, all other provisions of Texas law regulating or
291	291	restricting abortion shall be enforced as though the restrained or
292	292	enjoined provisions had not been adopted; provided, however, that
293	293	whenever the temporary or permanent restraining order or injunction
294	294	is stayed or dissolved, or otherwise ceases to have effect, the
295	295	provisions shall have full force and effect.
296	296	(b) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in
297	297	which in the context of determining the severability of a state
298	298	statute regulating abortion the United States Supreme Court held
299	299	that an explicit statement of legislative intent is controlling, it
300	300	is the intent of the legislature that every provision, section,
301	301	subsection, sentence, clause, phrase, or word in this Act, and
302	302	every application of the provisions in this Act, are severable from
303	303	each other. If any application of any provision in this Act to any
304	304	person, group of persons, or circumstances is found by a court to be
305	305	invalid, the remaining applications of that provision to all other
306	306	persons and circumstances shall be severed and may not be affected.
307	307	All constitutionally valid applications of this Act shall be
308	308	severed from any applications that a court finds to be invalid,
309	309	leaving the valid applications in force, because it is the
310	310	legislature's intent and priority that the valid applications be
311	311	allowed to stand alone. Even if a reviewing court finds a provision
312	312	of this Act to impose an undue burden in a large or substantial
313	313	fraction of relevant cases, the applications that do not present an
314	314	undue burden shall be severed from the remaining provisions and
315	315	shall remain in force, and shall be treated as if the legislature
316	316	had enacted a statute limited to the persons, group of persons, or
317	317	circumstances for which the statute's application does not present
318	318	an undue burden. The legislature further declares that it would
319	319	have passed this Act, and each provision, section, subsection,
320	320	sentence, clause, phrase, or word, and all constitutional
321	321	applications of this Act, irrespective of the fact that any
322	322	provision, section, subsection, sentence, clause, phrase, or word,
323	323	or applications of this Act, were to be declared unconstitutional
324	324	or to represent an undue burden.
325	325	(c) If Subchapter C, Chapter 171, Health and Safety Code, as
326	326	added by this Act, prohibiting abortions performed on an unborn
327	327	child 20 or more weeks after fertilization is found by any court to
328	328	be invalid or to impose an undue burden as applied to any person,
329	329	group of persons, or circumstances, the prohibition shall apply to
330	330	that person or group of persons or circumstances on the earliest
331	331	date on which the subchapter can be constitutionally applied.
332	332	(d) If any provision of this Act is found by any court to be
333	333	unconstitutionally vague, then the applications of that provision
334	334	that do not present constitutional vagueness problems shall be
335	335	severed and remain in force.
336	336	SECTION 8. This Act takes effect immediately if it receives
337	337	a vote of two-thirds of all the members elected to each house, as
338	338	provided by Section 39, Article III, Texas Constitution. If this
339	339	Act does not receive the vote necessary for immediate effect, this
340	340	Act takes effect on the 91st day after the last day of the
341	341	legislative session.
342	342	* * * * *