By: Hegar S.B. No. 5
(In the Senate - Filed June 11, 2013; June 11, 2013, read
first time and referred to Committee on Health and Human Services;
June 14, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 5, Nays 2; June 14, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 5 By: Taylor
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of abortion procedures, providers, and
facilities; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) The findings indicate 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.
(b) 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 10 of this Act.
SECTION 2. Subchapter A, Chapter 171, Health and Safety
Code, is amended by adding Section 171.0031 to read as follows:
Sec. 171.0031. REQUIREMENTS OF PHYSICIAN; OFFENSE. (a) A
physician performing or inducing an abortion:
(1) must, on the date the abortion is performed, have
active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the
location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health
care services; and
(2) shall provide the pregnant woman with:
(A) a telephone number by which the pregnant
woman may reach the physician, or other health care personnel
employed by the physician or by the facility at which the abortion
was performed with access to the woman's relevant medical records,
24 hours a day to request assistance for any complications that
arise from the performance of the abortion or ask health-related
questions regarding the abortion; and
(B) the name and telephone number of the nearest
hospital to the home of the pregnant woman at which an emergency
arising from the abortion would be treated.
(b) A physician who violates Subsection (a) commits an
offense. An offense under this section is a Class A misdemeanor
punishable by a fine only, not to exceed $4,000.
SECTION 3. Chapter 171, Health and Safety Code, is amended
by adding Subchapters C and D to read as follows:
SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS
POST-FERTILIZATION
Sec. 171.041. SHORT TITLE. This subchapter may be cited as
the Preborn Pain Act.
Sec. 171.042. 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) "Severe fetal abnormality" has the meaning
assigned by Section 285.202.
Sec. 171.043. DETERMINATION OF POST-FERTILIZATION AGE
REQUIRED. Except as otherwise provided by Section 171.046, 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. 171.044. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
Section 171.046, 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. 171.045. METHOD OF ABORTION. (a) This section
applies only to an abortion authorized under Section 171.046(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 171.046(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. 171.046. EXCEPTIONS. (a) The prohibitions and
requirements under Sections 171.043, 171.044, and 171.045(b) 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 171.045(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
171.043, 171.044, and 171.045(b) do not apply to an abortion
performed on an unborn child who has a severe fetal abnormality.
Sec. 171.047. 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. 171.048. 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.
SUBCHAPTER D. ABORTION-INDUCING DRUGS
Sec. 171.061. DEFINITIONS. In this subchapter:
(1) "Abortion" means the act of using, administering,
prescribing, or otherwise providing an instrument, a drug, a
medicine, or any other substance, device, or means with the intent
to terminate a clinically diagnosable pregnancy of a woman and with
knowledge that the termination by those means will, with reasonable
likelihood, cause the death of the woman's unborn child. An act is
not an abortion if the act is done with the intent to:
(A) save the life or preserve the health of an
unborn child;
(B) remove a dead, unborn child whose death was
caused by spontaneous abortion;
(C) remove an ectopic pregnancy; or
(D) treat a maternal disease or illness for which
a prescribed drug, medicine, or other substance is indicated.
(2) "Abortion-inducing drug" means a drug, a medicine,
or any other substance, including a regimen of two or more drugs,
medicines, or substances, prescribed, dispensed, or administered
with the intent of terminating a clinically diagnosable pregnancy
of a woman and with knowledge that the termination will, with
reasonable likelihood, cause the death of the woman's unborn child.
The term includes off-label use of drugs, medicines, or other
substances known to have abortion-inducing properties that are
prescribed, dispensed, or administered with the intent of causing
an abortion, including the Mifeprex regimen. The term does not
include a drug, medicine, or other substance that may be known to
cause an abortion but is prescribed, dispensed, or administered for
other medical reasons.
(3) "Final printed label" or "FPL" means the
informational document approved by the United States Food and Drug
Administration for an abortion-inducing drug that:
(A) outlines the protocol authorized by that
agency and agreed to by the drug company applying for authorization
of the drug by that agency; and
(B) delineates how a drug is to be used according
to approval by that agency.
(4) "Gestational age" means the amount of time that
has elapsed since the first day of a woman's last menstrual period.
(5) "Medical abortion" means the administration or use
of an abortion-inducing drug to induce an abortion.
(6) "Mifeprex regimen," "RU-486 regimen," or "RU-486"
means the abortion-inducing drug regimen approved by the United
States Food and Drug Administration that consists of administering
mifepristone and misoprostol.
(7) "Physician" means an individual who is licensed to
practice medicine in this state, including a medical doctor and a
doctor of osteopathic medicine.
(8) "Pregnant" means the female reproductive
condition of having an unborn child in a woman's uterus.
(9) "Unborn child" means an offspring of human beings
from conception until birth.
Sec. 171.062. ENFORCEMENT BY TEXAS MEDICAL BOARD.
Notwithstanding Section 171.005, the Texas Medical Board shall
enforce this subchapter.
Sec. 171.063. DISTRIBUTION OF ABORTION-INDUCING DRUG.
(a) A person may not knowingly give, sell, dispense, administer,
provide, or prescribe an abortion-inducing drug to a pregnant woman
for the purpose of inducing an abortion in the pregnant woman or
enabling another person to induce an abortion in the pregnant woman
unless:
(1) the person who gives, sells, dispenses,
administers, provides, or prescribes the abortion-inducing drug is
a physician; and
(2) the provision, prescription, or administration of
the abortion-inducing drug satisfies the protocol tested and
authorized by the United States Food and Drug Administration as
outlined in the final printed label of the abortion-inducing drug.
(b) Before the physician gives, sells, dispenses,
administers, provides, or prescribes an abortion-inducing drug,
the physician must examine the pregnant woman and document, in the
woman's medical record, the gestational age and intrauterine
location of the pregnancy.
(c) The physician who gives, sells, dispenses, administers,
provides, or prescribes an abortion-inducing drug shall provide the
pregnant woman with:
(1) a copy of the final printed label of that
abortion-inducing drug; and
(2) a telephone number by which the pregnant woman may
reach the physician, or other health care personnel employed by the
physician or by the facility at which the abortion was performed
with access to the woman's relevant medical records, 24 hours a day
to request assistance for any complications that arise from the
administration or use of the drug or ask health-related questions
regarding the administration or use of the drug.
(d) The physician who gives, sells, dispenses, administers,
provides, or prescribes the abortion-inducing drug, or the
physician's agent, must schedule a follow-up visit for the woman to
occur not more than 14 days after the administration or use of the
drug. At the follow-up visit, the physician must:
(1) confirm that the pregnancy is completely
terminated; and
(2) assess the degree of bleeding.
(e) The physician who gives, sells, dispenses, administers,
provides, or prescribes the abortion-inducing drug, or the
physician's agent, shall make a reasonable effort to ensure that
the woman returns for the scheduled follow-up visit under
Subsection (d). The physician or the physician's agent shall
document a brief description of any effort made to comply with this
subsection, including the date, time, and name of the person making
the effort, in the woman's medical record.
(f) If a physician gives, sells, dispenses, administers,
provides, or prescribes an abortion-inducing drug to a pregnant
woman for the purpose of inducing an abortion as authorized by this
section and the physician knows that the woman experiences a
serious adverse event, as defined by the MedWatch Reporting System,
during or after the administration or use of the drug, the physician
shall report the event to the United States Food and Drug
Administration through the MedWatch Reporting System not later than
the third day after the date the physician learns that the event
occurred.
Sec. 171.064. ADMINISTRATIVE PENALTY. (a) The Texas
Medical Board may take disciplinary action under Chapter 164,
Occupations Code, or assess an administrative penalty under
Subchapter A, Chapter 165, Occupations Code, against a person who
violates Section 171.063.
(b) A penalty may not be assessed under this section against
a pregnant woman who receives a medical abortion.
SECTION 4. Subsection (a), Section 245.010, Health and
Safety Code, is amended to read as follows:
(a) The rules must contain minimum standards to protect the
health and safety of a patient of an abortion facility and must
contain provisions requiring compliance with the requirements of
Subchapter B, Chapter 171. On and after September 1, 2014, the
minimum standards for an abortion facility must be equivalent to
the minimum standards adopted under Section 243.010 for ambulatory
surgical centers.
SECTION 5. Subsection (c), Section 245.011, 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 6. Subsection (a), Section 164.052, 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 7. Subsection (b), Section 164.055, 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 8. Effective September 1, 2014, Subsection (c),
Section 245.010, Health and Safety Code, is repealed.
SECTION 9. This Act may not be construed to repeal, by
implication or otherwise, Subdivision (18), Subsection (a),
Section 164.052, 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 10. (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 11. (a) The executive commissioner of the Health
and Human Services Commission shall adopt the standards required by
Section 245.010, Health and Safety Code, as amended by this Act, not
later than January 1, 2014.
(b) A facility licensed under Chapter 245, Health and Safety
Code, is not required to comply with the standards adopted under
Section 245.010, Health and Safety Code, as amended by this Act,
before September 1, 2014.
SECTION 12. 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.
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