By: King of Parker H.B. No. 59
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition on abortion after detection of a fetal
heartbeat; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds, according to contemporary
medical research, that:
(1) as many as 30 percent of natural pregnancies end in
spontaneous miscarriage;
(2) less than five percent of all natural pregnancies
end in spontaneous miscarriage after detection of fetal cardiac
activity;
(3) over 90 percent of in vitro pregnancies survive
the first trimester if cardiac activity is detected in the
gestational sac;
(4) nearly 90 percent of in vitro pregnancies do not
survive the first trimester if cardiac activity is not detected in
the gestational sac;
(5) fetal heartbeat, therefore, has become a key
medical predictor that an unborn child will reach live birth;
(6) cardiac activity begins at a biologically
identifiable moment in time, normally when the fetal heart is
formed in the gestational sac;
(7) the state has legitimate interests from the outset
of the pregnancy in protecting the health of the woman and the life
of an unborn child who may be born; and
(8) to make an informed choice about whether to
continue her pregnancy, the pregnant woman has a legitimate
interest in knowing the likelihood of the fetus surviving to
full-term birth based on the presence of cardiac activity.
SECTION 2. Chapter 171, Health and Safety Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. ABORTION AFTER DETECTION OF FETAL HEARTBEAT
Sec. 171.101. FINDING BY ATTORNEY GENERAL ON ENFORCEABILITY
AND APPLICABILITY OF CERTAIN LAW. (a) This subchapter is not
enforceable until the 91st day after the date of publication in the
Texas Register of a finding of fact made by the attorney general
that:
(1) the United States Supreme Court has issued a
decision overruling Roe v. Wade, 410 U.S. 113 (1973);
(2) any other state or federal court has issued an
order or judgment restoring, expanding, or clarifying the authority
of states to wholly or partly prohibit or regulate abortion under
the United States Constitution; or
(3) an amendment to the United States Constitution
that restores, expands, or clarifies the authority of states to
wholly or partly prohibit or regulate abortion has been adopted.
(b) The attorney general shall monitor federal
constitutional law and state and federal court cases related to
abortions in this state to determine whether a finding is required
under Subsection (a). The attorney general shall make the finding
required under Subsection (a) not later than the 30th day after the
date the attorney general determines the finding is required.
(c) On the 91st day after the publication date of the
finding described by Subsection (a), Subchapter C has no effect.
(d) This subchapter applies only to an offense committed on
or after the date described by Subsection (c). For purposes of this
subchapter, an offense is committed before that date if any element
of the offense occurs before that date. An offense committed before
that date is governed by the law in effect on the date the offense
was committed, and the former law is continued in effect for that
purpose.
Sec. 171.102. DEFINITIONS. In this subchapter:
(1) "Conception" means fertilization.
(2) "Contraceptive" means a drug, device, or chemical
that prevents conception.
(3) "Fetal heartbeat" means cardiac activity or the
steady and repetitive rhythmic contraction of the fetal heart
within the gestational sac.
(4) "Fetus" means the human offspring developing
during pregnancy from the moment of conception and includes the
embryonic stage of development.
(5) "Gestational age" has the meaning assigned by
Section 171.061.
(6) "Intrauterine pregnancy" means a pregnancy in
which the fetus is attached to the placenta within the uterus of the
pregnant woman.
(7) "Medical emergency" means a condition that in a
physician's good faith medical judgment, based on the facts known
to the physician at that time, so endangers the life of the pregnant
woman, or so poses a serious risk of complicating the pregnancy of
the woman by directly or indirectly causing the substantial and
irreversible impairment of a major bodily function of the pregnant
woman, as to necessitate the immediate performance or inducement of
an abortion.
(8) "Physician" means an individual licensed to
practice medicine in this state.
(9) "Pregnancy" means the human female reproductive
condition that begins with fertilization, when the woman is
carrying the developing human offspring, and that is calculated
from the first day of the last menstrual period of the woman.
(10) "Spontaneous miscarriage" means the natural or
accidental termination of a pregnancy and the expulsion of the
fetus, typically caused by genetic defects in the fetus or physical
abnormalities in the pregnant woman.
(11) "Standard medical practice" means the degree of
skill, care, and diligence that a physician of the same medical
specialty would employ in like circumstances. As applied to the
method used to determine the presence of a fetal heartbeat for
purposes of Section 171.103, "standard medical practice" includes
employing the appropriate means of detection depending on the
estimated gestational age of the fetus and the condition of the
woman and her pregnancy.
(12) "Unborn child" has the meaning assigned by
Section 171.061.
Sec. 171.103. DETERMINATION OF DETECTABLE HEARTBEAT
REQUIRED. (a) Except as otherwise provided by Section 171.105, a
physician may not perform or induce or attempt to perform or induce
an abortion unless the physician has made a determination, in
accordance with Subsection (c) and standard medical practice, of
whether the unborn child has a detectable heartbeat.
(b) The physician who makes the determination on the
presence or absence of a fetal heartbeat shall record in the
pregnant woman's medical record:
(1) the estimated gestational age of the unborn child;
(2) the method used to test for the presence or absence
of a fetal heartbeat;
(3) the date and time of the test used to determine the
presence or absence of a fetal heartbeat; and
(4) the results of the test.
(c) The method of determining the presence or absence of a
fetal heartbeat must be consistent with the physician's good faith
understanding of standard medical practice in accordance with any
rules adopted under this subsection. The executive commissioner of
the Health and Human Services Commission may adopt rules specifying
the appropriate method used to test for the presence or absence of a
fetal heartbeat of an unborn child based on standard medical
practice.
Sec. 171.104. FAILURE TO DETERMINE EXISTENCE OF DETECTABLE
HEARTBEAT; OFFENSE. (a) Except as provided by Subsection (d), a
person may not knowingly perform or induce or attempt to perform or
induce an abortion on a pregnant woman before determining, in
accordance with Section 171.103, whether the unborn child has a
detectable heartbeat.
(b) A person who violates this section commits an offense.
An offense under this section is a misdemeanor punishable by a fine
not to exceed $10,000.
(c) A pregnant woman on whom an abortion is performed or
attempted in violation of this section may not be prosecuted under
this section or for attempting to commit or conspiracy to commit a
violation of this section.
(d) It is an exception to the application of this section
that a physician performing or inducing or attempting to perform or
induce an abortion believes that a medical emergency exists that
prevents compliance with Section 171.103.
Sec. 171.105. ABORTION OF UNBORN CHILD WITH DETECTABLE
HEARTBEAT PROHIBITED; OFFENSE. (a) Except as otherwise provided by
Subsection (d), a person may not knowingly perform or induce or
attempt to perform or induce an abortion on a pregnant woman with
the specific intent of causing or abetting the termination of the
life of the unborn child if it has been determined, in accordance
with Section 171.103, that the unborn child has a detectable
heartbeat.
(b) A person who violates this section commits an offense.
An offense under this section is a misdemeanor punishable by a fine
not to exceed $10,000. In this section, "intent" has the meaning
assigned by Section 6.03(a), Penal Code.
(c) A pregnant woman on whom an abortion is performed or
attempted in violation of this section may not be prosecuted under
this section or for attempting to commit or conspiracy to commit a
violation of this section.
(d) It is an exception to the application of this section
that a physician performing or inducing or attempting to perform or
induce an abortion believes that a medical emergency exists that
prevents compliance with Section 171.103.
Sec. 171.106. INFORMATION REQUIRED BEFORE ABORTION. (a)
This section applies only to an abortion authorized under Section
171.107.
(b) A physician may not perform or induce or attempt to
perform or induce an abortion on a pregnant woman if the unborn
child has a detectable heartbeat, as determined under Section
171.103, unless:
(1) the physician intending to perform or induce the
abortion informs the pregnant woman in writing that the unborn
child the pregnant woman is carrying has a fetal heartbeat;
(2) the physician provides to the pregnant woman
information, in accordance with any rules adopted under Subsection
(d) or, if no rules are adopted, to the best of the physician's
knowledge, on the statistical probability of bringing the unborn
child possessing a detectable fetal heartbeat to term based on the
gestational age of the unborn child;
(3) the pregnant woman signs a form acknowledging that
she has received information from the physician that the unborn
child the pregnant woman is carrying has a fetal heartbeat and that
the pregnant woman is aware of the statistical probability of
bringing the unborn child to term; and
(4) at least 24 hours have elapsed since the
completion of the requirements under Subdivisions (1), (2), and
(3).
(c) This section does not apply if the physician who intends
to perform or induce the abortion believes that a medical emergency
exists that prevents compliance with this section.
(d) The executive commissioner of the Health and Human
Services Commission may adopt rules that specify the information a
physician is required to provide to a pregnant woman under
Subsection (b)(2) regarding the statistical probability of
bringing an unborn child possessing a detectable heartbeat to term
based on the gestational age of the unborn child. The rules must be
based on available medical evidence.
(e) This section does not have the effect of repealing or
limiting any other statutory provision relating to consent for an
abortion.
Sec. 171.107. EXCEPTION; WRITTEN DECLARATION OF MEDICAL
EMERGENCY. (a) The prohibitions and requirements under Sections
171.103, 171.104, 171.105, and 171.106 do not apply to an abortion
performed or induced on a pregnant woman if, in the physician's
reasonable medical judgment, the abortion is designed or intended
to prevent the woman's death or prevent a serious risk of
substantial and irreversible impairment of a major bodily function
of the woman.
(b) A physician who performs or induces or attempts to
perform or induce an abortion because the physician believes a
medical emergency exists that prevents compliance with Section
171.103 or 171.106 shall make a written certification in the
pregnant woman's medical record that:
(1) states the physician believes that a medical
emergency necessitating the abortion existed; and
(2) specifies the medical condition of the pregnant
woman that prevented compliance with Section 171.103 or 171.106 and
the medical rationale for the physician's conclusion.
(c) The physician shall maintain in the pregnant woman's
medical record the certification described by Subsection (b) until
at least the seventh anniversary of the date the certification was
made in the record.
Sec. 171.108. CONTRACEPTIVES. Nothing in this subchapter
prohibits the use, dispensing, prescribing, or administration of a
contraceptive.
Sec. 171.109. CIVIL CAUSE OF ACTION. A person is liable to
a woman in a civil action for the wrongful death of her unborn child
if the person performed or induced an abortion on the woman and:
(1) the abortion was performed or induced in violation
of Section 171.004 or 171.005;
(2) the woman was not provided the information
described in Section 171.106(b)(2); or
(3) the woman did not sign a form described in Section
171.106(b)(3).
Sec. 171.110. 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 164.052(a), Occupations Code, as amended
by H.B. No. 2, Acts of the 83rd Legislature, 2nd Called Session,
2013, 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;
(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; or
(21) performs or induces or attempts to perform or
induce an abortion in violation of Subchapter E, Chapter 171,
Health and Safety Code.
SECTION 4. Section 164.055(b), Occupations Code, as amended
by H.B. No. 2, Acts of the 83rd Legislature, 2nd Called Session,
2013, 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 or E, Chapter 171, Health and Safety Code.
SECTION 5. 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, except as
provided by Section 171.101, Health and Safety Code, as added by
this Act, 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 6. (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, including Subchapter C, Chapter 171, Health
and Safety Code, 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 E, Chapter 171, Health and Safety Code, as
added by this Act, prohibiting abortions performed on an unborn
child after detection of a fetal heartbeat, 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 applied constitutionally and in
accordance with this Act.
SECTION 7. 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.