85R3336 SCL-F
By: Leach H.B. No. 612
A BILL TO BE ENTITLED
AN ACT
relating to voluntary and informed consent to an abortion and
prevention of coerced abortions; providing penalties; creating an
offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 6, Code of Criminal Procedure, is
amended by adding Article 6.11 to read as follows:
Art. 6.11. REPORTS OF COERCION OF ABORTION. (a) A peace
officer who receives a report of or other information alleging the
commission or attempted commission of an offense under Section
25.12, Penal Code, shall file a police report as necessary to ensure
that law enforcement may investigate the alleged offense.
(b) A peace officer receiving a report or other information
indicating that a person has coerced or forced or attempted to
coerce or force a pregnant minor to have or seek an abortion shall
notify the Department of Family and Protective Services.
SECTION 2. Section 33.002, Family Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) A physician giving notice under Subsection (a)(1)
shall inform the minor's parent, managing conservator, or guardian
that any person, including the minor's parent, conservator, or
guardian, who coerces or forces the minor to have or seek an
abortion commits an act defined as child abuse under Texas law.
SECTION 3. Section 261.001(1), Family Code, is amended to
read as follows:
(1) "Abuse" includes the following acts or omissions
by a person:
(A) mental or emotional injury to a child that
results in an observable and material impairment in the child's
growth, development, or psychological functioning;
(B) causing or permitting the child to be in a
situation in which the child sustains a mental or emotional injury
that results in an observable and material impairment in the
child's growth, development, or psychological functioning;
(C) physical injury that results in substantial
harm to the child, or the genuine threat of substantial harm from
physical injury to the child, including an injury that is at
variance with the history or explanation given and excluding an
accident or reasonable discipline by a parent, guardian, or
managing or possessory conservator that does not expose the child
to a substantial risk of harm;
(D) failure to make a reasonable effort to
prevent an action by another person that results in physical injury
that results in substantial harm to the child;
(E) sexual conduct harmful to a child's mental,
emotional, or physical welfare, including conduct that constitutes
the offense of continuous sexual abuse of young child or children
under Section 21.02, Penal Code, indecency with a child under
Section 21.11, Penal Code, sexual assault under Section 22.011,
Penal Code, or aggravated sexual assault under Section 22.021,
Penal Code;
(F) failure to make a reasonable effort to
prevent sexual conduct harmful to a child;
(G) compelling or encouraging the child to engage
in sexual conduct as defined by Section 43.01, Penal Code,
including compelling or encouraging the child in a manner that
constitutes an offense of trafficking of persons under Section
20A.02(a)(7) or (8), Penal Code, prostitution under Section
43.02(b), Penal Code, or compelling prostitution under Section
43.05(a)(2), Penal Code;
(H) causing, permitting, encouraging, engaging
in, or allowing the photographing, filming, or depicting of the
child if the person knew or should have known that the resulting
photograph, film, or depiction of the child is obscene as defined by
Section 43.21, Penal Code, or pornographic;
(I) the current use by a person of a controlled
substance as defined by Chapter 481, Health and Safety Code, in a
manner or to the extent that the use results in physical, mental, or
emotional injury to a child;
(J) causing, expressly permitting, or
encouraging a child to use a controlled substance as defined by
Chapter 481, Health and Safety Code;
(K) causing, permitting, encouraging, engaging
in, or allowing a sexual performance by a child as defined by
Section 43.25, Penal Code; [or]
(L) knowingly causing, permitting, encouraging,
engaging in, or allowing a child to be trafficked in a manner
punishable as an offense under Section 20A.02(a)(5), (6), (7), or
(8), Penal Code, or the failure to make a reasonable effort to
prevent a child from being trafficked in a manner punishable as an
offense under any of those sections; or
(M) coercing or forcing a child to have or seek an
abortion.
SECTION 4. The heading to Subchapter B, Chapter 171, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER B. VOLUNTARY AND INFORMED CONSENT
SECTION 5. Section 171.015, Health and Safety Code, is
amended to read as follows:
Sec. 171.015. INFORMATION RELATING TO PUBLIC AND PRIVATE
AGENCIES. The informational materials must include:
(1) geographically indexed materials designed to
inform the pregnant woman of public and private agencies and
services that:
(A) are available to assist a woman through
pregnancy, childbirth, and the child's dependency, including:
(i) a comprehensive list of adoption
agencies;
(ii) a description of the services the
adoption agencies offer;
(iii) a description of the manner,
including telephone numbers, in which an adoption agency may be
contacted; [and]
(iv) a comprehensive list of agencies and
organizations that offer sonogram services at no cost to the
pregnant woman;
(v) pregnancy resource centers and
maternity homes;
(vi) a comprehensive list of assistance
programs for victims of family violence and human trafficking;
(vii) the telephone number and Internet
website of the National Human Trafficking Resource Center;
(viii) a list of persons licensed to
practice in this state as social workers, licensed professional
counselors, licensed marriage and family therapists, and
psychologists who have volunteered to assist women being coerced or
forced to have or seek an abortion or volunteered to provide
services for human trafficking rescue and restoration; and
(ix) nonprofit organizations that provide
free legal aid to women being coerced or forced to have or seek an
abortion or to victims of human trafficking;
(B) do not provide abortions or abortion-related
services or make referrals to abortion providers; and
(C) are not affiliated with organizations that
provide abortions or abortion-related services or make referrals to
abortion providers; and
(2) a toll-free, 24-hour telephone number that may be
called to obtain an oral list and description of agencies described
by Subdivision (1) that are located near the caller and of the
services the agencies offer.
SECTION 6. Subchapter B, Chapter 171, Health and Safety
Code, is amended by adding Sections 171.019, 171.020, 171.021,
171.022, and 171.023 to read as follows:
Sec. 171.019. PREVENTION OF COERCED ABORTIONS. (a) Before
any anesthesia or sedative is given to a woman and before an
abortion is performed on the woman, a physician shall:
(1) verbally inform the woman that:
(A) a person cannot coerce or force her to have or
seek an abortion; and
(B) the physician cannot perform the abortion
unless the woman provides her voluntary and informed consent; and
(2) provide the woman with the coerced abortion form
described by Section 171.021:
(A) in both English and Spanish; and
(B) in a language other than English or Spanish
if required under Section 171.021(c).
(b) A physician may not perform an abortion on a woman
unless, before the abortion, the woman certifies on the coerced
abortion form described by Section 171.021 that she received from
the physician the information and materials required by Subsection
(a).
(c) If the woman indicates on the coerced abortion form or
on a form consenting to the procedure or at any time before the
abortion communicates verbally to the physician or the physician's
agent that she is being coerced or forced to have or seek an
abortion or is a victim of human trafficking or the physician is
otherwise made aware that the woman has indicated she is being
coerced or forced to have or seek an abortion or is a victim of human
trafficking, the physician:
(1) shall report an offense under Section 25.12, Penal
Code, to local law enforcement and:
(A) if the woman is a minor, make a report to the
Department of Family and Protective Services; and
(B) if the woman indicates that she is a victim of
human trafficking, report an offense under Section 20A.02, Penal
Code, to local law enforcement;
(2) shall provide the information described by Section
171.015;
(3) shall provide the woman with access to a telephone
in a private room; and
(4) may not perform the abortion until:
(A) if the woman indicated she was being coerced
or forced to have or seek an abortion, 72 hours have elapsed:
(i) since the woman last communicated to
the physician, through the form or otherwise, that the woman was
being coerced or forced to have or seek an abortion; or
(ii) to the best of the physician's
knowledge, since the woman last communicated to an agent of the
physician or law enforcement that the woman was being coerced or
forced to have or seek an abortion;
(B) the woman provides her voluntary and informed
consent that the woman states is not a result of coercion; and
(C) local law enforcement has completed the
investigation and report required under Section 171.020 and Article
6.11, Code of Criminal Procedure, and, as applicable, the
Department of Family and Protective Services has completed an
investigation under Subchapter D, Chapter 261, Family Code.
(d) A volunteer for or an employee of a physician or an
office or facility at which abortions are performed shall
immediately notify the physician who is to perform an abortion on a
woman if the woman communicates to the volunteer or employee that
the woman is being coerced or forced to have or seek an abortion or
that the woman is a victim of human trafficking.
(e) The woman on whom the abortion is to be performed may
withdraw consent to the abortion at any time before the performance
of the abortion.
Sec. 171.020. PHYSICIAN'S DUTY TO REPORT COERCION AND HUMAN
TRAFFICKING; INVESTIGATION AND ASSISTANCE. (a) If a woman claims
to have been coerced or forced to have or seek an abortion, the
physician or physician's agent shall immediately report the
suspected coercion and the name of the individual suspected of
coercing the woman to the appropriate local law enforcement agency
and, if the woman is a minor, to the Department of Family and
Protective Services.
(b) If a physician or physician's agent has reasonable
suspicion that a woman is a victim of human trafficking, the
physician or physician's agent shall report the suspected
trafficking in the manner provided by Subsection (a).
(c) The appropriate local law enforcement agency has a duty
to respond and shall write a report not later than 12 hours after
notification of the alleged coercion or trafficking under this
section. A report must be made in response to every notification by
a physician or physician's agent under this section, regardless of
whether the law enforcement agency knows that a report about the
coercion or trafficking was previously made.
(d) Notwithstanding Sections 261.301 and 261.3015, Family
Code, the Department of Family and Protective Services shall
respond not later than 12 hours after notification of the alleged
coercion or trafficking of a minor under this section.
(e) The appropriate local law enforcement agency and the
Department of Family and Protective Services shall:
(1) investigate each report of suspected coercion or
trafficking under this section; and
(2) if warranted, refer the case to the appropriate
prosecuting authority.
(f) If the investigation shows that the minor's parent,
conservator, or guardian is coercing or forcing or attempting to
coerce or force the minor to have or seek an abortion, the
Department of Family and Protective Services shall take any
appropriate action under Title 5, Family Code.
(g) The fact that a woman has signed a form under Section
171.021 does not affect:
(1) the duty of a physician or physician's agent under
this section; or
(2) the culpability of a person coercing or forcing a
woman to have or seek an abortion.
Sec. 171.021. CONTENTS OF FORM. (a) The department shall
develop a coerced abortion form to be completed by each woman on
whom an abortion is performed in this state. The form must include:
(1) the following title centered on the page in
boldfaced capital letters in 26-point font or larger: "NOTICE";
(2) the following statement printed in 16-point font
or larger: "Texas law prohibits a person, regardless of that
person's relationship to you (for example, your husband, parent,
boyfriend, or teacher), from coercing or forcing you to have or seek
an abortion. You have the right to a telephone in a private room to
contact any local law enforcement agency to receive protection from
any actual or threatened physical abuse or violence. Coercing or
forcing a woman to have or seek an abortion is child abuse if the
woman is a minor and may be punishable by up to a year in jail and up
to a $4,000 fine. Human trafficking, including sex trafficking, is
a violation of the law, and the state can help victims of
trafficking. Texas law prohibits a physician from performing an
abortion, including inducing, prescribing for, or otherwise
providing the means for an abortion, unless you give your voluntary
and informed consent without coercion or force. Texas law also
prohibits a physician from performing an abortion against your
will.";
(3) the following statements printed in 14-point font
or larger followed by spaces for the woman and, if the woman is a
minor, the woman's parent, managing conservator, or guardian, if
present, to initial:
(A) "I understand that I have the right to access
a telephone in a private room to contact a local law enforcement
agency to receive protection from any actual or threatened physical
abuse or violence.";
(B) "I understand that victims of human
trafficking may receive assistance and resources from this state
and protection by local law enforcement.";
(C) "I have been informed in person that no one
can coerce or force me to have or seek an abortion and that an
abortion cannot be provided to me unless I provide my freely given,
voluntary, and informed consent.";
(D) "I have read the above notice and understand
that I have legal protection against being coerced or forced to have
or seek an abortion.";
(E) "I freely give my voluntary consent to this
abortion without being coerced or forced."; and
(F) "I am aware that Texas law defines child
abuse to include a parent, conservator, or guardian who coerces or
forces his or her daughter or a child under his or her care to have
or seek an abortion.";
(4) spaces for the signature of the woman and, if the
woman is a minor, the woman's parent, managing conservator, or
guardian, if present, and the date the form was completed;
(5) spaces for the license number, area of specialty,
and signature of the physician who performed the abortion; and
(6) the telephone number for the National Domestic
Violence Hotline.
(b) The department shall provide the form required by
Subsection (a) in both English and Spanish.
(c) If the department determines that a substantial number
of residents in this state speak a primary language other than
English or Spanish, the department shall provide the form required
by Subsection (a) in that language. The department shall instruct a
facility that provides abortions to provide the coerced abortion
form in a language other than English or Spanish if the department
determines that a substantial number of residents in the area speak
a primary language other than English or Spanish.
Sec. 171.022. PROVISION AND RETENTION OF COERCED ABORTION
FORM. (a) The department shall provide a copy of this section and
Sections 171.019-171.021 and the coerced abortion form required by
Section 171.021 to:
(1) a physician who becomes newly licensed to practice
in this state, not later than the 30th day after the date the
physician receives the license; and
(2) all physicians licensed to practice in this state,
not later than December 1 of each year.
(b) A copy of the coerced abortion form certified by the
woman shall be placed in the woman's medical file and kept until at
least the seventh anniversary of the date on which the form was
signed or, if the woman is a minor, at least until the date the woman
reaches 20 years of age, whichever is later.
(c) The woman on whom an abortion is performed shall be
given a copy of the completed coerced abortion form in person before
the woman leaves the facility where the abortion is performed.
Sec. 171.023. SIGN POSTING. (a) An office or facility at
which abortions are performed shall post the following sign:
"NOTICE: Texas law prohibits a person, regardless of that person's
relationship to you (for example, your husband, parent, boyfriend,
or teacher), from coercing or forcing you to have or seek an
abortion. You have the right to a telephone in a private room to
contact any local law enforcement agency to receive protection from
any actual or threatened physical abuse or violence. Coercing or
forcing a woman to have or seek an abortion is child abuse if the
woman is a minor and may be punishable by up to a year in jail and up
to a $4,000 fine. Human trafficking, including sex trafficking, is
a violation of the law, and the state can help victims of
trafficking. Texas law prohibits a physician from performing an
abortion, including inducing, prescribing for, or otherwise
providing the means for an abortion, unless you give your voluntary
and informed consent without coercion or force. Texas law also
prohibits a physician from performing an abortion against your
will.".
(b) The sign described by Subsection (a) must:
(1) be printed with lettering that is legible and in at
least two-inch boldfaced type;
(2) be printed and posted in both English and Spanish,
as well as any language other than English or Spanish if it is
likely that a substantial number of the residents in the area speak
a language other than English or Spanish as their primary language;
and
(3) include the telephone number for the National
Domestic Violence Hotline.
(c) An office or facility at which abortions are performed
shall conspicuously post the sign described by Subsection (a) in
each patient waiting room, each patient consultation room regularly
used by patients seeking abortions, and the room in which abortions
are performed or induced.
(d) If requested by a patient, the office or facility shall
provide the patient:
(1) a paper copy of the sign described by Subsection
(a) in the language preferred by the patient; and
(2) access to a telephone in a private room.
SECTION 7. Chapter 25, Penal Code, is amended by adding
Section 25.12 to read as follows:
Sec. 25.12. COERCION OF ABORTION. (a) A person commits an
offense if the person uses coercion to cause a pregnant woman to
have or seek an abortion, unless:
(1) the pregnant woman is younger than 18 years of age;
and
(2) the actor is the parent, conservator, or guardian
of the pregnant woman.
(b) An offense under this section is a Class A misdemeanor.
(c) A person who in good faith reports to law enforcement
authorities a suspected offense under Subsection (a) is immune from
civil liability in an action brought against the person for
reporting the suspected offense.
SECTION 8. (a) As soon as practicable after the effective
date of this Act, the Department of State Health Services shall:
(1) develop and make available:
(A) the coerced abortion form required by
Subchapter B, Chapter 171, Health and Safety Code, as amended by
this Act, along with instructions for completing the form; and
(B) the sign required by Section 171.023, Health
and Safety Code, as added by this Act; and
(2) revise the informational materials under Section
171.015, Health and Safety Code, as amended by this Act.
(b) The executive commissioner of the Health and Human
Services Commission may identify rules required by the passage of
this Act that must be adopted on an emergency basis and may use the
procedures established under Section 2001.034, Government Code,
for adopting those rules. The executive commissioner is not
required to make the finding described by Section 2001.034(a),
Government Code, to adopt emergency rules under this subsection.
(c) A physician or other person subject to the requirements
of Sections 171.019, 171.020, 171.021, 171.022, and 171.023, Health
and Safety Code, as added by this Act, is not required to provide,
use, or retain the coerced abortion form under Section 171.019,
171.021, or 171.022, Health and Safety Code, as added by this Act,
or post the sign required under Section 171.023, Health and Safety
Code, as added by this Act, before the Department of State Health
Services develops and makes available the form and the sign.
(d) A physician is not criminally liable under Section
171.018, Health and Safety Code, for failing to provide updated
informational materials under Section 171.015, Health and Safety
Code, as amended by this Act, failing to provide, use, or retain the
coerced abortion form under Section 171.019, 171.021, or 171.022,
Health and Safety Code, as added by this Act, or failing to post the
sign required under Section 171.023, Health and Safety Code, as
added by this Act, before the Department of State Health Services
develops and makes available the revised informational materials,
the form, or the sign.
SECTION 9. The changes in law made by this Act apply only to
an offense under Section 33.002, Family Code, as amended by this
Act, or Section 25.12, Penal Code, as added by this Act, committed
on or after September 1, 2017. An offense committed before
September 1, 2017, 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. For purposes of this section, an offense was
committed before September 1, 2017, if any element of the offense
occurred before that date.
SECTION 10. 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 September 1, 2017.