85R12594 LED-F
By: Hancock, Campbell S.B. No. 1427
A BILL TO BE ENTITLED
AN ACT
relating to providing information regarding perinatal hospice care
and prohibiting discriminatory abortions; creating an
administrative penalty, a civil remedy, and criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 161, Health and Safety Code, is amended
by adding Subchapter X to read as follows:
SUBCHAPTER X. PERINATAL HOSPICE CARE
Sec. 161.701. PURPOSE OF SUBCHAPTER. The purpose of this
subchapter is to ensure that:
(1) a pregnant woman who receives a diagnosis of a
life-threatening disability of the woman's unborn child is informed
of the availability of perinatal hospice care; and
(2) a pregnant woman who chooses abortion after
receiving a diagnosis of a life-threatening disability of the
woman's unborn child makes a fully informed decision.
Sec. 161.702. DEFINITION. In this subchapter, "perinatal
hospice care" means the provision of comprehensive, supportive care
to a pregnant woman, her unborn child, and her family, from
diagnosis of the unborn child's life-threatening disability
through the delivery and death of the child as a result of the
life-threatening disability. The term includes counseling and
health care provided by maternal-fetal medical specialists,
obstetricians, neonatologists, anesthesia specialists, specialty
nurses, clergy, social workers, and other individuals focused on
alleviating fear and ensuring the pregnant woman, her unborn child,
and her family experience the life and death of the child in a
supportive environment.
Sec. 161.703. PERINATAL HOSPICE CARE INFORMATIONAL
MATERIALS. (a) The department shall develop perinatal hospice
care informational materials and post the materials on the
department's Internet website. The materials must include:
(1) a description of the health care and other
services available through perinatal hospice care; and
(2) information about medical assistance benefits
that may be available for prenatal care, childbirth, and perinatal
hospice care.
(b) The department shall develop and regularly update a
geographically indexed list of all perinatal hospice care providers
and programs in this state. The department may include perinatal
hospice care providers and programs in other states that provide
care to residents of this state. The department shall post the list
of perinatal hospice care providers and programs on the
department's Internet website.
Sec. 161.704. PERINATAL HOSPICE CARE CERTIFICATION FORM.
The department shall develop a form on which a pregnant woman
certifies she has received the perinatal hospice care informational
materials and list of the perinatal hospice care providers and
programs described by Section 161.703.
Sec. 161.705. HEALTH CARE PROVIDER DUTIES ON DIAGNOSIS OF
UNBORN CHILD'S LIFE-THREATENING DISABILITY. A health care provider
who diagnoses a pregnant woman's unborn child as having a
life-threatening disability shall, at the time of the diagnosis:
(1) provide the pregnant woman with a written copy of:
(A) the perinatal hospice care informational
materials and list of the perinatal hospice care providers and
programs described by Section 161.703; and
(B) the perinatal hospice care certification
form described by Section 161.704; and
(2) obtain from the pregnant woman the signed
perinatal hospice care certification form and place the form in the
pregnant woman's medical records.
Sec. 161.706. EXCEPTION. (a) A health care provider is not
required to provide the perinatal hospice care informational
materials or perinatal hospice care certification form under this
subchapter if the health care provider verifies the pregnant
woman's medical record contains a signed perinatal hospice care
certification form required under Section 161.705(2).
(b) This section does not affect a health care provider's
duty to provide the perinatal hospice care informational materials
or perinatal hospice care certification form described by this
subchapter as required under Subchapter B, Chapter 171.
SECTION 2. Chapter 170, Health and Safety Code, is amended
by designating Sections 170.001 and 170.002 as Subchapter A and
adding a subchapter heading to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS; POST-VIABILITY ABORTION
PROHIBITED
SECTION 3. Sections 170.002(b) and (c), Health and Safety
Code, are amended to read as follows:
(b) Subsection (a) does not prohibit a person from
performing an abortion if at the time of the abortion the person is
a physician and concludes in good faith according to the
physician's best medical judgment that[:
[(1) the fetus is not a viable fetus and the pregnancy
is not in the third trimester;
[(2)] the abortion is necessary to prevent the death
or a substantial risk of serious impairment to the physical or
mental health of the woman[; or
[(3) the fetus has a severe and irreversible
abnormality, identified by reliable diagnostic procedures].
(c) A physician who performs an abortion that, according to
the physician's best medical judgment at the time of the abortion,
is to abort a viable unborn child during the third trimester of the
pregnancy shall certify in writing to the department, on a form
prescribed by the department, the medical indications supporting
the physician's judgment that the abortion was authorized by
Subsection (b) [(b)(2) or (3)]. The certification must be made not
later than the 30th day after the date the abortion was performed.
SECTION 4. Chapter 170, Health and Safety Code, is amended
by adding Subchapter B to read as follows:
SUBCHAPTER B. DISCRIMINATORY ABORTION PROHIBITED
Sec. 170.051. DEFINITION. In this subchapter, "disability"
means:
(1) having a physical or mental impairment that would
substantially limit one or more of an individual's major life
activities; or
(2) an assessment referencing an individual's
impairment described by Subdivision (1).
Sec. 170.052. DISCRIMINATORY ABORTION. A person may not:
(1) knowingly perform or attempt to perform on a
pregnant woman an abortion based on the race, ethnicity, sex,
probability of having or diagnosis of Down syndrome, or probability
of having or diagnosis of a disability of the woman's unborn child;
or
(2) use force or the threat of force to intentionally
injure or intimidate a person in order to coerce the performance or
attempted performance of an abortion based on the race, ethnicity,
sex, probability of having or diagnosis of Down syndrome, or
probability of having or diagnosis of a disability of the woman's
unborn child.
Sec. 170.053. CRIMINAL PENALTIES. (a) A person other than
a physician who violates Section 170.052 commits an offense. An
offense under this subsection is a Class B misdemeanor.
(b) A physician who violates Section 170.052 commits an
offense. An offense under this subsection is a Class A misdemeanor.
(c) A woman on whom an abortion is performed or attempted in
violation of Section 170.052 may not be prosecuted for a violation
of that section or for conspiracy to commit a violation of that
section.
Sec. 170.054. ADMINISTRATIVE PENALTY. A physician who
violates Section 170.052 engages in unprofessional conduct for
which the physician's license may be suspended or revoked under
Chapter 164, Occupations Code.
Sec. 170.055. CIVIL REMEDIES. (a) A civil action may be
brought against a person who violates Section 170.052 by:
(1) the woman on whom an abortion was performed or
attempted in violation of Section 170.052;
(2) the father of an unborn child for an abortion
performed or attempted on a pregnant woman in violation of Section
170.052, unless the woman's pregnancy resulted from the father's
criminal conduct; or
(3) a maternal grandparent of an unborn child for an
abortion performed or attempted in violation of Section 170.052 on
a pregnant woman who was less than 18 years of age at the time of the
violation, unless the woman's pregnancy resulted from the maternal
grandparent's criminal conduct.
(b) A person who brings an action under this section may
obtain:
(1) injunctive relief;
(2) damages incurred by the person, including:
(A) actual damages for all psychological,
emotional, and physical injuries resulting from the violation of
Section 170.052;
(B) court costs; and
(C) reasonable attorney's fees; or
(3) both injunctive relief and damages.
(c) An action for damages or injunctive relief under this
section must be filed:
(1) in a district court in the county in which the
woman on whom an abortion was performed or attempted in violation of
Section 170.052 resides; and
(2) not later than the sixth anniversary of the date
the abortion was performed or attempted in violation of Section
170.052.
(d) The damages and injunctive relief authorized by this
section are in addition to any other remedy available by law.
SECTION 5. Section 171.012, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsections (f) and
(g) to read as follows:
(a) Consent to an abortion is voluntary and informed only
if:
(1) the physician who is to perform the abortion
informs the pregnant woman on whom the abortion is to be performed
of:
(A) the physician's name;
(B) the particular medical risks associated with
the particular abortion procedure to be employed, including, when
medically accurate:
(i) the risks of infection and hemorrhage;
(ii) the potential danger to a subsequent
pregnancy and of infertility; and
(iii) the possibility of increased risk of
breast cancer following an induced abortion and the natural
protective effect of a completed pregnancy in avoiding breast
cancer;
(C) the probable gestational age of the unborn
child at the time the abortion is to be performed; [and]
(D) the medical risks associated with carrying
the child to term; and
(E) the state law prohibiting abortion of an
unborn child solely on the basis of the unborn child's race,
ethnicity, sex, probability of having or diagnosis of Down
syndrome, or probability of having or diagnosis of a disability, as
defined by Section 170.051;
(2) the physician who is to perform the abortion or the
physician's agent informs the pregnant woman that:
(A) medical assistance benefits may be available
for prenatal care, childbirth, and neonatal care;
(B) the father is liable for assistance in the
support of the child without regard to whether the father has
offered to pay for the abortion; and
(C) public and private agencies provide
pregnancy prevention counseling and medical referrals for
obtaining pregnancy prevention medications or devices, including
emergency contraception for victims of rape or incest;
(3) the physician who is to perform the abortion or the
physician's agent:
(A) provides the pregnant woman with the printed
materials described by Section 171.014; and
(B) informs the pregnant woman that those
materials:
(i) have been provided by the Department of
State Health Services;
(ii) are accessible on an Internet website
sponsored by the department;
(iii) describe the unborn child and list
agencies that offer alternatives to abortion; and
(iv) include a list of agencies that offer
sonogram services at no cost to the pregnant woman;
(4) before any sedative or anesthesia is administered
to the pregnant woman and at least 24 hours before the abortion or
at least two hours before the abortion if the pregnant woman waives
this requirement by certifying that she currently lives 100 miles
or more from the nearest abortion provider that is a facility
licensed under Chapter 245 or a facility that performs more than 50
abortions in any 12-month period:
(A) the physician who is to perform the abortion
or an agent of the physician who is also a sonographer certified by
a national registry of medical sonographers performs a sonogram on
the pregnant woman on whom the abortion is to be performed;
(B) the physician who is to perform the abortion
displays the sonogram images in a quality consistent with current
medical practice in a manner that the pregnant woman may view them;
(C) the physician who is to perform the abortion
provides, in a manner understandable to a layperson, a verbal
explanation of the results of the sonogram images, including a
medical description of the dimensions of the embryo or fetus, the
presence of cardiac activity, and the presence of external members
and internal organs; and
(D) the physician who is to perform the abortion
or an agent of the physician who is also a sonographer certified by
a national registry of medical sonographers makes audible the heart
auscultation for the pregnant woman to hear, if present, in a
quality consistent with current medical practice and provides, in a
manner understandable to a layperson, a simultaneous verbal
explanation of the heart auscultation;
(5) before receiving a sonogram under Subdivision
(4)(A) and before the abortion is performed and before any sedative
or anesthesia is administered, the pregnant woman completes and
certifies with her signature an election form that states as
follows:
"ABORTION AND SONOGRAM ELECTION
(1) THE INFORMATION AND PRINTED MATERIALS
DESCRIBED BY SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH
AND SAFETY CODE, HAVE BEEN PROVIDED AND EXPLAINED TO
ME.
(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF
AN ABORTION.
(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM
PRIOR TO RECEIVING AN ABORTION.
(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW
THE SONOGRAM IMAGES.
(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR
THE HEARTBEAT.
(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO
HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I
CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
___ I AM PREGNANT AS A RESULT OF A SEXUAL
ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL
CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT
AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I
REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK
OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
___ I AM A MINOR AND OBTAINING AN ABORTION IN
ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER
CHAPTER 33, TEXAS FAMILY CODE.
[___ MY FETUS HAS AN IRREVERSIBLE MEDICAL
CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE
DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL
FILE.]
(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL
AND WITHOUT COERCION.
(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM
THE NEAREST ABORTION PROVIDER THAT IS A FACILITY
LICENSED UNDER CHAPTER 245, TEXAS HEALTH AND SAFETY
CODE, OR A FACILITY THAT PERFORMS MORE THAN 50
ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100
MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT
IS A FACILITY LICENSED UNDER CHAPTER 245, TEXAS HEALTH
AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE THAN
50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE
REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS
PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE. MY
PLACE OF RESIDENCE IS:__________.
________________________________________
SIGNATURE DATE";
(6) before the abortion is performed, the physician
who is to perform the abortion receives a copy of the signed,
written certification required by Subdivision (5); and
(7) the pregnant woman is provided the name of each
person who provides or explains the information required under this
subsection.
(f) If the pregnant woman's unborn child has been diagnosed
with a life-threatening disability, the physician who is to perform
the abortion shall, at least 24 hours before the abortion or at
least two hours before the abortion if the pregnant woman waives
this requirement by certifying that she currently lives 100 miles
or more from the nearest abortion provider that is a facility
licensed under Chapter 245 or a facility that performs more than 50
abortions in any 12-month period:
(1) orally and in person, inform the pregnant woman of
the availability of perinatal hospice care, as that term is defined
by Section 161.702; and
(2) provide the pregnant woman with a written copy of:
(A) the perinatal hospice care informational
materials and list of the perinatal hospice care providers and
programs described by Section 161.703; and
(B) the perinatal hospice care certification
form described by Section 161.704.
(g) If a pregnant woman described by Subsection (f), after
receiving from the physician who is to perform the abortion the
perinatal hospice care informational materials and certification
form described by that subsection in the manner required by that
subsection, chooses to have an abortion instead of continuing the
pregnancy in perinatal hospice care, the physician may perform the
abortion only after:
(1) the pregnant woman signs the certification form;
and
(2) the physician places the signed certification form
in the pregnant woman's medical records.
SECTION 6. Section 171.0121, Health and Safety Code, is
amended to read as follows:
Sec. 171.0121. MEDICAL RECORD. (a) Before the abortion
begins, a copy of the signed, written certification received by the
physician under Section 171.012(a)(6) and, if applicable, under
Section 161.704 must be placed in the pregnant woman's medical
records.
(b) A copy of the signed, written certification required
under Sections 171.012(a)(5) and (6) and of any signed, written
certification required under Section 161.704 shall be retained by
the facility where the abortion is performed until:
(1) the seventh anniversary of the date the
certification [it] is signed; or
(2) if the pregnant woman is a minor, the later of:
(A) the seventh anniversary of the date the
certification [it] is signed; or
(B) the woman's 21st birthday.
SECTION 7. Section 171.0122(d), Health and Safety Code, is
amended to read as follows:
(d) A pregnant woman may choose not to receive the verbal
explanation of the results of the sonogram images under Section
171.012(a)(4)(C) if:
(1) the woman's pregnancy is a result of a sexual
assault, incest, or other violation of the Penal Code that has been
reported to law enforcement authorities or that has not been
reported because she has a reason that she declines to reveal
because she reasonably believes that to do so would put her at risk
of retaliation resulting in serious bodily injury; or
(2) the woman is a minor and obtaining an abortion in
accordance with judicial bypass procedures under Chapter 33, Family
Code[; or
[(3) the fetus has an irreversible medical condition
or abnormality, as previously identified by reliable diagnostic
procedures and documented in the woman's medical file].
SECTION 8. Section 171.014(a), Health and Safety Code, is
amended to read as follows:
(a) The department shall publish informational materials
that include:
(1) the information required to be provided under
Sections 171.012(a)(1)(B), [and] (D), and (E) and (a)(2)(A), (B),
and (C); and
(2) the materials required by Sections 161.703,
171.015, and 171.016.
SECTION 9. Section 171.042, Health and Safety Code, is
amended to read as follows:
Sec. 171.042. DEFINITION [DEFINITIONS]. In this
subchapter, [:
[(1)] "post-fertilization [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.]
SECTION 10. Section 285.202(a), Health and Safety Code, is
amended to read as follows:
(a) In this section, "medical emergency" means[:
[(1)] a condition exists that, in a physician's good
faith clinical judgment, complicates the medical condition of the
pregnant woman 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[; or
[(2) the fetus has a severe fetal abnormality].
SECTION 11. Section 164.052(a), Occupations Code, is
amended to read as follows:
(a) A physician or an applicant for a license to practice
medicine commits a prohibited practice if that person:
(1) submits to the board a false or misleading
statement, document, or certificate in an application for a
license;
(2) presents to the board a license, certificate, or
diploma that was illegally or fraudulently obtained;
(3) commits fraud or deception in taking or passing an
examination;
(4) uses alcohol or drugs in an intemperate manner
that, in the board's opinion, could endanger a patient's life;
(5) commits unprofessional or dishonorable conduct
that is likely to deceive or defraud the public, as provided by
Section 164.053, or injure the public;
(6) uses an advertising statement that is false,
misleading, or deceptive;
(7) advertises professional superiority or the
performance of professional service in a superior manner if that
advertising is not readily subject to verification;
(8) purchases, sells, barters, or uses, or offers to
purchase, sell, barter, or use, a medical degree, license,
certificate, or diploma, or a transcript of a license, certificate,
or diploma in or incident to an application to the board for a
license to practice medicine;
(9) alters, with fraudulent intent, a medical license,
certificate, or diploma, or a transcript of a medical license,
certificate, or diploma;
(10) uses a medical license, certificate, or diploma,
or a transcript of a medical license, certificate, or diploma that
has been:
(A) fraudulently purchased or issued;
(B) counterfeited; or
(C) materially altered;
(11) impersonates or acts as proxy for another person
in an examination required by this subtitle for a medical license;
(12) engages in conduct that subverts or attempts to
subvert an examination process required by this subtitle for a
medical license;
(13) impersonates a physician or permits another to
use the person's license or certificate to practice medicine in
this state;
(14) directly or indirectly employs a person whose
license to practice medicine has been suspended, canceled, or
revoked;
(15) associates in the practice of medicine with a
person:
(A) whose license to practice medicine has been
suspended, canceled, or revoked; or
(B) who has been convicted of the unlawful
practice of medicine in this state or elsewhere;
(16) performs or procures a criminal abortion, aids or
abets in the procuring of a criminal abortion, attempts to perform
or procure a criminal abortion, or attempts to aid or abet the
performance or procurement of a criminal abortion;
(17) directly or indirectly aids or abets the practice
of medicine by a person, partnership, association, or corporation
that is not licensed to practice medicine by the board;
(18) performs an abortion on a woman who is pregnant
with a viable unborn child during the third trimester of the
pregnancy unless:
(A) the abortion is necessary to prevent the
death of the woman;
(B) the viable unborn child has a severe,
irreversible brain impairment; or
(C) the woman is diagnosed with a significant
likelihood of suffering imminent severe, irreversible brain damage
or imminent severe, irreversible paralysis;
(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, unless the
abortion is necessary due to a medical emergency, as defined by
Section 171.002, Health and Safety Code;
(20) otherwise performs an abortion on an
unemancipated minor in violation of Chapter 33, Family Code; [or]
(21) performs or induces or attempts to perform or
induce an abortion in violation of Subchapter C, Chapter 171,
Health and Safety Code; or
(22) performs or attempts to perform an abortion or
engages in other conduct in violation of Section 170.052, Health
and Safety Code.
SECTION 12. Section 164.055(b), Occupations Code, is
amended to read as follows:
(b) The sanctions provided by Subsection (a) are in addition
to any other grounds for refusal to admit persons to examination
under this subtitle or to issue a license or renew a license to
practice medicine under this subtitle. The criminal penalties
provided by Section 165.152 do not apply to a violation of Section
170.002 or 170.052, Health and Safety Code, or Subchapter C,
Chapter 171, Health and Safety Code.
SECTION 13. Sections 171.046(c) and 285.202(a-1) and (a-2),
Health and Safety Code, are repealed.
SECTION 14. Not later than December 1, 2017:
(1) the Department of State Health Services shall:
(A) develop the perinatal hospice care
informational materials, list of perinatal hospice care providers
and programs, and perinatal hospice care certification form
required by Subchapter X, Chapter 161, Health and Safety Code, as
added by this Act; and
(B) update any forms and informational materials
under Subchapter B, Chapter 171, Health and Safety Code, as amended
by this Act; and
(2) the executive commissioner of the Health and Human
Services Commission shall adopt any rules necessary to implement
Subchapter X, Chapter 161, Health and Safety Code, as added by this
Act and Subchapter B, Chapter 171, Health and Safety Code, as
amended by this Act.
SECTION 15. (a) Subchapter X, Chapter 161, Health and
Safety Code, as added by this Act, applies only to a diagnosis of a
life-threatening disability of a pregnant woman's unborn child made
on or after January 1, 2018.
(b) The changes in law made by this Act to Chapters 170 and
171, Health and Safety Code, and Chapter 164, Occupations Code,
apply only to an abortion performed or other conduct that occurred
on or after January 1, 2018. An abortion performed or other conduct
that occurred before that date is governed by the law in effect
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 16. This Act takes effect September 1, 2017.