By: Huffines, Bettencourt S.B. No. 258
(In the Senate - Filed November 29, 2016; January 30, 2017,
read first time and referred to Committee on Health & Human
Services; March 7, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 6, Nays 2;
March 7, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 258 By: Buckingham
A BILL TO BE ENTITLED
AN ACT
relating to the disposition of embryonic and fetal tissue remains;
imposing a civil penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 171.012(a), Health and Safety Code, is
amended 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;
(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) the physician who is to perform the abortion or the
physician's agent:
(A) provides the pregnant woman with a
disposition of remains form described by Section 171.0161; and
(B) informs the pregnant woman that the form:
(i) is provided by the Department of State
Health Services;
(ii) is accessible on the department's
Internet website;
(iii) describes the options for the
disposition of the embryonic and fetal tissue remains; and
(iv) must be completed by the pregnant
woman and received by the physician before the abortion is
performed;
(5) 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;
(6) [(5)] before receiving a sonogram under
Subdivision (5)(A) [(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)-(4)
[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";
(7) [(6)] before the abortion is performed, the
physician who is to perform the abortion receives:
(A) a copy of the completed disposition of
remains form required by Subdivision (4); and
(B) a copy of the signed, written certification
required by Subdivision (6) [(5)]; and
(8) [(7)] the pregnant woman is provided the name of
each person who provides or explains the information required under
this subsection.
SECTION 2. 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 both the completed disposition of remains form
required under Section 171.012(a)(4) and the signed, written
certification received by the physician under Section
171.012(a)(7) [171.012(a)(6)] must be placed in the pregnant
woman's medical records.
(b) A copy of the signed, written certification required
under Sections 171.012(a)(6) [171.012(a)(5)] and (7) [(6)] shall be
retained by the facility where the abortion is performed until:
(1) the seventh anniversary of the date it is signed;
or
(2) if the pregnant woman is a minor, the later of:
(A) the seventh anniversary of the date it is
signed; or
(B) the woman's 21st birthday.
SECTION 3. Sections 171.0122(b), (c), and (d), Health and
Safety Code, are amended to read as follows:
(b) A pregnant woman may choose not to view the sonogram
images required to be provided to and reviewed with the pregnant
woman under Section 171.012(a)(5) [171.012(a)(4)].
(c) A pregnant woman may choose not to hear the heart
auscultation required to be provided to and reviewed with the
pregnant woman under Section 171.012(a)(5) [171.012(a)(4)].
(d) A pregnant woman may choose not to receive the verbal
explanation of the results of the sonogram images under Section
171.012(a)(5)(C) [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;
(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 4. The heading to Section 171.013, Health and
Safety Code, is amended to read as follows:
Sec. 171.013. DISTRIBUTION OF STATE MATERIALS AND FORM.
SECTION 5. Section 171.013(a), Health and Safety Code, is
amended to read as follows:
(a) The physician or the physician's agent shall furnish
copies of the materials described by Section 171.014 and the form
described by Section 171.0161 to the pregnant woman at least 24
hours before the abortion is to be performed and shall direct the
pregnant woman to the Internet website required to be published
under Section 171.014(e). The physician or the physician's agent
may furnish the materials and form to the pregnant woman by mail if
the materials and form are mailed, restricted delivery to
addressee, at least 72 hours before the abortion is to be performed.
SECTION 6. Subchapter B, Chapter 171, Health and Safety
Code, is amended by adding Section 171.0161 to read as follows:
Sec. 171.0161. DISPOSITION OF EMBRYONIC AND FETAL TISSUE
REMAINS: FORM; NONPROFIT ORGANIZATION ASSISTANCE REGISTRY; RULES.
(a) A pregnant woman may decide to inter or cremate the embryonic
and fetal tissue remains of an unborn child who is aborted.
(b) The department shall develop and maintain a form for a
pregnant woman to select the method of disposition of the embryonic
and fetal tissue remains.
(c) The form must include:
(1) burial and cremation as methods of disposition of
the embryonic and fetal tissue remains of an unborn child;
(2) a statement that the pregnant woman may elect to
have the abortion provider dispose of the embryonic and fetal
tissue remains in accordance with Section 697.005; and
(3) a statement that the pregnant woman may privately
dispose of the embryonic and fetal tissue remains of an unborn child
in a manner that complies with Section 697.005 but may be held
financially responsible for the abortion provider's reasonable
costs of preparing the remains for transport.
(d) The form must be:
(1) in English and Spanish;
(2) easily comprehensible; and
(3) in a large, clearly legible typeface.
(e) The department shall post the form on the department's
Internet website.
(f) The department shall:
(1) establish and maintain a registry of:
(A) participating funeral homes and cemeteries
willing to provide free common burial or low-cost private burial;
and
(B) private nonprofit organizations that
register with the department to provide financial assistance for
the costs associated with burial or cremation of the embryonic and
fetal tissue remains of an unborn child; and
(2) make the registry information available on request
to a physician, physician's agent, or pregnant woman electing to
privately dispose of the embryonic and fetal tissue remains.
(g) The executive commissioner shall adopt rules to
implement this section.
SECTION 7. Subtitle B, Title 8, Health and Safety Code, is
amended by adding Chapter 697 to read as follows:
CHAPTER 697. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS
Sec. 697.001. PURPOSE. The purpose of this chapter is to
express the state's profound respect for the life of the unborn by
providing for a dignified final disposition of embryonic and fetal
tissue remains.
Sec. 697.002. DEFINITIONS. In this chapter:
(1) "Cremation" means the irreversible process of
reducing remains to ashes or bone fragments through extreme heat
and evaporation.
(2) "Department" means the Department of State Health
Services.
(3) "Embryonic and fetal tissue remains" means an
embryo, a fetus, body parts, or organs from a pregnancy for which
the issuance of a fetal death certificate is not required by law.
The term does not include the umbilical cord, placenta, gestational
sac, blood, or body fluids.
(4) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(5) "Incineration" means the process of burning
remains in an incinerator.
(6) "Interment" means the disposition of remains by
entombment, burial, or placement in a niche.
(7) "Steam disinfection" means the act of subjecting
remains to steam under pressure to disinfect the remains.
Sec. 697.003. APPLICABILITY OF CHAPTER. This chapter does
not apply to embryonic and fetal tissue remains:
(1) expelled or removed from a pregnant woman who is
not at the time of expulsion or removal in the care of a health care
facility;
(2) sent to a clinical, diagnostic, pathological, or
biomedical research laboratory for medical testing;
(3) sent to a forensic laboratory for testing related
to a criminal investigation; or
(4) donated for research, provided the donation
complies with the laws of this state.
Sec. 697.004. APPLICABILITY OF OTHER LAW. Embryonic and
fetal tissue remains are not pathological waste. Except as
otherwise provided by this chapter, Chapters 711 and 716 of this
code and Chapter 651, Occupations Code, do not apply to the
disposition of embryonic and fetal tissue remains.
Sec. 697.005. DISPOSITION OF EMBRYONIC AND FETAL TISSUE
REMAINS. (a) A health care facility in this state that provides
health or medical care to a pregnant woman shall dispose of
embryonic and fetal tissue remains related to that care by:
(1) interment;
(2) cremation or incineration; or
(3) steam disinfection followed by interment.
(b) The ashes resulting from the cremation or incineration
of embryonic and fetal tissue remains:
(1) may be interred or scattered in any manner as
authorized by law for human remains; and
(2) may not be placed in a landfill.
(c) A health care facility responsible for disposing of
embryonic and fetal tissue remains may coordinate with an entity in
the registry established under Section 171.0161 in an effort to
offset the cost associated with burial or cremation of the
embryonic and fetal tissue remains of an unborn child.
(d) The executive commissioner shall adopt rules to
implement this section, including rules for the collection,
storage, handling, and transportation of embryonic and fetal tissue
remains.
Sec. 697.006. SUSPENSION OR REVOCATION OF LICENSE. The
department may suspend or revoke the license of a health care
facility that violates Section 697.005 or a rule adopted under this
chapter.
Sec. 697.007. SUIT BY ATTORNEY GENERAL. (a) The attorney
general, at the request of the department, may file suit against a
health care facility that violates Section 697.005 or a rule
adopted under this chapter for:
(1) injunctive relief, including a temporary
restraining order, under Section 697.008;
(2) recovery of a civil penalty under Section 697.009;
or
(3) both injunctive relief and a civil penalty.
(b) A suit filed under this section must be filed in a
district court in Travis County or the county in which the health
care facility described by Subsection (a) is located.
Sec. 697.008. INJUNCTIVE RELIEF. The attorney general may
obtain injunctive relief in a suit filed under Section 697.007.
Injunctive relief provided by this section is in addition to any
other action, proceeding, or remedy authorized by law. It is not
necessary to allege or prove in a suit filed under Section 697.007
seeking injunctive relief that an adequate remedy at law does not
exist or that substantial or irreparable harm would result from the
continued violation.
Sec. 697.009. CIVIL PENALTY. (a) A health care facility
that violates Section 697.005 or a rule adopted under this chapter
is liable for a civil penalty in an amount of $1,000 for each
violation. Each day of a continuing violation constitutes a
separate violation.
(b) The attorney general may file suit under Section 697.007
to collect the civil penalty. The attorney general may recover
reasonable expenses incurred in collecting the civil penalty,
including court costs, reasonable attorney's fees, investigation
costs, witness fees, and disposition expenses.
SECTION 8. Not later than December 1, 2017:
(1) the executive commissioner of the Health and Human
Services Commission shall adopt the rules required to implement
this Act; and
(2) the Department of State Health Services shall
adopt the forms and procedures necessary to implement this Act.
SECTION 9. (a) Chapter 171, Health and Safety Code, as
amended by this Act, applies only to an abortion performed on or
after February 1, 2018. An abortion performed 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.
(b) Chapter 697, Health and Safety Code, as added by this
Act, applies only to the disposition of embryonic and fetal tissue
remains that occurs on or after February 1, 2018. The disposition
of embryonic and fetal tissue remains that occurs before February
1, 2018, is governed by the law in effect immediately before the
effective date of this Act, and the former law is continued in
effect for that purpose.
SECTION 10. This Act takes effect September 1, 2017.
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