Texas 2017 - 85th Regular

Texas Senate Bill SB258 Compare Versions

Version 1 (Old)

Version 2 (New)

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1		-	By: Huffines, Bettencourt S.B. No. 258
2		-	(In the Senate - Filed November 29, 2016; January 30, 2017,
3		-	read first time and referred to Committee on Health & Human
4		-	Services; March 7, 2017, reported adversely, with favorable
5		-	Committee Substitute by the following vote: Yeas 6, Nays 2;
6		-	March 7, 2017, sent to printer.)
7		-	Click here to see the committee vote
8		-	COMMITTEE SUBSTITUTE FOR S.B. No. 258 By: Buckingham
	1	+	By: Huffines, et al. S.B. No. 258
9	2
10	3
11	4		A BILL TO BE ENTITLED
12	5		AN ACT
13	6		relating to the disposition of embryonic and fetal tissue remains;
14	7		imposing a civil penalty.
15	8		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
16		-	SECTION 1. Section 171.012(a), Health and Safety Code, is
	9	+	SECTION 1. Section 171.002, Health and Safety Code, is
	10	+	amended by adding Subdivision (2-a) to read as follows:
	11	+	(2-a) "Embryonic and fetal tissue remains" has the
	12	+	meaning assigned by Section 697.002.
	13	+	SECTION 2. Section 171.012(a), Health and Safety Code, is
17	14		amended to read as follows:
18	15		(a) Consent to an abortion is voluntary and informed only
19	16		if:
20	17		(1) the physician who is to perform the abortion
21	18		informs the pregnant woman on whom the abortion is to be performed
22	19		of:
23	20		(A) the physician's name;
24	21		(B) the particular medical risks associated with
25	22		the particular abortion procedure to be employed, including, when
26	23		medically accurate:
27	24		(i) the risks of infection and hemorrhage;
28	25		(ii) the potential danger to a subsequent
29	26		pregnancy and of infertility; and
30	27		(iii) the possibility of increased risk of
31	28		breast cancer following an induced abortion and the natural
32	29		protective effect of a completed pregnancy in avoiding breast
33	30		cancer;
34	31		(C) the probable gestational age of the unborn
35	32		child at the time the abortion is to be performed; and
36	33		(D) the medical risks associated with carrying
37	34		the child to term;
38	35		(2) the physician who is to perform the abortion or the
39	36		physician's agent informs the pregnant woman that:
40	37		(A) medical assistance benefits may be available
41	38		for prenatal care, childbirth, and neonatal care;
42	39		(B) the father is liable for assistance in the
43	40		support of the child without regard to whether the father has
44	41		offered to pay for the abortion; and
45	42		(C) public and private agencies provide
46	43		pregnancy prevention counseling and medical referrals for
47	44		obtaining pregnancy prevention medications or devices, including
48	45		emergency contraception for victims of rape or incest;
49	46		(3) the physician who is to perform the abortion or the
50	47		physician's agent:
51	48		(A) provides the pregnant woman with the printed
52	49		materials described by Section 171.014; and
53	50		(B) informs the pregnant woman that those
54	51		materials:
55	52		(i) have been provided by the Department of
56	53		State Health Services;
57	54		(ii) are accessible on an Internet website
58	55		sponsored by the department;
59	56		(iii) describe the unborn child and list
60	57		agencies that offer alternatives to abortion; and
61	58		(iv) include a list of agencies that offer
62	59		sonogram services at no cost to the pregnant woman;
63	60		(4) the physician who is to perform the abortion or the
64	61		physician's agent:
65	62		(A) provides the pregnant woman with a
66	63		disposition of remains form described by Section 171.0161; and
67	64		(B) informs the pregnant woman that the form:
68	65		(i) is provided by the Department of State
69	66		Health Services;
70	67		(ii) is accessible on the department's
71	68		Internet website;
72	69		(iii) describes the options for the
73	70		disposition of the embryonic and fetal tissue remains; and
74		-	(iv) must be completed by the pregnant
75		-	woman and received by the physician before the abortion is
76		-	performed;
	71	+	(iv) must be signed by the pregnant woman
	72	+	and received by the physician before the abortion is performed;
77	73		(5) before any sedative or anesthesia is administered
78	74		to the pregnant woman and at least 24 hours before the abortion or
79	75		at least two hours before the abortion if the pregnant woman waives
80	76		this requirement by certifying that she currently lives 100 miles
81	77		or more from the nearest abortion provider that is a facility
82	78		licensed under Chapter 245 or a facility that performs more than 50
83	79		abortions in any 12-month period:
84	80		(A) the physician who is to perform the abortion
85	81		or an agent of the physician who is also a sonographer certified by
86	82		a national registry of medical sonographers performs a sonogram on
87	83		the pregnant woman on whom the abortion is to be performed;
88	84		(B) the physician who is to perform the abortion
89	85		displays the sonogram images in a quality consistent with current
90	86		medical practice in a manner that the pregnant woman may view them;
91	87		(C) the physician who is to perform the abortion
92	88		provides, in a manner understandable to a layperson, a verbal
93	89		explanation of the results of the sonogram images, including a
94	90		medical description of the dimensions of the embryo or fetus, the
95	91		presence of cardiac activity, and the presence of external members
96	92		and internal organs; and
97	93		(D) the physician who is to perform the abortion
98	94		or an agent of the physician who is also a sonographer certified by
99	95		a national registry of medical sonographers makes audible the heart
100	96		auscultation for the pregnant woman to hear, if present, in a
101	97		quality consistent with current medical practice and provides, in a
102	98		manner understandable to a layperson, a simultaneous verbal
103	99		explanation of the heart auscultation;
104	100		(6) [(5)] before receiving a sonogram under
105	101		Subdivision (5)(A) [(4)(A)] and before the abortion is performed
106	102		and before any sedative or anesthesia is administered, the pregnant
107	103		woman completes and certifies with her signature an election form
108	104		that states as follows:
109	105		"ABORTION AND SONOGRAM ELECTION
110	106		(1) THE INFORMATION AND PRINTED MATERIALS
111	107		DESCRIBED BY SECTIONS 171.012(a)(1)-(4)
112	108		[171.012(a)(1)-(3)], TEXAS HEALTH AND SAFETY CODE,
113	109		HAVE BEEN PROVIDED AND EXPLAINED TO ME.
114	110		(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF
115	111		AN ABORTION.
116	112		(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM
117	113		PRIOR TO RECEIVING AN ABORTION.
118	114		(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW
119	115		THE SONOGRAM IMAGES.
120	116		(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR
121	117		THE HEARTBEAT.
122	118		(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO
123	119		HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I
124	120		CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
125	121		___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,
126	122		INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT
127	123		HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR
128	124		THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY
129	125		BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF
130	126		RETALIATION RESULTING IN SERIOUS BODILY INJURY.
131	127		___ I AM A MINOR AND OBTAINING AN ABORTION IN
132	128		ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER
133	129		CHAPTER 33, TEXAS FAMILY CODE.
134	130		___ MY FETUS HAS AN IRREVERSIBLE MEDICAL
135	131		CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE
136	132		DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL
137	133		FILE.
138	134		(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL
139	135		AND WITHOUT COERCION.
140	136		(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM
141	137		THE NEAREST ABORTION PROVIDER THAT IS A FACILITY
142	138		LICENSED UNDER CHAPTER 245, TEXAS HEALTH AND SAFETY
143	139		CODE, OR A FACILITY THAT PERFORMS MORE THAN 50
144	140		ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
145	141		I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100
146	142		MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT
147	143		IS A FACILITY LICENSED UNDER CHAPTER 245, TEXAS HEALTH
148	144		AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE THAN
149	145		50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE
150	146		REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS
151	147		PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE. MY
152	148		PLACE OF RESIDENCE IS:__________.
153	149		________________________________________
154	150		SIGNATURE DATE";
155	151		(7) [(6)] before the abortion is performed, the
156	152		physician who is to perform the abortion receives:
157		-	(A) a copy of the ~~completed~~ disposition of
158		-	~~remains~~ form required by Subdivision (4); and
	153	+	(A) a copy of the signed disposition of remains
	154	+	form required by Subdivision (4); and
159	155		(B) a copy of the signed, written certification
160	156		required by Subdivision (6) [(5)]; and
161	157		(8) [(7)] the pregnant woman is provided the name of
162	158		each person who provides or explains the information required under
163	159		this subsection.
164		-	SECTION 2. Section 171.0121, Health and Safety Code, is
	160	+	SECTION 3. Section 171.0121, Health and Safety Code, is
165	161		amended to read as follows:
166	162		Sec. 171.0121. MEDICAL RECORD. (a) Before the abortion
167		-	begins, a copy of both the ~~completed~~ disposition of remains form
	163	+	begins, a copy of both the signed disposition of remains form
168	164		required under Section 171.012(a)(4) and the signed, written
169	165		certification received by the physician under Section
170	166		171.012(a)(7) [171.012(a)(6)] must be placed in the pregnant
171	167		woman's medical records.
172	168		(b) A copy of the signed, written certification required
173	169		under Sections 171.012(a)(6) [171.012(a)(5)] and (7) [(6)] shall be
174	170		retained by the facility where the abortion is performed until:
175	171		(1) the seventh anniversary of the date it is signed;
176	172		or
177	173		(2) if the pregnant woman is a minor, the later of:
178	174		(A) the seventh anniversary of the date it is
179	175		signed; or
180	176		(B) the woman's 21st birthday.
181		-	SECTION 3. Sections 171.0122(b), (c), and (d), Health and
	177	+	SECTION 4. Sections 171.0122(b), (c), and (d), Health and
182	178		Safety Code, are amended to read as follows:
183	179		(b) A pregnant woman may choose not to view the sonogram
184	180		images required to be provided to and reviewed with the pregnant
185	181		woman under Section 171.012(a)(5) [171.012(a)(4)].
186	182		(c) A pregnant woman may choose not to hear the heart
187	183		auscultation required to be provided to and reviewed with the
188	184		pregnant woman under Section 171.012(a)(5) [171.012(a)(4)].
189	185		(d) A pregnant woman may choose not to receive the verbal
190	186		explanation of the results of the sonogram images under Section
191	187		171.012(a)(5)(C) [171.012(a)(4)(C)] if:
192	188		(1) the woman's pregnancy is a result of a sexual
193	189		assault, incest, or other violation of the Penal Code that has been
194	190		reported to law enforcement authorities or that has not been
195	191		reported because she has a reason that she declines to reveal
196	192		because she reasonably believes that to do so would put her at risk
197	193		of retaliation resulting in serious bodily injury;
198	194		(2) the woman is a minor and obtaining an abortion in
199	195		accordance with judicial bypass procedures under Chapter 33, Family
200	196		Code; or
201	197		(3) the fetus has an irreversible medical condition or
202	198		abnormality, as previously identified by reliable diagnostic
203	199		procedures and documented in the woman's medical file.
204		-	SECTION 4. The heading to Section 171.013, Health and
	200	+	SECTION 5. The heading to Section 171.013, Health and
205	201		Safety Code, is amended to read as follows:
206	202		Sec. 171.013. DISTRIBUTION OF STATE MATERIALS AND FORM.
207		-	SECTION 5. Section 171.013(a), Health and Safety Code, is
	203	+	SECTION 6. Section 171.013(a), Health and Safety Code, is
208	204		amended to read as follows:
209	205		(a) The physician or the physician's agent shall furnish
210	206		copies of the materials described by Section 171.014 and the form
211	207		described by Section 171.0161 to the pregnant woman at least 24
212	208		hours before the abortion is to be performed and shall direct the
213	209		pregnant woman to the Internet website required to be published
214	210		under Section 171.014(e). The physician or the physician's agent
215	211		may furnish the materials and form to the pregnant woman by mail if
216	212		the materials and form are mailed, restricted delivery to
217	213		addressee, at least 72 hours before the abortion is to be performed.
218		-	SECTION 6. Subchapter B, Chapter 171, Health and Safety
	214	+	SECTION 7. Subchapter B, Chapter 171, Health and Safety
219	215		Code, is amended by adding Section 171.0161 to read as follows:
220	216		Sec. 171.0161. DISPOSITION OF EMBRYONIC AND FETAL TISSUE
221	217		REMAINS: FORM; NONPROFIT ORGANIZATION ASSISTANCE REGISTRY; RULES.
222		-	(a) A pregnant woman may decide to inter or cremate the embryonic
223		-	and fetal tissue remains of an unborn child who is aborted.
224		-	(b) The department shall develop and maintain a form for a
225		-	pregnant woman to select the method of disposition of the embryonic
226		-	and fetal tissue remains.
227		-	(c) The form must include:
228		-	(1) burial and cremation as methods of disposition of
229		-	the embryonic and fetal tissue remains of an unborn child;
230		-	(2) a statement that the pregnant woman may elect to
231		-	have the abortion provider dispose of the embryonic and fetal
232		-	tissue remains in accordance with Section 697.005; and
233		-	(3) a statement that the pregnant woman may privately
	218	+	(a) The department shall develop and maintain a form that notifies
	219	+	a pregnant woman of the disposition methods for embryonic and fetal
	220	+	tissue remains.
	221	+	(b) The form must include:
	222	+	(1) a statement describing the disposition methods for
	223	+	embryonic and fetal tissue remains authorized by Chapter 697; and
	224	+	(2) a statement that the pregnant woman may privately
234	225		dispose of the embryonic and fetal tissue remains of an unborn child
235		-	in a manner that complies with ~~Section~~ 697~~.005~~ but may be held
236		-	financially responsible for the ~~abortion provider~~'s reasonable
237		-	costs of preparing the remains ~~for transport~~.
238		-	(d) The form must be:
	226	+	in a manner that complies with Chapter 697 but may be held
	227	+	financially responsible for the health care facility's reasonable
	228	+	costs of preparing the remains.
	229	+	(c) The form must be:
239	230		(1) in English and Spanish;
240	231		(2) easily comprehensible; and
241	232		(3) in a large, clearly legible typeface.
242		-	(e) The department shall post the form on the department's
	233	+	(d) The department shall post the form on the department's
243	234		Internet website.
244		-	(f) The department shall:
	235	+	(e) The department shall:
245	236		(1) establish and maintain a registry of:
246	237		(A) participating funeral homes and cemeteries
247		-	willing to provide free ~~common burial~~ or low-cost ~~private burial;~~
248		-	and
	238	+	willing to provide free or low-cost disposition of embryonic and
	239	+	fetal tissue remains that complies with Chapter 697; and
249	240		(B) private nonprofit organizations that
250	241		register with the department to provide financial assistance for
251		-	the costs associated with ~~burial or cremation~~ of the embryonic and
	242	+	the costs associated with the disposition of the embryonic and
252	243		fetal tissue remains of an unborn child; and
253	244		(2) make the registry information available on request
254	245		to a physician, physician's agent, or pregnant woman electing to
255	246		privately dispose of the embryonic and fetal tissue remains.
256		-	(g) The executive commissioner shall adopt rules to
257		-	implement this section.
258		-	SECTION 7. Subtitle B, Title 8, Health and Safety Code, is
	247	+	(f) The executive commissioner shall adopt rules to
	248	+	implement this section, including rules for the collection,
	249	+	storage, handling, and movement of embryonic and fetal tissue
	250	+	remains.
	251	+	SECTION 8. Subtitle B, Title 8, Health and Safety Code, is
259	252		amended by adding Chapter 697 to read as follows:
260	253		CHAPTER 697. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS
261	254		Sec. 697.001. PURPOSE. The purpose of this chapter is to
262	255		express the state's profound respect for the life of the unborn by
263	256		providing for a dignified final disposition of embryonic and fetal
264	257		tissue remains.
265	258		Sec. 697.002. DEFINITIONS. In this chapter:
266	259		(1) "Cremation" means the irreversible process of
267	260		reducing remains to ashes or bone fragments through extreme heat
268	261		and evaporation.
269	262		(2) "Department" means the Department of State Health
270	263		Services.
271	264		(3) "Embryonic and fetal tissue remains" means an
272	265		embryo, a fetus, body parts, or organs from a pregnancy for which
273	266		the issuance of a fetal death certificate is not required by law.
274	267		The term does not include the umbilical cord, placenta, gestational
275	268		sac, blood, or body fluids.
276	269		(4) "Executive commissioner" means the executive
277	270		commissioner of the Health and Human Services Commission.
278	271		(5) "Incineration" means the process of burning
279	272		remains in an incinerator.
280	273		(6) "Interment" means the disposition of remains by
281	274		entombment, burial, or placement in a niche.
282	275		(7) "Steam disinfection" means the act of subjecting
283	276		remains to steam under pressure to disinfect the remains.
284	277		Sec. 697.003. APPLICABILITY OF CHAPTER. This chapter does
285	278		not apply to embryonic and fetal tissue remains:
286	279		(1) expelled or removed from a pregnant woman who is
287		-	not at the time of expulsion or removal in the care of a health care
288		-	facility;
	280	+	not at the time of expulsion or removal in a health care facility;
289	281		(2) sent to a clinical, diagnostic, pathological, or
290	282		biomedical research laboratory for medical testing;
291	283		(3) sent to a forensic laboratory for testing related
292	284		to a criminal investigation; or
293	285		(4) donated for research, provided the donation
294	286		complies with the laws of this state.
295	287		Sec. 697.004. APPLICABILITY OF OTHER LAW. Embryonic and
296	288		fetal tissue remains are not pathological waste. Except as
297	289		otherwise provided by this chapter, Chapters 711 and 716 of this
298	290		code and Chapter 651, Occupations Code, do not apply to the
299	291		disposition of embryonic and fetal tissue remains.
300	292		Sec. 697.005. DISPOSITION OF EMBRYONIC AND FETAL TISSUE
301	293		REMAINS. (a) A health care facility in this state that provides
302	294		health or medical care to a pregnant woman shall dispose of
303	295		embryonic and fetal tissue remains related to that care by:
304	296		(1) interment;
305	297		(2) cremation or incineration; or
306	298		(3) steam disinfection followed by interment.
307	299		(b) The ashes resulting from the cremation or incineration
308	300		of embryonic and fetal tissue remains:
309	301		(1) may be interred or scattered in any manner as
310	302		authorized by law for human remains; and
311	303		(2) may not be placed in a landfill.
312	304		(c) A health care facility responsible for disposing of
313	305		embryonic and fetal tissue remains may coordinate with an entity in
314	306		the registry established under Section 171.0161 in an effort to
315		-	offset the cost associated with ~~burial or cremation~~ of the
316		-	~~embryonic~~ and fetal tissue remains of an unborn child.
	307	+	offset the cost associated with the disposition of the embryonic
	308	+	and fetal tissue remains of an unborn child.
317	309		(d) The executive commissioner shall adopt rules to
318	310		implement this section, including rules for the collection,
319		-	storage, handling, and ~~transportation~~ of embryonic and fetal tissue
	311	+	storage, handling, and movement of embryonic and fetal tissue
320	312		remains.
321	313		Sec. 697.006. SUSPENSION OR REVOCATION OF LICENSE. The
322	314		department may suspend or revoke the license of a health care
323	315		facility that violates Section 697.005 or a rule adopted under this
324	316		chapter.
325	317		Sec. 697.007. SUIT BY ATTORNEY GENERAL. (a) The attorney
326	318		general, at the request of the department, may file suit against a
327	319		health care facility that violates Section 697.005 or a rule
328	320		adopted under this chapter for:
329	321		(1) injunctive relief, including a temporary
330	322		restraining order, under Section 697.008;
331	323		(2) recovery of a civil penalty under Section 697.009;
332	324		or
333	325		(3) both injunctive relief and a civil penalty.
334	326		(b) A suit filed under this section must be filed in a
335	327		district court in Travis County or the county in which the health
336	328		care facility described by Subsection (a) is located.
337	329		Sec. 697.008. INJUNCTIVE RELIEF. The attorney general may
338	330		obtain injunctive relief in a suit filed under Section 697.007.
339	331		Injunctive relief provided by this section is in addition to any
340	332		other action, proceeding, or remedy authorized by law. It is not
341	333		necessary to allege or prove in a suit filed under Section 697.007
342	334		seeking injunctive relief that an adequate remedy at law does not
343	335		exist or that substantial or irreparable harm would result from the
344	336		continued violation.
345	337		Sec. 697.009. CIVIL PENALTY. (a) A health care facility
346	338		that violates Section 697.005 or a rule adopted under this chapter
347	339		is liable for a civil penalty in an amount of $1,000 for each
348	340		violation. Each day of a continuing violation constitutes a
349	341		separate violation.
350	342		(b) The attorney general may file suit under Section 697.007
351	343		to collect the civil penalty. The attorney general may recover
352	344		reasonable expenses incurred in collecting the civil penalty,
353	345		including court costs, reasonable attorney's fees, investigation
354	346		costs, witness fees, and disposition expenses.
355		-	SECTION 8. Not later than December 1, 2017:
	347	+	SECTION 9. Not later than December 1, 2017:
356	348		(1) the executive commissioner of the Health and Human
357	349		Services Commission shall adopt the rules required to implement
358		-	this Act; and
	350	+	this Act, including rules for the collection, storage, handling,
	351	+	and movement of embryonic and fetal tissue remains; and
359	352		(2) the Department of State Health Services shall
360	353		adopt the forms and procedures necessary to implement this Act.
361		-	SECTION 9. (a) Chapter 171, Health and Safety Code, as
362		-	amended by this Act, applies only to an abortion performed on or
363		-	after February 1, 2018. An abortion performed before that date is
364		-	governed by the law in effect immediately before the effective date
365		-	of this Act, and that law is continued in effect for that purpose.
	354	+	SECTION 10. (a) Chapter 171, Health and Safety Code, as
	355	+	amended by this Act, applies only to a procedure that results in
	356	+	embryonic and fetal tissue remains being expelled or removed from a
	357	+	pregnant woman on or after February 1, 2018. A procedure that
	358	+	results in embryonic and fetal tissue remains being expelled or
	359	+	removed from a pregnant woman before that date is governed by the
	360	+	law in effect immediately before the effective date of this Act, and
	361	+	that law is continued in effect for that purpose.
366	362		(b) Chapter 697, Health and Safety Code, as added by this
367	363		Act, applies only to the disposition of embryonic and fetal tissue
368	364		remains that occurs on or after February 1, 2018. The disposition
369	365		of embryonic and fetal tissue remains that occurs before February
370	366		1, 2018, is governed by the law in effect immediately before the
371	367		effective date of this Act, and the former law is continued in
372	368		effect for that purpose.
373		-	SECTION 10. This Act takes effect September 1, 2017.
374		-	* * * * *
	369	+	SECTION 11. This Act takes effect September 1, 2017.