By: Perry , et al. S.B. No. 415
(In the Senate - Filed January 5, 2017; January 30, 2017,
read first time and referred to Committee on Health & Human
Services; March 7, 2017, reported favorably by the following vote:
Yeas 6, Nays 2; March 7, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition on the performance of dismemberment
abortions; providing penalties; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 171, Health and Safety Code, is amended
by adding Subchapter F to read as follows:
SUBCHAPTER F. DISMEMBERMENT ABORTIONS
Sec. 171.101. DEFINITION. In this subchapter,
"dismemberment abortion" means an abortion in which a person, with
the purpose of causing the death of an unborn child, dismembers the
unborn child and extracts the unborn child one piece at a time from
the uterus through the use of clamps, grasping forceps, tongs,
scissors, or a similar instrument that, through the convergence of
two rigid levers, slices, crushes, or grasps, or performs any
combination of those actions on, a piece of the unborn child's body
to cut or rip the piece from the body. The term does not include an
abortion that uses suction to dismember the body of an unborn child
by sucking pieces of the unborn child into a collection
container. The term includes a dismemberment abortion that is used
to cause the death of an unborn child and in which suction is
subsequently used to extract pieces of the unborn child after the
unborn child's death.
Sec. 171.102. DISMEMBERMENT ABORTIONS PROHIBITED. (a) A
person may not intentionally perform a dismemberment abortion
unless the dismemberment abortion is necessary in a medical
emergency.
(b) A woman on whom a dismemberment abortion is performed,
an employee or agent acting under the direction of a physician who
performs a dismemberment abortion, or a person who fills a
prescription or provides equipment used in a dismemberment abortion
does not violate Subsection (a).
Sec. 171.103. CRIMINAL PENALTY. (a) A person who violates
Section 171.102 commits an offense.
(b) An offense under this section is a state jail felony.
Sec. 171.104. CONSTRUCTION OF SUBCHAPTER. (a) This
subchapter shall be construed, as a matter of state law, to be
enforceable to the maximum possible extent consistent with but not
further than 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 concerning the requirements of the state or
federal constitution, unless the official is enjoined by a state or
federal court from enforcing this subchapter.
(d) This subchapter may not be construed to:
(1) authorize the prosecution of or a cause of action
to be brought against a woman on whom an abortion is performed or
induced in violation of this subchapter; or
(2) create or recognize a right to abortion or a right
to a particular method of abortion.
SECTION 2. 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 a dismemberment abortion in violation of
Subchapter F, Chapter 171, Health and Safety Code.
SECTION 3. 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, Health and Safety Code, or Subchapter C or F, Chapter 171,
Health and Safety Code.
SECTION 4. (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 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 any provision of this Act is found by any court to be
unconstitutionally vague, then the applications of that provision
that do not present constitutional vagueness problems shall be
severed and remain in force.
SECTION 5. The change in law made by this Act applies only
to an abortion performed on or after the effective date of this
Act. An abortion performed before the effective date of this Act
is governed by the law in effect on the date the abortion was
performed, and the former law is continued in effect for that
purpose.
SECTION 6. 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.
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