86R9861 SCL-F
By: Cain H.B. No. 1500
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting abortions after detection of an unborn
child's heartbeat and to requirements for performing or inducing an
abortion; authorizing an administrative penalty; creating a
criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Texas Heartbeat
Bill.
SECTION 2. Chapter 171, Health and Safety Code, is amended
by adding Subchapter H to read as follows:
SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT
Sec. 171.201. DEFINITIONS. In this subchapter:
(1) "Fetal heartbeat" means cardiac activity or the
steady and repetitive rhythmic contraction of the fetal heart
within the gestational sac.
(2) "Gestational age" means the amount of time that
has elapsed from the first day of a woman's last menstrual period.
(3) "Gestational sac" means the structure comprising
the extraembryonic membranes that envelop the unborn child and that
is typically visible by ultrasound after the fourth week of
pregnancy.
(4) "Physician" means an individual licensed to
practice medicine in this state, including a medical doctor and a
doctor of osteopathic medicine.
(5) "Pregnancy" means the human female reproductive
condition that:
(A) begins with fertilization;
(B) occurs when the woman is carrying the
developing human offspring; and
(C) is calculated from the first day of the
woman's last menstrual period.
(6) "Standard medical practice" means the degree of
skill, care, and diligence that a physician of the same medical
specialty would employ in similar circumstances.
(7) "Unborn child" means an offspring of human beings
from fertilization until birth.
Sec. 171.202. LEGISLATIVE FINDINGS. The legislature finds,
according to contemporary medical research, that:
(1) as many as 30 percent of natural pregnancies end in
spontaneous miscarriage;
(2) less than five percent of all natural pregnancies
end in spontaneous miscarriage after detection of fetal cardiac
activity;
(3) over 90 percent of in vitro pregnancies survive
the first trimester if cardiac activity is detected in the
gestational sac;
(4) nearly 90 percent of in vitro pregnancies do not
survive the first trimester where cardiac activity is not detected
in the gestational sac;
(5) fetal heartbeat, therefore, has become a key
medical predictor that an unborn child will reach live birth;
(6) cardiac activity begins at a biologically
identifiable moment in time, normally when the fetal heart is
formed in the gestational sac;
(7) Texas has legitimate interests from the outset of
a woman's pregnancy in protecting the health of the woman and the
life of an unborn child who may be born; and
(8) to make an informed choice about whether to
continue her pregnancy, the pregnant woman has a legitimate
interest in knowing the likelihood of the unborn child surviving to
full-term birth based on the presence of cardiac activity.
Sec. 171.203. DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
REQUIRED; RECORD. (a) Except as provided by Section 171.205, a
physician may not intentionally perform or induce an abortion on a
pregnant woman unless the physician has determined, in accordance
with this section, whether the woman's unborn child has a
detectable fetal heartbeat.
(b) In making a determination under Subsection (a), the
physician must use a test that is:
(1) consistent with the physician's good faith
understanding of standard medical practice;
(2) consistent with rules adopted under this
subchapter; and
(3) appropriate for the estimated gestational age of
the unborn child and the condition of the pregnant woman and her
pregnancy.
(c) A physician making a determination under Subsection (a)
shall record in the pregnant woman's medical record the estimated
gestational age of the unborn child, the test used for detecting a
fetal heartbeat, the date and time of the test, and the results of
the test.
(d) The executive commissioner may adopt rules specifying
the appropriate tests to be used in determining the presence of a
fetal heartbeat based on standard medical practice.
Sec. 171.204. ABORTION OF UNBORN CHILD WITH DETECTABLE
FETAL HEARTBEAT PROHIBITED. (a) Except as provided by Section
171.205, a physician may not intentionally perform or induce an
abortion on a pregnant woman with the specific intent of causing or
abetting the termination of the life of the woman's unborn child if
the physician detected a fetal heartbeat for the unborn child under
Section 171.203 or failed to perform a test to detect a fetal
heartbeat.
(b) A physician does not violate this section if the
physician performed a test for a fetal heartbeat under Section
171.203 and did not detect a fetal heartbeat.
(c) This section does not affect the provisions of this
chapter that restrict or regulate an abortion by a particular
method or during a particular stage of pregnancy.
Sec. 171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.
(a) This subchapter does not apply if a physician believes a
medical emergency exists that prevents compliance with this
subchapter.
(b) A physician who performs or induces an abortion under
circumstances described by Subsection (a) shall make written
notations in the pregnant woman's medical record of:
(1) the physician's belief that a medical emergency
necessitated the abortion; and
(2) the medical condition of the pregnant woman that
prevented compliance with this subchapter.
(c) A physician performing or inducing an abortion under
this section shall maintain in the physician's practice records a
copy of the notations made under Subsection (b) until the seventh
anniversary of the date that the abortion is performed or induced.
Sec. 171.206. CONSTRUCTION OF SUBCHAPTER. (a) This
subchapter does not create or recognize a right to abortion before a
fetal heartbeat is detected.
(b) This subchapter may not be construed to authorize the
initiation of a cause of action against or the prosecution of a
woman on whom an abortion is performed or induced or attempted to be
performed or induced in violation of this subchapter.
Sec. 171.207. CRIMINAL OFFENSE. (a) A person commits an
offense if the person violates this subchapter.
(b) An offense under this section is a state jail felony.
Sec. 171.208. ADMINISTRATIVE PENALTY. The Texas Medical
Board may take disciplinary action under Chapter 164, Occupations
Code, or assess an administrative penalty under Subchapter A,
Chapter 165, Occupations Code, against a person who violates this
subchapter.
Sec. 171.209. WRONGFUL DEATH ACTION. (a) A woman on whom
an abortion is performed or induced in violation of this subchapter
may file a civil action for wrongful death under Section 71.002,
Civil Practice and Remedies Code.
(b) Notwithstanding Section 71.010, Civil Practice and
Remedies Code, a woman who prevails in an action described by
Subsection (a) may:
(1) elect damages in the amount of $10,000 or an amount
determined by the trier of fact after the consideration of evidence
and before final judgment; and
(2) recover court costs and reasonable attorney's
fees.
(c) If a physician prevails in an action described by
Subsection (a) and the court finds that the pleading for the action
violated Section 9.011, Civil Practice and Remedies Code, the court
shall award reasonable attorney's fees to the physician.
SECTION 3. Subchapter A, Chapter 171, Health and Safety
Code, is amended by adding Section 171.008 to read as follows:
Sec. 171.008. REQUIRED DOCUMENTATION. (a) If an abortion
is performed or induced on a pregnant woman because of a medical
emergency, the physician who performs or induces the abortion shall
execute a written document that certifies the abortion is necessary
due to a medical emergency and specifies the woman's medical
condition requiring the abortion.
(b) A physician shall:
(1) place the document described by Subsection (a) in
the pregnant woman's medical record; and
(2) maintain a copy of the document described by
Subsection (a) in the physician's practice records until the
seventh anniversary of the date that the document is executed.
SECTION 4. Section 171.012, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (f) 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 commission
[Department of State Health Services];
(ii) are accessible on an Internet website
sponsored by the commission [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; and
(E) if a fetal heartbeat is detected under
Section 171.203, the physician who is to perform the abortion
informs the woman in writing of the statistical probability of
bringing the unborn child to term:
(i) to the best of the physician's
knowledge, based on the gestational age of the unborn child; or
(ii) as provided by commission rule;
(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 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) The executive commissioner may adopt rules that specify
the information required under Subsection (a)(4)(E) regarding the
statistical probability of bringing an unborn child to term based
on the gestational age of the child. The information in the rules
must be based on available medical evidence.
SECTION 5. Section 245.011(c), Health and Safety Code, is
amended to read as follows:
(c) The report must include:
(1) whether the abortion facility at which the
abortion is performed is licensed under this chapter;
(2) the patient's year of birth, race, marital status,
and state and county of residence;
(3) the type of abortion procedure;
(4) the date the abortion was performed;
(5) whether the patient survived the abortion, and if
the patient did not survive, the cause of death;
(6) the probable post-fertilization age of the unborn
child based on the best medical judgment of the attending physician
at the time of the procedure;
(7) the date, if known, of the patient's last menstrual
cycle;
(8) the number of previous live births of the patient;
[and]
(9) the number of previous induced abortions of the
patient;
(10) whether the abortion was performed or induced
because of a medical emergency and any medical condition of the
pregnant woman that required the abortion;
(11) whether the physician made a determination of the
presence of a fetal heartbeat in accordance with Section 171.203;
and
(12) whether the physician performed or induced the
abortion under circumstances described by Section 171.205.
SECTION 6. (a) After the issuance of a decision by the
United States Supreme Court overruling any prior ruling that
prohibits states from wholly or partly prohibiting abortion, the
issuance of any court order or judgment restoring, expanding, or
clarifying the authority of states to wholly or partly prohibit or
regulate abortion, or the effective date of an amendment to the
United States Constitution restoring, expanding, or clarifying the
authority of states to wholly or partly prohibit or regulate
abortion, the attorney general may apply to the appropriate state
or federal court for:
(1) a declaration that any one or more provisions of
this Act are constitutional; or
(2) a judgment or order lifting an injunction against
the enforcement of any one or more provisions of this Act.
(b) If the attorney general fails to apply for the relief
described by Subsection (a) of this section not later than the 30th
day after the date an event described by that subsection occurs, any
district attorney may apply to the appropriate state or federal
court for the relief described by that subsection.
SECTION 7. (a) It is the intent of the legislature that if a
court suspends enforcement of any provision of this Act, the
suspension is not to be regarded as repealing that provision.
(b) If any provision of this Act is held invalid or if the
application of any provision to any person or circumstance is held
invalid, the invalidity of that provision or application does not
affect any other provision or applications of this Act that can be
given effect without the invalid provision or application, and to
this end, the provisions of this Act are severable. It is the
intent of the legislature that any invalidity or potential
invalidity of a provision of this Act does not impair the immediate
and continuing enforceability of the remaining provisions. It is
furthermore the intent of the legislature that the provisions of
this Act do not have the effect of repealing or limiting any other
laws of this state.
SECTION 8. The change in law made by this Act applies only
to an abortion performed or induced on or after the effective date
of this Act.
SECTION 9. This Act takes effect September 1, 2019.