Texas 2019 - 86th Regular

Texas House Bill HB1500 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R9861 SCL-F
2	2	By: Cain H.B. No. 1500
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to prohibiting abortions after detection of an unborn
8	8	child's heartbeat and to requirements for performing or inducing an
9	9	abortion; authorizing an administrative penalty; creating a
10	10	criminal offense.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. This Act shall be known as the Texas Heartbeat
13	13	Bill.
14	14	SECTION 2. Chapter 171, Health and Safety Code, is amended
15	15	by adding Subchapter H to read as follows:
16	16	SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT
17	17	Sec. 171.201. DEFINITIONS. In this subchapter:
18	18	(1) "Fetal heartbeat" means cardiac activity or the
19	19	steady and repetitive rhythmic contraction of the fetal heart
20	20	within the gestational sac.
21	21	(2) "Gestational age" means the amount of time that
22	22	has elapsed from the first day of a woman's last menstrual period.
23	23	(3) "Gestational sac" means the structure comprising
24	24	the extraembryonic membranes that envelop the unborn child and that
25	25	is typically visible by ultrasound after the fourth week of
26	26	pregnancy.
27	27	(4) "Physician" means an individual licensed to
28	28	practice medicine in this state, including a medical doctor and a
29	29	doctor of osteopathic medicine.
30	30	(5) "Pregnancy" means the human female reproductive
31	31	condition that:
32	32	(A) begins with fertilization;
33	33	(B) occurs when the woman is carrying the
34	34	developing human offspring; and
35	35	(C) is calculated from the first day of the
36	36	woman's last menstrual period.
37	37	(6) "Standard medical practice" means the degree of
38	38	skill, care, and diligence that a physician of the same medical
39	39	specialty would employ in similar circumstances.
40	40	(7) "Unborn child" means an offspring of human beings
41	41	from fertilization until birth.
42	42	Sec. 171.202. LEGISLATIVE FINDINGS. The legislature finds,
43	43	according to contemporary medical research, that:
44	44	(1) as many as 30 percent of natural pregnancies end in
45	45	spontaneous miscarriage;
46	46	(2) less than five percent of all natural pregnancies
47	47	end in spontaneous miscarriage after detection of fetal cardiac
48	48	activity;
49	49	(3) over 90 percent of in vitro pregnancies survive
50	50	the first trimester if cardiac activity is detected in the
51	51	gestational sac;
52	52	(4) nearly 90 percent of in vitro pregnancies do not
53	53	survive the first trimester where cardiac activity is not detected
54	54	in the gestational sac;
55	55	(5) fetal heartbeat, therefore, has become a key
56	56	medical predictor that an unborn child will reach live birth;
57	57	(6) cardiac activity begins at a biologically
58	58	identifiable moment in time, normally when the fetal heart is
59	59	formed in the gestational sac;
60	60	(7) Texas has legitimate interests from the outset of
61	61	a woman's pregnancy in protecting the health of the woman and the
62	62	life of an unborn child who may be born; and
63	63	(8) to make an informed choice about whether to
64	64	continue her pregnancy, the pregnant woman has a legitimate
65	65	interest in knowing the likelihood of the unborn child surviving to
66	66	full-term birth based on the presence of cardiac activity.
67	67	Sec. 171.203. DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
68	68	REQUIRED; RECORD. (a) Except as provided by Section 171.205, a
69	69	physician may not intentionally perform or induce an abortion on a
70	70	pregnant woman unless the physician has determined, in accordance
71	71	with this section, whether the woman's unborn child has a
72	72	detectable fetal heartbeat.
73	73	(b) In making a determination under Subsection (a), the
74	74	physician must use a test that is:
75	75	(1) consistent with the physician's good faith
76	76	understanding of standard medical practice;
77	77	(2) consistent with rules adopted under this
78	78	subchapter; and
79	79	(3) appropriate for the estimated gestational age of
80	80	the unborn child and the condition of the pregnant woman and her
81	81	pregnancy.
82	82	(c) A physician making a determination under Subsection (a)
83	83	shall record in the pregnant woman's medical record the estimated
84	84	gestational age of the unborn child, the test used for detecting a
85	85	fetal heartbeat, the date and time of the test, and the results of
86	86	the test.
87	87	(d) The executive commissioner may adopt rules specifying
88	88	the appropriate tests to be used in determining the presence of a
89	89	fetal heartbeat based on standard medical practice.
90	90	Sec. 171.204. ABORTION OF UNBORN CHILD WITH DETECTABLE
91	91	FETAL HEARTBEAT PROHIBITED. (a) Except as provided by Section
92	92	171.205, a physician may not intentionally perform or induce an
93	93	abortion on a pregnant woman with the specific intent of causing or
94	94	abetting the termination of the life of the woman's unborn child if
95	95	the physician detected a fetal heartbeat for the unborn child under
96	96	Section 171.203 or failed to perform a test to detect a fetal
97	97	heartbeat.
98	98	(b) A physician does not violate this section if the
99	99	physician performed a test for a fetal heartbeat under Section
100	100	171.203 and did not detect a fetal heartbeat.
101	101	(c) This section does not affect the provisions of this
102	102	chapter that restrict or regulate an abortion by a particular
103	103	method or during a particular stage of pregnancy.
104	104	Sec. 171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.
105	105	(a) This subchapter does not apply if a physician believes a
106	106	medical emergency exists that prevents compliance with this
107	107	subchapter.
108	108	(b) A physician who performs or induces an abortion under
109	109	circumstances described by Subsection (a) shall make written
110	110	notations in the pregnant woman's medical record of:
111	111	(1) the physician's belief that a medical emergency
112	112	necessitated the abortion; and
113	113	(2) the medical condition of the pregnant woman that
114	114	prevented compliance with this subchapter.
115	115	(c) A physician performing or inducing an abortion under
116	116	this section shall maintain in the physician's practice records a
117	117	copy of the notations made under Subsection (b) until the seventh
118	118	anniversary of the date that the abortion is performed or induced.
119	119	Sec. 171.206. CONSTRUCTION OF SUBCHAPTER. (a) This
120	120	subchapter does not create or recognize a right to abortion before a
121	121	fetal heartbeat is detected.
122	122	(b) This subchapter may not be construed to authorize the
123	123	initiation of a cause of action against or the prosecution of a
124	124	woman on whom an abortion is performed or induced or attempted to be
125	125	performed or induced in violation of this subchapter.
126	126	Sec. 171.207. CRIMINAL OFFENSE. (a) A person commits an
127	127	offense if the person violates this subchapter.
128	128	(b) An offense under this section is a state jail felony.
129	129	Sec. 171.208. ADMINISTRATIVE PENALTY. The Texas Medical
130	130	Board may take disciplinary action under Chapter 164, Occupations
131	131	Code, or assess an administrative penalty under Subchapter A,
132	132	Chapter 165, Occupations Code, against a person who violates this
133	133	subchapter.
134	134	Sec. 171.209. WRONGFUL DEATH ACTION. (a) A woman on whom
135	135	an abortion is performed or induced in violation of this subchapter
136	136	may file a civil action for wrongful death under Section 71.002,
137	137	Civil Practice and Remedies Code.
138	138	(b) Notwithstanding Section 71.010, Civil Practice and
139	139	Remedies Code, a woman who prevails in an action described by
140	140	Subsection (a) may:
141	141	(1) elect damages in the amount of $10,000 or an amount
142	142	determined by the trier of fact after the consideration of evidence
143	143	and before final judgment; and
144	144	(2) recover court costs and reasonable attorney's
145	145	fees.
146	146	(c) If a physician prevails in an action described by
147	147	Subsection (a) and the court finds that the pleading for the action
148	148	violated Section 9.011, Civil Practice and Remedies Code, the court
149	149	shall award reasonable attorney's fees to the physician.
150	150	SECTION 3. Subchapter A, Chapter 171, Health and Safety
151	151	Code, is amended by adding Section 171.008 to read as follows:
152	152	Sec. 171.008. REQUIRED DOCUMENTATION. (a) If an abortion
153	153	is performed or induced on a pregnant woman because of a medical
154	154	emergency, the physician who performs or induces the abortion shall
155	155	execute a written document that certifies the abortion is necessary
156	156	due to a medical emergency and specifies the woman's medical
157	157	condition requiring the abortion.
158	158	(b) A physician shall:
159	159	(1) place the document described by Subsection (a) in
160	160	the pregnant woman's medical record; and
161	161	(2) maintain a copy of the document described by
162	162	Subsection (a) in the physician's practice records until the
163	163	seventh anniversary of the date that the document is executed.
164	164	SECTION 4. Section 171.012, Health and Safety Code, is
165	165	amended by amending Subsection (a) and adding Subsection (f) to
166	166	read as follows:
167	167	(a) Consent to an abortion is voluntary and informed only
168	168	if:
169	169	(1) the physician who is to perform the abortion
170	170	informs the pregnant woman on whom the abortion is to be performed
171	171	of:
172	172	(A) the physician's name;
173	173	(B) the particular medical risks associated with
174	174	the particular abortion procedure to be employed, including, when
175	175	medically accurate:
176	176	(i) the risks of infection and hemorrhage;
177	177	(ii) the potential danger to a subsequent
178	178	pregnancy and of infertility; and
179	179	(iii) the possibility of increased risk of
180	180	breast cancer following an induced abortion and the natural
181	181	protective effect of a completed pregnancy in avoiding breast
182	182	cancer;
183	183	(C) the probable gestational age of the unborn
184	184	child at the time the abortion is to be performed; and
185	185	(D) the medical risks associated with carrying
186	186	the child to term;
187	187	(2) the physician who is to perform the abortion or the
188	188	physician's agent informs the pregnant woman that:
189	189	(A) medical assistance benefits may be available
190	190	for prenatal care, childbirth, and neonatal care;
191	191	(B) the father is liable for assistance in the
192	192	support of the child without regard to whether the father has
193	193	offered to pay for the abortion; and
194	194	(C) public and private agencies provide
195	195	pregnancy prevention counseling and medical referrals for
196	196	obtaining pregnancy prevention medications or devices, including
197	197	emergency contraception for victims of rape or incest;
198	198	(3) the physician who is to perform the abortion or the
199	199	physician's agent:
200	200	(A) provides the pregnant woman with the printed
201	201	materials described by Section 171.014; and
202	202	(B) informs the pregnant woman that those
203	203	materials:
204	204	(i) have been provided by the commission
205	205	[Department of State Health Services];
206	206	(ii) are accessible on an Internet website
207	207	sponsored by the commission [department];
208	208	(iii) describe the unborn child and list
209	209	agencies that offer alternatives to abortion; and
210	210	(iv) include a list of agencies that offer
211	211	sonogram services at no cost to the pregnant woman;
212	212	(4) before any sedative or anesthesia is administered
213	213	to the pregnant woman and at least 24 hours before the abortion or
214	214	at least two hours before the abortion if the pregnant woman waives
215	215	this requirement by certifying that she currently lives 100 miles
216	216	or more from the nearest abortion provider that is a facility
217	217	licensed under Chapter 245 or a facility that performs more than 50
218	218	abortions in any 12-month period:
219	219	(A) the physician who is to perform the abortion
220	220	or an agent of the physician who is also a sonographer certified by
221	221	a national registry of medical sonographers performs a sonogram on
222	222	the pregnant woman on whom the abortion is to be performed;
223	223	(B) the physician who is to perform the abortion
224	224	displays the sonogram images in a quality consistent with current
225	225	medical practice in a manner that the pregnant woman may view them;
226	226	(C) the physician who is to perform the abortion
227	227	provides, in a manner understandable to a layperson, a verbal
228	228	explanation of the results of the sonogram images, including a
229	229	medical description of the dimensions of the embryo or fetus, the
230	230	presence of cardiac activity, and the presence of external members
231	231	and internal organs; [and]
232	232	(D) the physician who is to perform the abortion
233	233	or an agent of the physician who is also a sonographer certified by
234	234	a national registry of medical sonographers makes audible the heart
235	235	auscultation for the pregnant woman to hear, if present, in a
236	236	quality consistent with current medical practice and provides, in a
237	237	manner understandable to a layperson, a simultaneous verbal
238	238	explanation of the heart auscultation; and
239	239	(E) if a fetal heartbeat is detected under
240	240	Section 171.203, the physician who is to perform the abortion
241	241	informs the woman in writing of the statistical probability of
242	242	bringing the unborn child to term:
243	243	(i) to the best of the physician's
244	244	knowledge, based on the gestational age of the unborn child; or
245	245	(ii) as provided by commission rule;
246	246	(5) before receiving a sonogram under Subdivision
247	247	(4)(A) and before the abortion is performed and before any sedative
248	248	or anesthesia is administered, the pregnant woman completes and
249	249	certifies with her signature an election form that states as
250	250	follows:
251	251	"ABORTION AND SONOGRAM ELECTION
252	252	(1) THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY
253	253	SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN
254	254	PROVIDED AND EXPLAINED TO ME.
255	255	(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN
256	256	ABORTION.
257	257	(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR
258	258	TO RECEIVING AN ABORTION.
259	259	(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE
260	260	SONOGRAM IMAGES.
261	261	(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE
262	262	HEARTBEAT.
263	263	(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN
264	264	EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO
265	265	ONE OF THE FOLLOWING:
266	266	___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,
267	267	INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN
268	268	REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN
269	269	REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT
270	270	RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
271	271	___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE
272	272	WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY
273	273	CODE.
274	274	___ MY FETUS HAS AN IRREVERSIBLE MEDICAL CONDITION OR
275	275	ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND
276	276	DOCUMENTED IN MY MEDICAL FILE.
277	277	(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND
278	278	WITHOUT COERCION.
279	279	(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE
280	280	NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER
281	281	245, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE
282	282	THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
283	283	I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR
284	284	MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED
285	285	UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS
286	286	IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS
287	287	AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION
288	288	PROCEDURE. MY PLACE OF RESIDENCE IS:__________.
289	289	________________________________________
290	290	SIGNATURE DATE";
291	291	(6) before the abortion is performed, the physician
292	292	who is to perform the abortion receives a copy of the signed,
293	293	written certification required by Subdivision (5); and
294	294	(7) the pregnant woman is provided the name of each
295	295	person who provides or explains the information required under this
296	296	subsection.
297	297	(f) The executive commissioner may adopt rules that specify
298	298	the information required under Subsection (a)(4)(E) regarding the
299	299	statistical probability of bringing an unborn child to term based
300	300	on the gestational age of the child. The information in the rules
301	301	must be based on available medical evidence.
302	302	SECTION 5. Section 245.011(c), Health and Safety Code, is
303	303	amended to read as follows:
304	304	(c) The report must include:
305	305	(1) whether the abortion facility at which the
306	306	abortion is performed is licensed under this chapter;
307	307	(2) the patient's year of birth, race, marital status,
308	308	and state and county of residence;
309	309	(3) the type of abortion procedure;
310	310	(4) the date the abortion was performed;
311	311	(5) whether the patient survived the abortion, and if
312	312	the patient did not survive, the cause of death;
313	313	(6) the probable post-fertilization age of the unborn
314	314	child based on the best medical judgment of the attending physician
315	315	at the time of the procedure;
316	316	(7) the date, if known, of the patient's last menstrual
317	317	cycle;
318	318	(8) the number of previous live births of the patient;
319	319	[and]
320	320	(9) the number of previous induced abortions of the
321	321	patient;
322	322	(10) whether the abortion was performed or induced
323	323	because of a medical emergency and any medical condition of the
324	324	pregnant woman that required the abortion;
325	325	(11) whether the physician made a determination of the
326	326	presence of a fetal heartbeat in accordance with Section 171.203;
327	327	and
328	328	(12) whether the physician performed or induced the
329	329	abortion under circumstances described by Section 171.205.
330	330	SECTION 6. (a) After the issuance of a decision by the
331	331	United States Supreme Court overruling any prior ruling that
332	332	prohibits states from wholly or partly prohibiting abortion, the
333	333	issuance of any court order or judgment restoring, expanding, or
334	334	clarifying the authority of states to wholly or partly prohibit or
335	335	regulate abortion, or the effective date of an amendment to the
336	336	United States Constitution restoring, expanding, or clarifying the
337	337	authority of states to wholly or partly prohibit or regulate
338	338	abortion, the attorney general may apply to the appropriate state
339	339	or federal court for:
340	340	(1) a declaration that any one or more provisions of
341	341	this Act are constitutional; or
342	342	(2) a judgment or order lifting an injunction against
343	343	the enforcement of any one or more provisions of this Act.
344	344	(b) If the attorney general fails to apply for the relief
345	345	described by Subsection (a) of this section not later than the 30th
346	346	day after the date an event described by that subsection occurs, any
347	347	district attorney may apply to the appropriate state or federal
348	348	court for the relief described by that subsection.
349	349	SECTION 7. (a) It is the intent of the legislature that if a
350	350	court suspends enforcement of any provision of this Act, the
351	351	suspension is not to be regarded as repealing that provision.
352	352	(b) If any provision of this Act is held invalid or if the
353	353	application of any provision to any person or circumstance is held
354	354	invalid, the invalidity of that provision or application does not
355	355	affect any other provision or applications of this Act that can be
356	356	given effect without the invalid provision or application, and to
357	357	this end, the provisions of this Act are severable. It is the
358	358	intent of the legislature that any invalidity or potential
359	359	invalidity of a provision of this Act does not impair the immediate
360	360	and continuing enforceability of the remaining provisions. It is
361	361	furthermore the intent of the legislature that the provisions of
362	362	this Act do not have the effect of repealing or limiting any other
363	363	laws of this state.
364	364	SECTION 8. The change in law made by this Act applies only
365	365	to an abortion performed or induced on or after the effective date
366	366	of this Act.
367	367	SECTION 9. This Act takes effect September 1, 2019.