Texas 2021 - 87th Regular

Texas House Bill HB1515 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	87R18317 SCL-F
2		-	By: Slawson, Cain, Burrows, Klick, Leach, H.B. No. 1515
3		-	et al.
4		-	Substitute the following for H.B. No. 1515:
5		-	By: Klick C.S.H.B. No. 1515
	1	+	By: Slawson H.B. No. 1515
6	2
7	3
8	4		A BILL TO BE ENTITLED
9	5		AN ACT
10	6		relating to abortion, including abortions after detection of an
11	7		unborn child's heartbeat; authorizing a private civil right of
12	8		action.
13	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	10		SECTION 1. This Act shall be known as the Texas Heartbeat
15	11		Act.
16	12		SECTION 2. The legislature finds that the State of Texas
17	13		never repealed, either expressly or by implication, the state
18	14		statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113
19	15		(1973), that prohibit and criminalize abortion unless the mother's
20	16		life is in danger.
21	17		SECTION 3. Chapter 171, Health and Safety Code, is amended
22	18		by adding Subchapter H to read as follows:
23	19		SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT
24	20		Sec. 171.201. DEFINITIONS. In this subchapter:
25	21		(1) "Fetal heartbeat" means cardiac activity or the
26	22		steady and repetitive rhythmic contraction of the fetal heart
27	23		within the gestational sac.
28	24		(2) "Gestational age" means the amount of time that
29	25		has elapsed from the first day of a woman's last menstrual period.
30	26		(3) "Gestational sac" means the structure comprising
31	27		the extraembryonic membranes that envelop the unborn child and that
32	28		is typically visible by ultrasound after the fourth week of
33	29		pregnancy.
34	30		(4) "Physician" means an individual licensed to
35	31		practice medicine in this state, including a medical doctor and a
36	32		doctor of osteopathic medicine.
37	33		(5) "Pregnancy" means the human female reproductive
38	34		condition that:
39	35		(A) begins with fertilization;
40	36		(B) occurs when the woman is carrying the
41	37		developing human offspring; and
42	38		(C) is calculated from the first day of the
43	39		woman's last menstrual period.
44	40		(6) "Standard medical practice" means the degree of
45	41		skill, care, and diligence that an obstetrician of ordinary
46	42		judgment, learning, and skill would employ in like circumstances.
47	43		(7) "Unborn child" means a human fetus or embryo in any
48	44		stage of gestation from fertilization until birth.
49	45		Sec. 171.202. LEGISLATIVE FINDINGS. The legislature finds,
50	46		according to contemporary medical research, that:
51	47		(1) fetal heartbeat has become a key medical predictor
52	48		that an unborn child will reach live birth;
53	49		(2) cardiac activity begins at a biologically
54	50		identifiable moment in time, normally when the fetal heart is
55	51		formed in the gestational sac;
56	52		(3) Texas has compelling interests from the outset of
57	53		a woman's pregnancy in protecting the health of the woman and the
58	54		life of the unborn child; and
59	55		(4) to make an informed choice about whether to
60	56		continue her pregnancy, the pregnant woman has a compelling
61	57		interest in knowing the likelihood of her unborn child surviving to
62	58		full-term birth based on the presence of cardiac activity.
63	59		Sec. 171.203. DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
64		-	REQUIRED; RECORD. (a) For the purposes of determining the
65		-	~~presence~~ of a fetal heartbeat under this section, "standard medical
	60	+	REQUIRED; RECORD. (a) For the purposes of determining the presence
	61	+	of a fetal heartbeat under this section, "standard medical
66	62		practice" includes employing the appropriate means of detecting the
67	63		heartbeat based on the estimated gestational age of the unborn
68	64		child and the condition of the woman and her pregnancy.
69	65		(b) Except as provided by Section 171.205, a physician may
70	66		not knowingly perform or induce an abortion on a pregnant woman
71	67		unless the physician has determined, in accordance with this
72	68		section, whether the woman's unborn child has a detectable fetal
73	69		heartbeat.
74	70		(c) In making a determination under Subsection (b), the
75	71		physician must use a test that is:
76	72		(1) consistent with the physician's good faith and
77	73		reasonable understanding of standard medical practice; and
78	74		(2) appropriate for the estimated gestational age of
79	75		the unborn child and the condition of the pregnant woman and her
80	76		pregnancy.
81	77		(d) A physician making a determination under Subsection (b)
82	78		shall record in the pregnant woman's medical record:
83	79		(1) the estimated gestational age of the unborn child;
84	80		(2) the method used to estimate the gestational age;
85	81		and
86	82		(3) the test used for detecting a fetal heartbeat,
87	83		including the date, time, and results of the test.
88	84		Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH
89	85		DETECTABLE FETAL HEARTBEAT; EFFECT. (a) Except as provided by
90	86		Section 171.205, a physician may not knowingly perform or induce an
91	87		abortion on a pregnant woman if the physician detected a fetal
92	88		heartbeat for the unborn child as required by Section 171.203 or
93	89		failed to perform a test to detect a fetal heartbeat.
94	90		(b) A physician does not violate this section if the
95	91		physician performed a test for a fetal heartbeat as required by
96	92		Section 171.203 and did not detect a fetal heartbeat.
97	93		(c) This section does not affect:
98	94		(1) the provisions of this chapter that restrict or
99	95		regulate an abortion by a particular method or during a particular
100	96		stage of pregnancy; or
101	97		(2) any other provision of state law that regulates or
102	98		prohibits abortion.
103	99		Sec. 171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.
104		-	(a) ~~Sections 171.203 and~~ 171.204 do not apply if a physician
105		-	~~believes a~~ medical emergency exists that prevents compliance with
106		-	~~this~~ subchapter.
	100	+	(a) Section 171.204 does not apply if a physician believes a
	101	+	medical emergency exists that prevents compliance with this
	102	+	subchapter.
107	103		(b) A physician who performs or induces an abortion under
108	104		circumstances described by Subsection (a) shall make written
109	105		notations in the pregnant woman's medical record of:
110	106		(1) the physician's belief that a medical emergency
111	107		necessitated the abortion; and
112	108		(2) the medical condition of the pregnant woman that
113	109		prevented compliance with this subchapter.
114	110		(c) A physician performing or inducing an abortion under
115	111		this section shall maintain in the physician's practice records a
116	112		copy of the notations made under Subsection (b).
117	113		Sec. 171.206. CONSTRUCTION OF SUBCHAPTER. (a) This
118	114		subchapter does not create or recognize a right to abortion before a
119	115		fetal heartbeat is detected.
120	116		(b) This subchapter may not be construed to:
121	117		(1) authorize the initiation of a cause of action
122	118		against or the prosecution of a woman on whom an abortion is
123	119		performed or induced or attempted to be performed or induced in
124	120		violation of this subchapter;
125	121		(2) wholly or partly repeal, either expressly or by
126	122		implication, any other statute that regulates or prohibits
127	123		abortion, including Chapter 6-1/2, Title 71, Revised Statutes; or
128	124		(3) restrict a political subdivision from regulating
129	125		or prohibiting abortion in a manner that is at least as stringent as
130	126		the laws of this state.
131		-	Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT.
132		-	(a) Notwithstanding Section 171.005 or any other law, the
	127	+	Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT. (a) The
133	128		requirements of this subchapter shall be enforced exclusively
134		-	through the private civil actions described in Section 171.208. No
135		-	enforcement of this subchapter, and no enforcement of Chapters 19
136		-	and 22, Penal Code, in response to violations of this subchapter,
137		-	may be taken or threatened by this state, a political subdivision, a
138		-	district or county attorney, or an executive or administrative
139		-	officer or employee of this state or a political subdivision
140		-	against any person, except as provided in Section 171.208.
	129	+	through the private civil enforcement actions described in section
	130	+	171.208. No enforcement of this subchapter, and no enforcement of
	131	+	Chapters 19 and 22, Penal Code, in response to violations of this
	132	+	subchapter, may be taken or threatened by this state, a political
	133	+	subdivision, a district or county attorney, or an executive or
	134	+	administrative officer or employee of this state or a political
	135	+	subdivision against any person, except as provided in section
	136	+	171.208.
141	137		(b) Subsection (a) may not be construed to:
142	138		(1) legalize the conduct prohibited by this subchapter
143	139		or by Chapter 6-1/2, Title 71, Revised Statutes;
144	140		(2) limit in any way or affect the availability of a
145	141		remedy established by Section 171.208; or
146	142		(3) limit the enforceability of any other laws that
147	143		regulate or prohibit abortion.
148	144		Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
149	145		ABETTING VIOLATION. (a) Any person, other than an officer or
150	146		employee of a state or local governmental entity in this state, may
151	147		bring a civil action against any person who:
152	148		(1) performs or induces an abortion in violation of
153	149		this chapter;
154	150		(2) knowingly engages in conduct that aids or abets
155	151		the performance or inducement of an abortion, including paying for
156	152		or reimbursing the costs of an abortion through insurance or
157	153		otherwise, if the abortion is performed or induced in violation of
158	154		this chapter, regardless of whether the person knew or should have
159	155		known that the abortion would be performed or induced in violation
160		-	of this chapter; or
161		-	(3) intends to engage in the conduct described by
162		-	Subdivision (1) or (2).
	156	+	of this chapter.
163	157		(b) If a claimant prevails in an action brought under this
164	158		section, the court shall award:
165	159		(1) injunctive relief sufficient to prevent the
166	160		defendant from violating this chapter or engaging in acts that aid
167	161		or abet violations of this chapter;
168	162		(2) statutory damages in an amount of not less than
169	163		$10,000 for each abortion that the defendant performed or induced
170	164		in violation of this chapter, and for each abortion performed or
171	165		induced in violation of this chapter that the defendant aided or
172	166		abetted; and
173	167		(3) costs and attorney's fees.
174	168		(c) Notwithstanding Subsection (b), a court may not award
175		-	relief under this section in response to a violation of Subsection
176		-	(a)(1) or (2) if the defendant demonstrates that the defendant
177		-	previously paid the full amount of statutory damages under
178		-	Subsection (b)(2) in a previous action for that particular abortion
179		-	performed or induced in violation of this chapter, or for the
180		-	particular conduct that aided or abetted an abortion performed or
181		-	induced in violation of this chapter.
	169	+	relief under this section if the defendant demonstrates that the
	170	+	defendant previously paid statutory damages in a previous action
	171	+	for that particular abortion performed or induced in violation of
	172	+	this chapter, or for the particular conduct that aided or abetted an
	173	+	abortion performed or induced in violation of this chapter.
182	174		(d) Notwithstanding Chapter 16, Civil Practice and Remedies
183		-	Code, or any other law, a person may bring an action under this
184		-	section not later than the sixth anniversary of the date the cause
185		-	of action accrues.
	175	+	Code, a person may bring an action under this section not later than
	176	+	the sixth anniversary of the date the cause of action accrues.
186	177		(e) Notwithstanding any other law, the following are not a
187	178		defense to an action brought under this section:
188	179		(1) ignorance or mistake of law;
189	180		(2) a defendant's belief that the requirements of this
190	181		chapter are unconstitutional or were unconstitutional;
191	182		(3) a defendant's reliance on any court decision that
192	183		has been overruled on appeal or by a subsequent court, even if that
193	184		court decision had not been overruled when the defendant engaged in
194	185		conduct that violates this chapter;
195	186		(4) a defendant's reliance on any state or federal
196	187		court decision that is not binding on the court in which the action
197	188		has been brought;
198		-	(5) ~~non-mutual~~ issue preclusion or ~~non-mutual~~ claim
	189	+	(5) nonmutual issue preclusion or nonmutual claim
199	190		preclusion;
200	191		(6) the consent of the unborn child's mother to the
201	192		abortion; or
202	193		(7) any claim that the enforcement of this chapter or
203	194		the imposition of civil liability against the defendant will
204	195		violate the constitutional rights of third parties, except as
205	196		provided by section 171.209.
206		-	(f) It is an affirmative defense if:
207		-	(1) a person sued under Subsection (a)(2) reasonably
208		-	believed, after conducting a reasonable investigation, that the
209		-	physician performing or inducing the abortion had complied or would
210		-	comply with this chapter; or
211		-	(2) a person sued under Subsection (a)(3) reasonably
212		-	believed, after conducting a reasonable investigation, that the
213		-	physician performing or inducing the abortion will comply with this
214		-	chapter.
215		-	(f-1) The defendant has the burden of proving an affirmative
216		-	defense under Subsection (f)(1) or (2) by a preponderance of the
217		-	evidence.
	197	+	(f) It is an affirmative defense if a person sued under
	198	+	Subsection (a)(2) reasonably believed, after conducting a
	199	+	reasonable investigation, that the physician performing or
	200	+	inducing the abortion had complied or would comply with this
	201	+	chapter. The defendant has the burden of proving the affirmative
	202	+	defense under this subsection by a preponderance of the evidence.
218	203		(g) This section may not be construed to impose liability on
219	204		any speech or conduct protected by the First Amendment of the United
220	205		States Constitution, as made applicable to the states through the
221	206		United States Supreme Court's interpretation of the Fourteenth
222	207		Amendment of the United States Constitution, or by Section 8,
223	208		Article I, Texas Constitution.
224	209		(h) Notwithstanding any other law, this state, a state
225	210		official, or a district or county attorney may not intervene in an
226	211		action brought under this section. This subsection does not
227	212		prohibit a person described by this subsection from filing an
228	213		amicus curiae brief in the action.
229	214		(i) Notwithstanding any other law, a court may not award
230	215		costs or attorney's fees under the Texas Rules of Civil Procedure or
231	216		any other rule adopted by the supreme court under Section 22.004,
232	217		Government Code, to a defendant in an action brought under this
233	218		section.
234	219		Sec. 171.209. CIVIL LIABILITY: UNDUE BURDEN DEFENSE
235	220		LIMITATIONS. (a) A defendant against whom an action is brought
236	221		under Section 171.208 does not have standing to assert the rights of
237	222		women seeking an abortion as a defense to liability under that
238	223		section unless:
239	224		(1) the United States Supreme Court holds that the
240	225		courts of this state must confer standing on that defendant to
241	226		assert the third-party rights of women seeking an abortion in state
242	227		court as a matter of federal constitutional law; or
243		-	(2) the defendant has standing to assert the rights of
244		-	women seeking an abortion under the tests for third-party standing
245		-	established by the United States Supreme Court.
	228	+	(2) the defendant is an abortion provider, an employee
	229	+	of an abortion provider, or a physician who performs abortions.
246	230		(b) A defendant in an action brought under Section 171.208
247	231		may assert an affirmative defense to liability under this section
248		-	if:
	232	+	only if:
249	233		(1) the defendant has standing to assert the
250		-	third-party rights ~~of a woman or group~~ of women seeking an abortion
251		-	~~in accordance with~~ Subsection (a); and
	234	+	third-party rights of women seeking an abortion in accordance with
	235	+	Subsection (a); and
252	236		(2) the defendant demonstrates that the relief sought
253		-	by the claimant will impose an undue burden on ~~that woman or that~~
254		-	~~group of women seeking an~~ abortion.
	237	+	by the claimant will impose an undue burden on women seeking an
	238	+	abortion.
255	239		(c) A court may not find an undue burden under Subsection
256	240		(b) unless the defendant introduces evidence proving that:
257		-	(1) an award of relief will prevent a woman or a group
258		-	of women from obtaining an abortion; or
	241	+	(1) an award of relief will prevent an identifiable
	242	+	woman or an identifiable group of women from obtaining an abortion;
	243	+	or
259	244		(2) an award of relief will place a substantial
260		-	obstacle in the path of a woman or ~~a group of women who are seeking~~
261		-	an abortion.
	245	+	obstacle in the path of an identifiable woman or an identifiable
	246	+	group of women who are seeking an abortion.
262	247		(d) A defendant may not establish an undue burden under this
263	248		section by:
264	249		(1) merely demonstrating that an award of relief will
265	250		prevent women from obtaining support or assistance, financial or
266	251		otherwise, from others in their effort to obtain an abortion; or
267	252		(2) arguing or attempting to demonstrate that an award
268	253		of relief against other defendants or other potential defendants
269	254		will impose an undue burden on women seeking an abortion.
270	255		(e) The affirmative defense under Subsection (b) is not
271	256		available if the United States Supreme Court overrules Roe v. Wade,
272	257		410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833
273	258		(1992), regardless of whether the conduct on which the cause of
274	259		action is based under Section 171.208 occurred before the Supreme
275	260		Court overruled either of those decisions.
276		-	(f) Nothing in this section shall in any way limit or
277		-	preclude a defendant from asserting the defendant's personal
278		-	constitutional rights as a defense to liability under Section
279		-	171.208, and a court may not award relief under Section 171.208 if
280		-	the conduct for which the defendant has been sued was an exercise of
281		-	state or federal constitutional rights that personally belong to
282		-	the defendant.
283		-	Sec. 171.210. CIVIL LIABILITY: VENUE.
284		-	(a) Notwithstanding any other law, including Section 15.002,
285		-	Civil Practice and Remedies Code, a civil action brought under
286		-	Section 171.208 shall be brought in:
	261	+	Sec. 171.210. CIVIL LIABILITY: VENUE. Notwithstanding any
	262	+	other law, including Section 15.002, Civil Practice and Remedies
	263	+	Code, a civil action brought under Section 171.211 shall be brought
	264	+	in:
287	265		(1) the county in which all or a substantial part of
288	266		the events or omissions giving rise to the claim occurred;
289	267		(2) the county of residence for any one of the natural
290	268		person defendants at the time the cause of action accrued;
291	269		(3) the county of the principal office in this state of
292	270		any one of the defendants that is not a natural person; or
293	271		(4) the county of residence for the claimant if the
294	272		claimant is a natural person residing in this state.
295		-	(b) If a civil action is brought under Section 171.208 in
296		-	any one of the venues described by Subsection (a), the action may
297		-	not be transferred to a different venue without the written consent
298		-	of all parties.
299	273		Sec. 171.211. SOVEREIGN, GOVERNMENTAL, AND OFFICIAL
300	274		IMMUNITY PRESERVED. (a) This section prevails over any
301	275		conflicting law, including:
302	276		(1) the Uniform Declaratory Judgments Act; and
303	277		(2) Chapter 37, Civil Practice and Remedies Code.
304	278		(b) This state has sovereign immunity, a political
305	279		subdivision has governmental immunity, and each officer and
306	280		employee of this state or a political subdivision has official
307	281		immunity in any action, claim, or counterclaim or any type of legal
308	282		or equitable action that challenges the validity of any provision
309	283		or application of this chapter, on constitutional grounds or
310	284		otherwise.
311	285		(c) A provision of state law may not be construed to waive or
312	286		abrogate an immunity described by Subsection (b) unless it
313	287		expressly waives immunity under this section.
314		-	Sec. 171.212. SEVERABILITY. (a) Mindful of Leavitt v.
315		-	~~Jane~~ L.
316		-	~~the~~ severability of a state statute regulating abortion the United
	288	+	Sec. 171.212. SEVERABILITY. (a) Mindful of Leavitt v. Jane
	289	+	L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the
	290	+	severability of a state statute regulating abortion the United
317	291		States Supreme Court held that an explicit statement of legislative
318	292		intent is controlling, it is the intent of the legislature that
319	293		every provision, section, subsection, sentence, clause, phrase, or
320	294		word in this chapter, and every application of the provisions in
321	295		this chapter, are severable from each other.
322	296		(b) If any application of any provision in this chapter to
323	297		any person, group of persons, or circumstances is found by a court
324	298		to be invalid or unconstitutional, the remaining applications of
325	299		that provision to all other persons and circumstances shall be
326	300		severed and may not be affected. All constitutionally valid
327	301		applications of this chapter shall be severed from any applications
328	302		that a court finds to be invalid, leaving the valid applications in
329	303		force, because it is the legislature's intent and priority that the
330	304		valid applications be allowed to stand alone. Even if a reviewing
331	305		court finds a provision of this chapter to impose an undue burden in
332	306		a large or substantial fraction of relevant cases, the applications
333	307		that do not present an undue burden shall be severed from the
334		-	remaining ~~applications~~ and shall remain in force, and shall be
	308	+	remaining provisions and shall remain in force, and shall be
335	309		treated as if the legislature had enacted a statute limited to the
336	310		persons, group of persons, or circumstances for which the statute's
337	311		application does not present an undue burden.
338		-	(b-1) If any court declares or finds a provision of this
339		-	chapter facially unconstitutional, when discrete applications of
340		-	that provision can be enforced against a person, group of persons,
341		-	or circumstances without violating the United States Constitution
342		-	and Texas Constitution, those applications shall be severed from
343		-	all remaining applications of the provision, and the provision
344		-	shall be interpreted as if the legislature had enacted a provision
345		-	limited to the persons, group of persons, or circumstances for
346		-	which the provision's application will not violate the United
347		-	States Constitution and Texas Constitution.
348	312		(c) The legislature further declares that it would have
349	313		enacted this chapter, and each provision, section, subsection,
350	314		sentence, clause, phrase, or word, and all constitutional
351	315		applications of this chapter, irrespective of the fact that any
352	316		provision, section, subsection, sentence, clause, phrase, or word,
353	317		or applications of this chapter, were to be declared
354	318		unconstitutional or to represent an undue burden.
355	319		(d) If any provision of this chapter is found by any court to
356	320		be unconstitutionally vague, then the applications of that
357	321		provision that do not present constitutional vagueness problems
358	322		shall be severed and remain in force.
359	323		(e) No court may decline to enforce the severability
360		-	requirements of Subsections (a), (b), (~~b-1), (~~c), and (d) on the
361		-	~~ground~~ that severance would rewrite the statute or involve the
362		-	~~court in~~ legislative or lawmaking activity. A court that declines
363		-	to enforce or enjoins a state official from enforcing a statutory
	324	+	requirements of Subsections (a), (b), (c), and (d) on the ground
	325	+	that severance would rewrite the statute or involve the court in
	326	+	legislative or lawmaking activity. A court that declines to
	327	+	enforce or enjoins a state official from enforcing a statutory
364	328		provision does not rewrite a statute, as the statute continues to
365	329		contain the same words as before the court's decision. A judicial
366	330		injunction or declaration of unconstitutionality:
367	331		(1) is nothing more than an edict prohibiting
368	332		enforcement that may subsequently be vacated by a later court if
369	333		that court has a different understanding of the requirements of the
370	334		Texas Constitution or United States Constitution;
371	335		(2) is not a formal amendment of the language in a
372	336		statute; and
373	337		(3) no more rewrites a statute than a decision by the
374	338		executive not to enforce a duly enacted statute in a limited and
375	339		defined set of circumstances.
	340	+	(f) If any federal or state court declares unconstitutional
	341	+	or enjoins the enforcement of a provision in this chapter and fails
	342	+	to enforce the severability requirements of Subsections (a), (b),
	343	+	(c), (d), and (e), the executive commissioner shall:
	344	+	(1) adopt rules that enforce the requirements
	345	+	described by this chapter to the maximum possible extent while
	346	+	avoiding the constitutional problems or other problems identified
	347	+	by the federal or state court; and
	348	+	(2) issue notice of those rules, not later than the
	349	+	30th day after the date of the court ruling.
	350	+	(g) If the executive commissioner fails to adopt the rules
	351	+	and issue notice under Subsection (f), a person may petition for a
	352	+	writ of mandamus requiring the executive commissioner to adopt the
	353	+	rules and issue notice.
376	354		SECTION 4. Chapter 30, Civil Practice and Remedies Code, is
377	355		amended by adding Section 30.022 to read as follows:
378	356		Sec. 30.022. AWARD OF ATTORNEY'S FEES IN ACTIONS
379	357		CHALLENGING ABORTION LAWS. (a) Notwithstanding any other law, any
380	358		person, including an entity, attorney, or law firm, who seeks
381	359		declaratory or injunctive relief to prevent this state, a political
382		-	subdivision, any governmental entity or public official in this
383		-	~~state, or any person in this~~ state from enforcing any statute,
384		-	~~ordinance, rule, regulation, or~~ any other type of law that
385		-	~~regulates or restricts abortion or that~~ limits taxpayer funding for
386		-	~~individuals or entities that perform or~~ promote abortions, in any
387		-	~~state or federal court, or that~~ represents any litigant seeking
388		-	~~such relief in any state or federal~~ court, is jointly and severally
389		-	~~liable to pay the costs and~~ attorney's fees of the prevailing party.
	360	+	subdivision, or any governmental entity or public official in this
	361	+	state from enforcing any statute, ordinance, rule, regulation, or
	362	+	any other type of law that regulates or restricts abortion or that
	363	+	limits taxpayer funding for individuals or entities that perform or
	364	+	promote abortions, in any state or federal court, or that
	365	+	represents any litigant seeking such relief in any state or federal
	366	+	court, is jointly and severally liable to pay the costs and
	367	+	attorney's fees of the prevailing party.
390	368		(b) For purposes of this section, a party is considered a
391	369		prevailing party if a state or federal court:
392	370		(1) dismisses any claim or cause of action brought
393	371		against the party that seeks the declaratory or injunctive relief
394	372		described by Subsection (a), regardless of the reason for the
395	373		dismissal; or
396	374		(2) enters judgment in the party's favor on any such
397	375		claim or cause of action.
398	376		(c) Regardless of whether a prevailing party sought to
399	377		recover costs or attorney's fees in the underlying action, a
400	378		prevailing party under this section may bring a civil action to
401	379		recover costs and attorney's fees against a person, including an
402	380		entity, attorney, or law firm, that sought declaratory or
403	381		injunctive relief described by Subsection (a) not later than the
404	382		third anniversary of the date on which, as applicable:
405	383		(1) the dismissal or judgment described by Subsection
406	384		(b) becomes final on the conclusion of appellate review; or
407	385		(2) the time for seeking appellate review expires.
408	386		(d) It is not a defense to an action brought under
409	387		Subsection (c) that:
410	388		(1) a prevailing party under this section failed to
411	389		seek recovery of costs or attorney's fees in the underlying action;
	390	+	or
412	391		(2) the court in the underlying action declined to
413		-	recognize or enforce the requirements of this section; or
414		-	(3) the court in the underlying action held that any
415		-	provisions of this section are invalid, unconstitutional, or
416		-	preempted by federal law, notwithstanding the doctrines of issue or
417		-	claim preclusion.
	392	+	recognize or enforce the requirements of this section.
418	393		SECTION 5. Subchapter C, Chapter 311, Government Code, is
419	394		amended by adding Section 311.036 to read as follows:
420	395		Sec. 311.036. CONSTRUCTION OF ABORTION STATUTES. (a) A
421	396		statute that regulates or prohibits abortion may not be construed
422	397		to repeal any other statute that regulates or prohibits abortion,
423	398		either wholly or partly, unless the repealing statute explicitly
424	399		states that it is repealing the other statute.
425	400		(b) A statute may not be construed to restrict a political
426	401		subdivision from regulating or prohibiting abortion in a manner
427	402		that is at least as stringent as the laws of this state unless the
428	403		statute explicitly states that political subdivisions are
429	404		prohibited from regulating or prohibiting abortion in the manner
430	405		described by the statute.
431	406		(c) Every statute that regulates or prohibits abortion is
432	407		severable in each of its applications to every person and
433	408		circumstance. If any statute that regulates or prohibits abortion
434	409		is found by any court to be unconstitutional, either on its face or
435	410		as applied, then all applications of that statute that do not
436		-	violate the ~~United States Constitution and Texas Constitution~~ shall
	411	+	violate the constitutional rights of women seeking abortions shall
437	412		be severed from the unconstitutional applications and shall remain
438		-	enforceable, notwithstanding any other law, and the statute shall
439		-	be interpreted as if containing language limiting the statute's
440		-	application to the persons, group of persons, or circumstances for
441		-	which the statute's application will not violate the United States
442		-	Constitution and Texas Constitution.
443		-	SECTION 6. Section 171.005, Health and Safety Code, is
444		-	amended to read as follows:
445		-	Sec. 171.005. COMMISSION [DEPARTMENT] TO ENFORCE;
446		-	EXCEPTION. The commission [department] shall enforce this chapter
447		-	except for Subchapter H, which shall be enforced exclusively
448		-	through the private civil enforcement actions described by Section
449		-	171.208 and may not be enforced by the commission.
450		-	SECTION 7. Subchapter A, Chapter 171, Health and Safety
	413	+	enforceable, notwithstanding any other law.
	414	+	SECTION 6. Subchapter A, Chapter 171, Health and Safety
451	415		Code, is amended by adding Section 171.008 to read as follows:
452	416		Sec. 171.008. REQUIRED DOCUMENTATION. (a) If an abortion
453	417		is performed or induced on a pregnant woman because of a medical
454	418		emergency, the physician who performs or induces the abortion shall
455	419		execute a written document that certifies the abortion is necessary
456	420		due to a medical emergency and specifies the woman's medical
457	421		condition requiring the abortion.
458	422		(b) A physician shall:
459	423		(1) place the document described by Subsection (a) in
460	424		the pregnant woman's medical record; and
461	425		(2) maintain a copy of the document described by
462	426		Subsection (a) in the physician's practice records.
463	427		(c) A physician who performs or induces an abortion on a
464	428		pregnant woman shall:
465	429		(1) if the abortion is performed or induced to
466	430		preserve the health of the pregnant woman, execute a written
467	431		document that:
468	432		(A) specifies the medical condition the abortion
469	433		is asserted to address; and
470	434		(B) provides the medical rationale for the
471	435		physician's conclusion that the abortion is necessary to address
472	436		the medical condition; or
473	437		(2) for an abortion other than an abortion described
474	438		by Subdivision (1), specify in a written document that maternal
475	439		health is not a purpose of the abortion.
476	440		(d) The physician shall maintain a copy of a document
477	441		described by Subsection (c) in the physician's practice records.
478		-	SECTION 8. Section 171.012(a), Health and Safety Code, is
479		-	amended to read as follows:
	442	+	SECTION 7. Section 171.012, Health and Safety Code, is
	443	+	amended by amending Subsection (a) and adding Subsection (g) to
	444	+	read as follows:
480	445		(a) Consent to an abortion is voluntary and informed only
481	446		if:
482	447		(1) the physician who is to perform or induce the
483	448		abortion informs the pregnant woman on whom the abortion is to be
484	449		performed or induced of:
485	450		(A) the physician's name;
486	451		(B) the particular medical risks associated with
487	452		the particular abortion procedure to be employed, including, when
488	453		medically accurate:
489	454		(i) the risks of infection and hemorrhage;
490	455		(ii) the potential danger to a subsequent
491	456		pregnancy and of infertility; and
492	457		(iii) the possibility of increased risk of
493	458		breast cancer following an induced abortion and the natural
494	459		protective effect of a completed pregnancy in avoiding breast
495	460		cancer;
496	461		(C) the probable gestational age of the unborn
497	462		child at the time the abortion is to be performed or induced; and
498	463		(D) the medical risks associated with carrying
499	464		the child to term;
500	465		(2) the physician who is to perform or induce the
501	466		abortion or the physician's agent informs the pregnant woman that:
502	467		(A) medical assistance benefits may be available
503	468		for prenatal care, childbirth, and neonatal care;
504	469		(B) the father is liable for assistance in the
505	470		support of the child without regard to whether the father has
506	471		offered to pay for the abortion; and
507	472		(C) public and private agencies provide
508	473		pregnancy prevention counseling and medical referrals for
509	474		obtaining pregnancy prevention medications or devices, including
510	475		emergency contraception for victims of rape or incest;
511	476		(3) the physician who is to perform or induce the
512	477		abortion or the physician's agent:
513	478		(A) provides the pregnant woman with the printed
514	479		materials described by Section 171.014; and
515	480		(B) informs the pregnant woman that those
516	481		materials:
517	482		(i) have been provided by the commission
518	483		[Department of State Health Services];
519	484		(ii) are accessible on an Internet website
520	485		sponsored by the commission [department];
521	486		(iii) describe the unborn child and list
522	487		agencies that offer alternatives to abortion; and
523	488		(iv) include a list of agencies that offer
524	489		sonogram services at no cost to the pregnant woman;
525	490		(4) before any sedative or anesthesia is administered
526	491		to the pregnant woman and at least 24 hours before the abortion or
527	492		at least two hours before the abortion if the pregnant woman waives
528	493		this requirement by certifying that she currently lives 100 miles
529	494		or more from the nearest abortion provider that is a facility
530	495		licensed under Chapter 245 or a facility that performs more than 50
531	496		abortions in any 12-month period:
532	497		(A) the physician who is to perform or induce the
533	498		abortion or an agent of the physician who is also a sonographer
534	499		certified by a national registry of medical sonographers performs a
535	500		sonogram on the pregnant woman on whom the abortion is to be
536	501		performed or induced;
537	502		(B) the physician who is to perform or induce the
538	503		abortion displays the sonogram images in a quality consistent with
539	504		current medical practice in a manner that the pregnant woman may
540	505		view them;
541	506		(C) the physician who is to perform or induce the
542	507		abortion provides, in a manner understandable to a layperson, a
543	508		verbal explanation of the results of the sonogram images, including
544	509		a medical description of the dimensions of the embryo or fetus, the
545	510		presence of cardiac activity, and the presence of external members
546		-	and internal organs; and
	511	+	and internal organs; [and]
547	512		(D) the physician who is to perform or induce the
548	513		abortion or an agent of the physician who is also a sonographer
549	514		certified by a national registry of medical sonographers makes
550	515		audible the heart auscultation for the pregnant woman to hear, if
551	516		present, in a quality consistent with current medical practice and
552	517		provides, in a manner understandable to a layperson, a simultaneous
553		-	verbal explanation of the heart auscultation;
	518	+	verbal explanation of the heart auscultation; and
	519	+	(E) if a fetal heartbeat is detected under
	520	+	Section 171.203, the physician who is to perform or induce the
	521	+	abortion informs the woman in writing of the statistical
	522	+	probability of bringing the unborn child to term:
	523	+	(i) to the best of the physician's
	524	+	knowledge, based on the gestational age of the unborn child; or
	525	+	(ii) as provided by commission rule;
554	526		(5) before receiving a sonogram under Subdivision
555	527		(4)(A) and before the abortion is performed or induced and before
556	528		any sedative or anesthesia is administered, the pregnant woman
557	529		completes and certifies with her signature an election form that
558	530		states as follows:
559	531		"ABORTION AND SONOGRAM ELECTION
560	532		(1) THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY
561	533		SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN
562	534		PROVIDED AND EXPLAINED TO ME.
563	535		(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN
564	536		ABORTION.
565	537		(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR
566	538		TO RECEIVING AN ABORTION.
567	539		(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE
568	540		SONOGRAM IMAGES.
569	541		(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE
570	542		HEARTBEAT.
571	543		(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN
572	544		EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO
573	545		ONE OF THE FOLLOWING:
574	546		___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,
575	547		INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN
576	548		REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN
577	549		REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT
578	550		RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
579	551		___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE
580	552		WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY
581	553		CODE.
582	554		___ MY UNBORN CHILD [FETUS] HAS AN IRREVERSIBLE MEDICAL
583	555		CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC
584	556		PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.
585	557		(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND
586	558		WITHOUT COERCION.
587	559		(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE
588	560		NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER
589	561		245, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE
590	562		THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
591	563		I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR
592	564		MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED
593	565		UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS
594	566		IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS
595	567		AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION
596	568		PROCEDURE. MY PLACE OF RESIDENCE IS:__________.
597		-	_________________________________~~_______~~
	569	+	_________________________________
598	570		SIGNATURE DATE";
599	571		(6) before the abortion is performed or induced, the
600	572		physician who is to perform or induce the abortion receives a copy
601	573		of the signed, written certification required by Subdivision (5);
602	574		and
603	575		(7) the pregnant woman is provided the name of each
604	576		person who provides or explains the information required under this
605	577		subsection.
606		-	SECTION 9. Section 245.011(c), Health and Safety Code, is
	578	+	(g) The executive commissioner may adopt rules that specify
	579	+	the information required under Subsection (a)(4)(E) regarding the
	580	+	statistical probability of bringing an unborn child to term based
	581	+	on the gestational age of the child. The information in the rules
	582	+	must be based on available medical evidence.
	583	+	SECTION 8. Section 245.011(c), Health and Safety Code, is
607	584		amended to read as follows:
608	585		(c) The report must include:
609	586		(1) whether the abortion facility at which the
610	587		abortion is performed is licensed under this chapter;
611	588		(2) the patient's year of birth, race, marital status,
612	589		and state and county of residence;
613	590		(3) the type of abortion procedure;
614	591		(4) the date the abortion was performed;
615	592		(5) whether the patient survived the abortion, and if
616	593		the patient did not survive, the cause of death;
617	594		(6) the probable post-fertilization age of the unborn
618	595		child based on the best medical judgment of the attending physician
619	596		at the time of the procedure;
620	597		(7) the date, if known, of the patient's last menstrual
621	598		cycle;
622	599		(8) the number of previous live births of the patient;
623	600		[and]
624	601		(9) the number of previous induced abortions of the
625	602		patient;
626	603		(10) whether the abortion was performed or induced
627	604		because of a medical emergency and any medical condition of the
628		-	pregnant woman that required the abortion; and
629		-	(11) the information required under Sections
630		-	171.008(a) and (c).
	605	+	pregnant woman that required the abortion;
	606	+	(11) whether the physician made a determination of the
	607	+	presence of a fetal heartbeat in accordance with Section 171.203;
	608	+	and
	609	+	(12) whether the physician performed or induced the
	610	+	abortion under circumstances described by Section 171.205.
631	611		SECTION 10. Every provision in this Act and every
632	612		application of the provision in this Act are severable from each
633	613		other. If any provision or application of any provision in this Act
634	614		to any person, group of persons, or circumstance is held by a court
635	615		to be invalid, the invalidity does not affect the other provisions
636	616		or applications of this Act.
637	617		SECTION 11. The change in law made by this Act applies only
638	618		to an abortion performed or induced on or after the effective date
639	619		of this Act.
640	620		SECTION 12. This Act takes effect September 1, 2021.