Texas 2021 - 87th Regular

Texas House Bill HB4339 Compare Versions

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

Old	New	Differences
1	1	87R5610 KKR-F
2	2	By: Schaefer H.B. No. 4339
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to prohibiting discriminatory abortions; authorizing
8	8	disciplinary action; providing a civil remedy; creating a criminal
9	9	offense.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. This Act may be cited as the Preborn
12	12	Nondiscrimination Act.
13	13	SECTION 2. The legislature finds that:
14	14	(1) Texas has a compelling state interest in
15	15	protecting all Texans from discrimination based on sex, race, and
16	16	disability; and
17	17	(2) Texas enforces prohibitions against
18	18	discrimination based on sex, race, and disability in various areas,
19	19	including housing, employment, education, insurance, and health
20	20	program and service provision.
21	21	SECTION 3. Chapter 170, Health and Safety Code, is amended
22	22	by designating Sections 170.001 and 170.002 as Subchapter A and
23	23	adding a subchapter heading to read as follows:
24	24	SUBCHAPTER A. GENERAL PROVISIONS; POST-VIABILITY ABORTION
25	25	PROHIBITED
26	26	SECTION 4. Chapter 170, Health and Safety Code, is amended
27	27	by adding Subchapter B to read as follows:
28	28	SUBCHAPTER B. DISCRIMINATORY ABORTION PROHIBITED
29	29	Sec. 170.051. DEFINITION. In this subchapter, "disability"
30	30	means:
31	31	(1) a physical or mental impairment that would
32	32	substantially limit one or more of an individual's major life
33	33	activities;
34	34	(2) an assessment referencing an individual's
35	35	impairment described by Subdivision (1); or
36	36	(3) a physical disfigurement, scoliosis, dwarfism,
37	37	Down syndrome, albinism, amelia, or any other type of physical,
38	38	mental, or intellectual abnormality or disease.
39	39	Sec. 170.052. DISCRIMINATORY ABORTION. A person may not:
40	40	(1) knowingly perform, induce, or attempt to perform
41	41	or induce on a pregnant woman an abortion based on the race,
42	42	ethnicity, sex, or disability of the woman's preborn child,
43	43	including a probability of diagnosis that the child has a
44	44	disability; or
45	45	(2) use force or the threat of force to intentionally
46	46	injure or intimidate a person to coerce the performance,
47	47	inducement, or attempted performance or inducement of an abortion
48	48	based on the race, ethnicity, sex, or disability of the woman's
49	49	preborn child, including a probability of diagnosis that the child
50	50	has a disability.
51	51	Sec. 170.053. CRIMINAL PENALTY. (a) A person who violates
52	52	Section 170.052 commits an offense. An offense under this
53	53	subsection is a Class A misdemeanor.
54	54	(b) A woman on whom an abortion is performed, induced, or
55	55	attempted in violation of Section 170.052 may not be prosecuted for
56	56	a violation of that section or for conspiracy to commit a violation
57	57	of that section.
58	58	Sec. 170.054. LICENSE SUSPENSION OR REVOCATION. A
59	59	physician who violates Section 170.052 engages in unprofessional
60	60	conduct for which the physician's license may be suspended or
61	61	revoked under Chapter 164, Occupations Code.
62	62	Sec. 170.055. CIVIL REMEDIES. (a) A civil action may be
63	63	brought against a person who violates Section 170.052 by:
64	64	(1) the woman on whom an abortion was performed,
65	65	induced, or attempted in violation of Section 170.052;
66	66	(2) the father of the preborn child for an abortion
67	67	performed, induced, or attempted on a pregnant woman in violation
68	68	of Section 170.052, unless the woman's pregnancy resulted from the
69	69	father's criminal conduct; or
70	70	(3) a maternal grandparent of the preborn child for an
71	71	abortion performed, induced, or attempted in violation of Section
72	72	170.052 on a pregnant woman who was less than 18 years of age at the
73	73	time of the violation, unless the woman's pregnancy resulted from
74	74	the maternal grandparent's criminal conduct.
75	75	(b) A person who brings an action under this section may
76	76	obtain:
77	77	(1) injunctive relief;
78	78	(2) damages incurred by the person, including:
79	79	(A) actual damages for all psychological,
80	80	emotional, and physical injuries resulting from the violation of
81	81	Section 170.052;
82	82	(B) court costs; and
83	83	(C) reasonable attorney's fees; or
84	84	(3) both injunctive relief and damages.
85	85	(c) An action for damages or injunctive relief under this
86	86	section must be filed:
87	87	(1) in a district court in the county in which the
88	88	woman on whom an abortion was performed, induced, or attempted in
89	89	violation of Section 170.052 resides; and
90	90	(2) not later than the sixth anniversary of the date
91	91	the abortion was performed, induced, or attempted in violation of
92	92	Section 170.052.
93	93	(d) The damages and injunctive relief authorized by this
94	94	section are in addition to any other remedy available by law.
95	95	(e) A civil action under this section may not be brought
96	96	against a woman on whom an abortion is performed, induced, or
97	97	attempted in violation of Section 170.052.
98	98	SECTION 5. Section 171.002, Health and Safety Code, is
99	99	amended by adding Subdivision (3-a) to read as follows:
100	100	(3-a) "Preborn child" means an unborn child as defined
101	101	by Section 171.061.
102	102	SECTION 6. Section 171.012(a), Health and Safety Code, is
103	103	amended to read as follows:
104	104	(a) Consent to an abortion is voluntary and informed only
105	105	if:
106	106	(1) the physician who is to perform or induce the
107	107	abortion informs the pregnant woman on whom the abortion is to be
108	108	performed or induced of:
109	109	(A) the physician's name;
110	110	(B) the particular medical risks associated with
111	111	the particular abortion procedure to be employed, including, when
112	112	medically accurate:
113	113	(i) the risks of infection and hemorrhage;
114	114	(ii) the potential danger to a subsequent
115	115	pregnancy and of infertility; and
116	116	(iii) the possibility of increased risk of
117	117	breast cancer following an induced abortion and the natural
118	118	protective effect of a completed pregnancy in avoiding breast
119	119	cancer;
120	120	(C) the probable gestational age of the preborn
121	121	[unborn] child at the time the abortion is to be performed or
122	122	induced; [and]
123	123	(D) the medical risks associated with carrying
124	124	the preborn child to term; and
125	125	(E) the state law prohibiting abortion of a
126	126	preborn child solely on the basis of the preborn child's race,
127	127	ethnicity, sex, or disability as defined by Section 170.051,
128	128	including a probability of diagnosis that the child has a
129	129	disability;
130	130	(2) the physician who is to perform or induce the
131	131	abortion or the physician's agent informs the pregnant woman that:
132	132	(A) medical assistance benefits may be available
133	133	for prenatal care, childbirth, and neonatal care;
134	134	(B) the father is liable for assistance in the
135	135	support of the child without regard to whether the father has
136	136	offered to pay for the abortion; and
137	137	(C) public and private agencies provide
138	138	pregnancy prevention counseling and medical referrals for
139	139	obtaining pregnancy prevention medications or devices, including
140	140	emergency contraception for victims of rape or incest;
141	141	(3) the physician who is to perform or induce the
142	142	abortion or the physician's agent:
143	143	(A) provides the pregnant woman with the printed
144	144	materials described by Section 171.014; and
145	145	(B) informs the pregnant woman that those
146	146	materials:
147	147	(i) have been provided by the Health and
148	148	Human Services Commission [Department of State Health Services];
149	149	(ii) are accessible on an Internet website
150	150	sponsored by the commission [department];
151	151	(iii) describe the preborn [unborn] child
152	152	and list agencies that offer alternatives to abortion; and
153	153	(iv) include a list of agencies that offer
154	154	sonogram services at no cost to the pregnant woman;
155	155	(4) before any sedative or anesthesia is administered
156	156	to the pregnant woman and at least 24 hours before the abortion or
157	157	at least two hours before the abortion if the pregnant woman waives
158	158	this requirement by certifying that she currently lives 100 miles
159	159	or more from the nearest abortion provider that is a facility
160	160	licensed under Chapter 245 or a facility that performs more than 50
161	161	abortions in any 12-month period:
162	162	(A) the physician who is to perform or induce the
163	163	abortion or an agent of the physician who is also a sonographer
164	164	certified by a national registry of medical sonographers performs a
165	165	sonogram on the pregnant woman on whom the abortion is to be
166	166	performed or induced;
167	167	(B) the physician who is to perform or induce the
168	168	abortion displays the sonogram images in a quality consistent with
169	169	current medical practice in a manner that the pregnant woman may
170	170	view them;
171	171	(C) the physician who is to perform or induce the
172	172	abortion provides, in a manner understandable to a layperson, a
173	173	verbal explanation of the results of the sonogram images, including
174	174	a medical description of the dimensions of the embryo or fetus, the
175	175	presence of cardiac activity, and the presence of external members
176	176	and internal organs; and
177	177	(D) the physician who is to perform or induce the
178	178	abortion or an agent of the physician who is also a sonographer
179	179	certified by a national registry of medical sonographers makes
180	180	audible the heart auscultation for the pregnant woman to hear, if
181	181	present, in a quality consistent with current medical practice and
182	182	provides, in a manner understandable to a layperson, a simultaneous
183	183	verbal explanation of the heart auscultation;
184	184	(5) before receiving a sonogram under Subdivision
185	185	(4)(A) and before the abortion is performed or induced and before
186	186	any sedative or anesthesia is administered, the pregnant woman
187	187	completes and certifies with her signature an election form that
188	188	states as follows:
189	189	"ABORTION AND SONOGRAM ELECTION
190	190	(1) THE INFORMATION AND PRINTED MATERIALS
191	191	DESCRIBED BY SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH
192	192	AND SAFETY CODE, HAVE BEEN PROVIDED AND EXPLAINED TO
193	193	ME.
194	194	(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF
195	195	AN ABORTION.
196	196	(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM
197	197	PRIOR TO RECEIVING AN ABORTION.
198	198	(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW
199	199	THE SONOGRAM IMAGES.
200	200	(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR
201	201	THE HEARTBEAT.
202	202	(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO
203	203	HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I
204	204	CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
205	205	___ I AM PREGNANT AS A RESULT OF A SEXUAL
206	206	ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL
207	207	CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT
208	208	AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I
209	209	REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK
210	210	OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
211	211	___ I AM A MINOR AND OBTAINING AN ABORTION IN
212	212	ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER
213	213	CHAPTER 33, TEXAS FAMILY CODE.
214	214	___ MY FETUS HAS AN IRREVERSIBLE MEDICAL
215	215	CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE
216	216	DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL
217	217	FILE.
218	218	(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL
219	219	AND WITHOUT COERCION.
220	220	(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM
221	221	THE NEAREST ABORTION PROVIDER THAT IS A FACILITY
222	222	LICENSED UNDER CHAPTER 245, TEXAS HEALTH AND SAFETY
223	223	CODE, OR A FACILITY THAT PERFORMS MORE THAN 50
224	224	ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
225	225	I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100
226	226	MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT
227	227	IS A FACILITY LICENSED UNDER CHAPTER 245, TEXAS HEALTH
228	228	AND SAFETY CODE, OR A FACILITY IN WHICH [THAT PERFORMS]
229	229	MORE THAN 50 ABORTIONS ARE PERFORMED IN ANY 12-MONTH
230	230	PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS AFTER
231	231	THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE
232	232	ABORTION PROCEDURE. MY PLACE OF RESIDENCE
233	233	IS:__________.
234	234	________________________________________
235	235	SIGNATURE DATE";
236	236	(6) before the abortion is performed or induced, the
237	237	physician who is to perform or induce the abortion receives a copy
238	238	of the signed, written certification required by Subdivision (5);
239	239	and
240	240	(7) the pregnant woman is provided the name of each
241	241	person who provides or explains the information required under this
242	242	subsection.
243	243	SECTION 7. Section 171.014(a), Health and Safety Code, is
244	244	amended to read as follows:
245	245	(a) The department shall publish informational materials
246	246	that include:
247	247	(1) the information required to be provided under
248	248	Sections 171.012(a)(1)(B), [and] (D), and (E) and (a)(2)(A), (B),
249	249	and (C); and
250	250	(2) the materials required by Sections 171.015 and
251	251	171.016.
252	252	SECTION 8. Section 164.052(a), Occupations Code, is amended
253	253	to read as follows:
254	254	(a) A physician or an applicant for a license to practice
255	255	medicine commits a prohibited practice if that person:
256	256	(1) submits to the board a false or misleading
257	257	statement, document, or certificate in an application for a
258	258	license;
259	259	(2) presents to the board a license, certificate, or
260	260	diploma that was illegally or fraudulently obtained;
261	261	(3) commits fraud or deception in taking or passing an
262	262	examination;
263	263	(4) uses alcohol or drugs in an intemperate manner
264	264	that, in the board's opinion, could endanger a patient's life;
265	265	(5) commits unprofessional or dishonorable conduct
266	266	that is likely to deceive or defraud the public, as provided by
267	267	Section 164.053, or injure the public;
268	268	(6) uses an advertising statement that is false,
269	269	misleading, or deceptive;
270	270	(7) advertises professional superiority or the
271	271	performance of professional service in a superior manner if that
272	272	advertising is not readily subject to verification;
273	273	(8) purchases, sells, barters, or uses, or offers to
274	274	purchase, sell, barter, or use, a medical degree, license,
275	275	certificate, or diploma, or a transcript of a license, certificate,
276	276	or diploma in or incident to an application to the board for a
277	277	license to practice medicine;
278	278	(9) alters, with fraudulent intent, a medical license,
279	279	certificate, or diploma, or a transcript of a medical license,
280	280	certificate, or diploma;
281	281	(10) uses a medical license, certificate, or diploma,
282	282	or a transcript of a medical license, certificate, or diploma that
283	283	has been:
284	284	(A) fraudulently purchased or issued;
285	285	(B) counterfeited; or
286	286	(C) materially altered;
287	287	(11) impersonates or acts as proxy for another person
288	288	in an examination required by this subtitle for a medical license;
289	289	(12) engages in conduct that subverts or attempts to
290	290	subvert an examination process required by this subtitle for a
291	291	medical license;
292	292	(13) impersonates a physician or permits another to
293	293	use the person's license or certificate to practice medicine in
294	294	this state;
295	295	(14) directly or indirectly employs a person whose
296	296	license to practice medicine has been suspended, canceled, or
297	297	revoked;
298	298	(15) associates in the practice of medicine with a
299	299	person:
300	300	(A) whose license to practice medicine has been
301	301	suspended, canceled, or revoked; or
302	302	(B) who has been convicted of the unlawful
303	303	practice of medicine in this state or elsewhere;
304	304	(16) performs or procures a criminal abortion, aids or
305	305	abets in the procuring of a criminal abortion, attempts to perform
306	306	or procure a criminal abortion, or attempts to aid or abet the
307	307	performance or procurement of a criminal abortion;
308	308	(17) directly or indirectly aids or abets the practice
309	309	of medicine by a person, partnership, association, or corporation
310	310	that is not licensed to practice medicine by the board;
311	311	(18) performs an abortion on a woman who is pregnant
312	312	with a viable preborn [unborn] child, as defined by Section
313	313	171.002, Health and Safety Code, during the third trimester of the
314	314	pregnancy unless:
315	315	(A) the abortion is necessary to prevent the
316	316	death of the woman;
317	317	(B) the viable preborn [unborn] child has a
318	318	severe, irreversible brain impairment; or
319	319	(C) the woman is diagnosed with a significant
320	320	likelihood of suffering imminent severe, irreversible brain damage
321	321	or imminent severe, irreversible paralysis;
322	322	(19) performs an abortion on an unemancipated minor
323	323	without the written consent of the child's parent, managing
324	324	conservator, or legal guardian or without a court order, as
325	325	provided by Section 33.003 or 33.004, Family Code, unless the
326	326	abortion is necessary due to a medical emergency, as defined by
327	327	Section 171.002, Health and Safety Code;
328	328	(20) otherwise performs an abortion on an
329	329	unemancipated minor in violation of Chapter 33, Family Code;
330	330	(21) performs or induces or attempts to perform or
331	331	induce an abortion in violation of Subchapter C, F, or G, Chapter
332	332	171, Health and Safety Code; [or]
333	333	(22) in complying with the procedures outlined in
334	334	Sections 166.045 and 166.046, Health and Safety Code, wilfully
335	335	fails to make a reasonable effort to transfer a patient to a
336	336	physician who is willing to comply with a directive; or
337	337	(23) performs, induces, or attempts to perform or
338	338	induce an abortion or engages in other conduct in violation of
339	339	Section 170.052, Health and Safety Code.
340	340	SECTION 9. Section 164.055(b), Occupations Code, is amended
341	341	to read as follows:
342	342	(b) The sanctions provided by Subsection (a) are in addition
343	343	to any other grounds for refusal to admit persons to examination
344	344	under this subtitle or to issue a license or renew a license to
345	345	practice medicine under this subtitle. The criminal penalties
346	346	provided by Section 165.152 do not apply to a violation of Section
347	347	170.002 or 170.052, Health and Safety Code, or Subchapter C, F, or
348	348	G, Chapter 171, Health and Safety Code.
349	349	SECTION 10. Not later than December 1, 2021:
350	350	(1) the Health and Human Services Commission shall
351	351	update any forms and informational materials under Subchapter B,
352	352	Chapter 171, Health and Safety Code, as amended by this Act; and
353	353	(2) the executive commissioner of the Health and Human
354	354	Services Commission shall adopt any rules necessary to implement
355	355	Subchapter B, Chapter 171, Health and Safety Code, as amended by
356	356	this Act.
357	357	SECTION 11. The changes in law made by this Act to Chapters
358	358	170 and 171, Health and Safety Code, and Chapter 164, Occupations
359	359	Code, apply only to an abortion performed, induced, or attempted or
360	360	other conduct that occurred on or after January 1, 2022. An
361	361	abortion performed, induced, or attempted or other conduct that
362	362	occurred before that date is governed by the law in effect
363	363	immediately before the effective date of this Act, and that law is
364	364	continued in effect for that purpose.
365	365	SECTION 12. It is the intent of the legislature that every
366	366	provision, section, subsection, sentence, clause, phrase, or word
367	367	in this Act, and every application of the provisions in this Act to
368	368	each person or entity, are severable from each other. If any
369	369	application of any provision in this Act to any person, group of
370	370	persons, or circumstances is found by a court to be invalid for any
371	371	reason, the remaining applications of that provision to all other
372	372	persons and circumstances shall be severed and may not be affected.
373	373	SECTION 13. This Act takes effect September 1, 2021.