By: Perry, et al. S.B. No. 1647
A BILL TO BE ENTITLED
AN ACT
relating to information regarding perinatal palliative care,
regulation of abortion, and the availability of certain defenses to
prosecution for homicide and assault offenses; providing an
administrative penalty; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. LEGISLATIVE FINDINGS
SECTION 1.01. The legislature finds that:
(1) Texas has a compelling state interest in
protecting all Texans from discrimination based on sex, race, and
disability;
(2) Texas enforces prohibitions against
discrimination based on sex, race, and disability in various areas,
including housing, employment, education, insurance, and health
program and service provision; and
(3) Texas never repealed, either expressly or by
implication, the state statutes enacted before the ruling in Roe v.
Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion
unless the mother's life is in danger.
ARTICLE 2. PROVISIONS EFFECTIVE SEPTEMBER 1, 2021
SECTION 2.01. Chapter 161, Health and Safety Code, is
amended by adding Subchapter X to read as follows:
SUBCHAPTER X. PERINATAL PALLIATIVE CARE
Sec. 161.701. PURPOSE OF SUBCHAPTER. The purpose of this
subchapter is to ensure that a pregnant woman who receives a
diagnosis of a life-threatening disability of the woman's preborn
child is informed of the availability of perinatal palliative care.
Sec. 161.702. DEFINITION. In this subchapter, "perinatal
palliative care" means the provision of comprehensive, supportive
care to reduce the suffering of a pregnant woman, her preborn child,
and her family, from diagnosis of the preborn child's
life-threatening disability through the delivery and possible
death of the child as a result of the life-threatening disability.
The term includes medical, social, and mental health care,
including counseling and health care provided by maternal-fetal
medical specialists, obstetricians, neonatologists, anesthesia
specialists, specialty nurses, clergy, social workers, and other
individuals focused on alleviating fear and pain and ensuring the
pregnant woman, her preborn child, and her family experience a
supportive environment.
Sec. 161.703. PERINATAL PALLIATIVE CARE INFORMATIONAL
MATERIALS. (a) The commission shall develop perinatal palliative
care informational materials and post the materials on the
commission's Internet website. The materials must include:
(1) a description of the health care and other
services available through perinatal palliative care; and
(2) information about medical assistance benefits
that may be available for prenatal care, childbirth, and perinatal
palliative care.
(b) The commission shall develop, regularly update, and
publish a geographically indexed list of all perinatal palliative
care providers and programs in this state. The commission may
include perinatal palliative care providers and programs in other
states that provide care to residents of this state but may not
include an abortion provider, as defined by Section 171.002, or an
affiliate, as defined by Section 2272.001, Government Code, as
added by Chapter 501 (S.B. 22), Acts of the 86th Legislature,
Regular Session, 2019, of an abortion provider. The commission
shall post the list of perinatal palliative care providers and
programs, including contact information, on the commission's
Internet website and note the providers and programs that provide
services free of charge.
Sec. 161.704. PERINATAL PALLIATIVE CARE CERTIFICATION
FORM. The commission shall develop a form on which a pregnant woman
certifies that she has received the perinatal palliative care
informational materials and list of the perinatal palliative care
providers and programs described by Section 161.703.
Sec. 161.705. HEALTH CARE PROVIDER DUTIES ON DIAGNOSIS OF
PREBORN CHILD'S LIFE-THREATENING DISABILITY. A health care
provider who diagnoses a pregnant woman's preborn child as having a
life-threatening disability shall, at the time of the diagnosis:
(1) provide the pregnant woman with a written copy of:
(A) the perinatal palliative care informational
materials and list of the perinatal palliative care providers and
programs described by Section 161.703; and
(B) the perinatal palliative care certification
form described by Section 161.704; and
(2) obtain from the pregnant woman the signed
perinatal palliative care certification form and place the form in
the pregnant woman's medical records.
Sec. 161.706. EXCEPTION. A health care provider is not
required to provide the perinatal palliative care informational
materials or perinatal palliative care certification form under
this subchapter if the health care provider verifies the pregnant
woman's medical record contains a signed perinatal palliative care
certification form for that pregnancy as required under Section
161.705(2).
SECTION 2.02. Chapter 170, Health and Safety Code, is
amended by designating Sections 170.001 and 170.002 as Subchapter A
and adding a subchapter heading to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS; POST-VIABILITY ABORTION
PROHIBITED
SECTION 2.03. Section 170.001, Health and Safety Code, is
amended by adding Subdivision (2-a) to read as follows:
(2-a) "Preborn child" means an unborn child as defined
by Section 171.061.
SECTION 2.04. Section 170.002, Health and Safety Code, is
amended to read as follows:
Sec. 170.002. PROHIBITED ACTS; EXEMPTION. (a) Except as
provided by Subsection (b), a person may not intentionally or
knowingly perform or induce an abortion on a woman who is pregnant
with a preborn [viable unborn] child during the third trimester of
the pregnancy.
(b) Subsection (a) does not prohibit a person from
performing or inducing an abortion if at the time of the abortion
the person is a physician and concludes in good faith according to
the physician's best medical judgment that[:
[(1) the fetus is not a viable fetus and the pregnancy
is not in the third trimester;
[(2)] the abortion is necessary due to a medical
emergency, as defined by Section 171.002 [to prevent the death or a
substantial risk of serious impairment to the physical or mental
health of the woman; or
[(3) the fetus has a severe and irreversible
abnormality, identified by reliable diagnostic procedures].
(c) A physician who performs or induces an abortion that,
according to the physician's best medical judgment at the time of
the abortion, is to abort a preborn [viable unborn] child during the
third trimester of the pregnancy shall certify in writing to the
commission, on a form prescribed by the commission, the medical
indications supporting the physician's judgment that the abortion
was authorized by Subsection (b) [(b)(2) or (3). If the physician
certifies the abortion was authorized by Subsection (b)(3), the
physician shall certify in writing on the form the fetal
abnormality identified by the physician]. The certification must
be made not later than the 30th day after the date the abortion was
performed or induced.
SECTION 2.05. Chapter 170, Health and Safety Code, is
amended by adding Subchapter B to read as follows:
SUBCHAPTER B. PREBORN NONDISCRIMINATION ACT
Sec. 170.051. DEFINITION. In this subchapter, "disability"
means:
(1) a physical or mental impairment that would
substantially limit one or more of an individual's major life
activities;
(2) an assessment referencing an individual's
impairment described by Subdivision (1); or
(3) a physical disfigurement, scoliosis, dwarfism,
Down syndrome, albinism, amelia, or any other type of physical,
mental, or intellectual abnormality or disease.
Sec. 170.052. DISCRIMINATORY ABORTION PROHIBITED. A person
may not:
(1) knowingly perform or induce or attempt to perform
or induce on a pregnant woman an abortion based on the race,
ethnicity, sex, or disability of the woman's preborn child,
including a probability of diagnosis that the child has a
disability; or
(2) use force or the threat of force to intentionally
injure or intimidate a person to coerce the performance or
inducement or attempted performance or inducement of an abortion
based on the race, ethnicity, sex, or disability of the woman's
preborn child, including a probability of diagnosis that the child
has a disability.
Sec. 170.053. CRIMINAL PENALTY. (a) A person who violates
Section 170.052 commits an offense. An offense under this
subsection is a Class A misdemeanor.
(b) A woman on whom an abortion is performed or induced or
attempted to be performed or induced in violation of Section
170.052 may not be prosecuted for a violation of that section or for
conspiracy to commit a violation of that section.
Sec. 170.054. LICENSE SUSPENSION OR REVOCATION. A
physician who violates Section 170.052 engages in unprofessional
conduct for which the physician's license may be suspended or
revoked under Chapter 164, Occupations Code.
Sec. 170.055. CIVIL REMEDIES. (a) A civil action may be
brought against a person who violates Section 170.052 by:
(1) the woman on whom an abortion was performed or
induced or attempted to be performed or induced in violation of
Section 170.052;
(2) the father of the preborn child for an abortion
performed or induced or attempted to be performed or induced on a
pregnant woman in violation of Section 170.052, unless the woman's
pregnancy resulted from the father's criminal conduct; or
(3) a maternal grandparent of the preborn child for an
abortion performed or induced or attempted to be performed or
induced in violation of Section 170.052 on a pregnant woman who was
less than 18 years of age at the time of the violation, unless the
woman's pregnancy resulted from the maternal grandparent's criminal
conduct.
(b) A person who brings an action under this section may
obtain:
(1) injunctive relief;
(2) damages incurred by the person, including:
(A) actual damages for all psychological,
emotional, and physical injuries resulting from the violation of
Section 170.052;
(B) court costs; and
(C) reasonable attorney's fees; or
(3) both injunctive relief and damages.
(c) An action for damages or injunctive relief under this
section must be filed:
(1) in a district court in the county in which the
woman on whom an abortion was performed or induced or attempted to
be performed or induced in violation of Section 170.052 resides;
and
(2) not later than the sixth anniversary of the date
the abortion was performed or induced or attempted to be performed
or induced in violation of Section 170.052.
(d) The damages and injunctive relief authorized by this
section are in addition to any other remedy available by law.
(e) A civil action under this section may not be brought
against a woman on whom an abortion is performed or induced or
attempted to be performed or induced in violation of Section
170.052.
SECTION 2.06. Section 171.002, Health and Safety Code, is
amended by adding Subdivision (3-a) to read as follows:
(3-a) "Preborn child" means an unborn child as defined
by Section 171.061.
SECTION 2.07. 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.
(c) A physician who performs or induces an abortion on a
pregnant woman shall:
(1) if the abortion is performed or induced to
preserve the health of the pregnant woman, execute a written
document that:
(A) specifies the medical condition the abortion
is asserted to address; and
(B) provides the medical rationale for the
physician's conclusion that the abortion is necessary to address
the medical condition; or
(2) for an abortion other than an abortion described
by Subdivision (1), specify in a written document that maternal
health is not a purpose of the abortion.
(d) The physician shall maintain a copy of a document
described by Subsection (c) in the physician's practice records.
SECTION 2.08. Section 171.012, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsections (g) and
(h) to read as follows:
(a) Consent to an abortion is voluntary and informed only
if:
(1) the physician who is to perform or induce the
abortion informs the pregnant woman on whom the abortion is to be
performed or induced 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 preborn
[unborn] child at the time the abortion is to be performed or
induced; [and]
(D) the medical risks associated with carrying
the preborn child to term; and
(E) the state law prohibiting abortion of a
preborn child solely based on the preborn child's race, ethnicity,
sex, or disability, as defined by Section 170.051, including a
probability of diagnosis that the child has a disability;
(2) the physician who is to perform or induce 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 or induce 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 preborn [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 or induces
more than 50 abortions in any 12-month period:
(A) the physician who is to perform or induce 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 or induced;
(B) the physician who is to perform or induce 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 or induce 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 or induce 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;
(5) before receiving a sonogram under Subdivision
(4)(A) and before the abortion is performed or induced 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 PREBORN CHILD [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 OR INDUCES 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, TEXAS HEALTH
AND SAFETY CODE, OR A FACILITY THAT PERFORMS OR INDUCES
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 or induced, the
physician who is to perform or induce 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.
(g) If the pregnant woman's preborn child has been diagnosed
with a life-threatening disability, the physician who is to perform
the abortion shall, 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 in which more than 50
abortions are performed in any 12-month period:
(1) orally and in person, inform the pregnant woman of
the availability of perinatal palliative care, as that term is
defined by Section 161.702; and
(2) provide the pregnant woman with a written copy of:
(A) the perinatal palliative care informational
materials and list of the perinatal palliative care providers and
programs described by Section 161.703; and
(B) the perinatal palliative care certification
form described by Section 161.704.
(h) If a pregnant woman described by Subsection (g), after
receiving from the physician who is to perform or induce the
abortion the perinatal palliative care informational materials and
certification form described by that subsection in the manner
required by that subsection, chooses to have an abortion instead of
continuing the pregnancy in perinatal palliative care, the
physician may perform or induce the abortion only after:
(1) the pregnant woman signs the certification form;
and
(2) the physician places the signed certification form
in the pregnant woman's medical records.
SECTION 2.09. Section 171.0121, Health and Safety Code, is
amended to read as follows:
Sec. 171.0121. MEDICAL RECORD. (a) Before the abortion
begins, a copy of the signed, written certification received by the
physician under Section 171.012(a)(6) and, if applicable, under
Section 161.704 must be placed in the pregnant woman's medical
records.
(b) A copy of the signed, written certification required
under Sections 171.012(a)(5) and (6) and of any signed, written
certification required under Section 161.704 shall be retained by
the facility where the abortion is performed or induced until:
(1) the seventh anniversary of the date the
certification [it] is signed; or
(2) if the pregnant woman is a minor, the later of:
(A) the seventh anniversary of the date the
certification [it] is signed; or
(B) the woman's 21st birthday.
SECTION 2.10. Section 171.014(a), Health and Safety Code,
is amended to read as follows:
(a) The department shall publish informational materials
that include:
(1) the information required to be provided under
Sections 171.012(a)(1)(B), [and] (D), and (E) and (a)(2)(A), (B),
and (C); and
(2) the materials required by Sections 161.703,
171.015, and 171.016.
SECTION 2.11. The heading to Subchapter C, Chapter 171,
Health and Safety Code, is amended to read as follows:
SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS PROBABLE
GESTATIONAL AGE [POST-FERTILIZATION]
SECTION 2.12. Section 171.042, Health and Safety Code, is
amended by adding Subdivision (1-a) to read as follows:
(1-a) "Probable gestational age" means the duration of
a pregnancy measured by the number of weeks and days that have
elapsed from the first day of the pregnant woman's last menstrual
period out of an expected 40-week gestation.
SECTION 2.13. Sections 171.043, 171.044, and 171.045,
Health and Safety Code, are amended to read as follows:
Sec. 171.043. DETERMINATION OF PROBABLE GESTATIONAL
[POST-FERTILIZATION] AGE REQUIRED. Except as otherwise provided by
Section 171.046, a physician may not perform or induce or attempt to
perform or induce an abortion without, prior to the procedure:
(1) making a determination of the probable gestational
[post-fertilization] age of the preborn [unborn] child; or
(2) possessing and relying on a determination of the
probable gestational [post-fertilization] age of the preborn
[unborn] child made by another physician.
Sec. 171.044. ABORTION OF PREBORN [UNBORN] CHILD OF 20 OR
MORE WEEKS PROBABLE GESTATIONAL [POST-FERTILIZATION] AGE
PROHIBITED. Except as otherwise provided by Section 171.046, a
person may not perform or induce or attempt to perform or induce an
abortion on a woman if it has been determined, by the physician
performing, inducing, or attempting to perform or induce the
abortion or by another physician on whose determination that
physician relies, that the probable gestational
[post-fertilization] age of the preborn [unborn] child is 20 or
more weeks.
Sec. 171.045. METHOD OF ABORTION. (a) This section applies
only to an abortion authorized under Section 171.046(a)(1) or (2)
in which:
(1) the probable gestational [post-fertilization] age
of the preborn [unborn] child is 20 or more weeks; or
(2) the probable gestational [post-fertilization] age
of the preborn [unborn] child has not been determined but could
reasonably be 20 or more weeks.
(b) Except as otherwise provided by Section 171.046(a)(3),
a physician performing or inducing an abortion under Subsection (a)
shall terminate the pregnancy in the manner that, in the
physician's reasonable medical judgment, provides the best
opportunity for the preborn [unborn] child to survive.
SECTION 2.14. Section 171.046(a), Health and Safety Code,
is amended to read as follows:
(a) The prohibitions and requirements under Sections
171.043, 171.044, and 171.045(b) do not apply to an abortion
performed or induced if there exists a condition that, in the
physician's reasonable medical judgment, so complicates the
medical condition of the woman that, to avert the woman's death or a
serious risk of substantial and irreversible physical impairment of
a major bodily function, other than a psychological condition, it
necessitates, as applicable:
(1) the immediate abortion of her pregnancy without
the delay necessary to determine the probable gestational
[post-fertilization] age of the preborn [unborn] child;
(2) the abortion of her pregnancy even though the
probable gestational [post-fertilization] age of the preborn
[unborn] child is 20 or more weeks; or
(3) the use of a method of abortion other than a method
described by Section 171.045(b).
SECTION 2.15. Section 285.202(a), Health and Safety Code,
is amended to read as follows:
(a) In this section, "medical emergency" means[:
[(1)] a condition exists that, in a physician's good
faith clinical judgment, complicates the medical condition of the
pregnant woman and necessitates the immediate abortion of her
pregnancy to avert her death or to avoid a serious risk of
substantial impairment of a major bodily function[; or
[(2) the fetus has a severe fetal abnormality].
SECTION 2.16. Section 164.052(a), Occupations Code, is
amended to read as follows:
(a) A physician or an applicant for a license to practice
medicine commits a prohibited practice if that person:
(1) submits to the board a false or misleading
statement, document, or certificate in an application for a
license;
(2) presents to the board a license, certificate, or
diploma that was illegally or fraudulently obtained;
(3) commits fraud or deception in taking or passing an
examination;
(4) uses alcohol or drugs in an intemperate manner
that, in the board's opinion, could endanger a patient's life;
(5) commits unprofessional or dishonorable conduct
that is likely to deceive or defraud the public, as provided by
Section 164.053, or injure the public;
(6) uses an advertising statement that is false,
misleading, or deceptive;
(7) advertises professional superiority or the
performance of professional service in a superior manner if that
advertising is not readily subject to verification;
(8) purchases, sells, barters, or uses, or offers to
purchase, sell, barter, or use, a medical degree, license,
certificate, or diploma, or a transcript of a license, certificate,
or diploma in or incident to an application to the board for a
license to practice medicine;
(9) alters, with fraudulent intent, a medical license,
certificate, or diploma, or a transcript of a medical license,
certificate, or diploma;
(10) uses a medical license, certificate, or diploma,
or a transcript of a medical license, certificate, or diploma that
has been:
(A) fraudulently purchased or issued;
(B) counterfeited; or
(C) materially altered;
(11) impersonates or acts as proxy for another person
in an examination required by this subtitle for a medical license;
(12) engages in conduct that subverts or attempts to
subvert an examination process required by this subtitle for a
medical license;
(13) impersonates a physician or permits another to
use the person's license or certificate to practice medicine in
this state;
(14) directly or indirectly employs a person whose
license to practice medicine has been suspended, canceled, or
revoked;
(15) associates in the practice of medicine with a
person:
(A) whose license to practice medicine has been
suspended, canceled, or revoked; or
(B) who has been convicted of the unlawful
practice of medicine in this state or elsewhere;
(16) performs or procures a criminal abortion, aids or
abets in the procuring of a criminal abortion, attempts to perform
or procure a criminal abortion, or attempts to aid or abet the
performance or procurement of a criminal abortion;
(17) directly or indirectly aids or abets the practice
of medicine by a person, partnership, association, or corporation
that is not licensed to practice medicine by the board;
(18) performs or induces or attempts to perform or
induce an abortion on a woman who is pregnant with a preborn [viable
unborn] child during the third trimester of the pregnancy unless[:
[(A)] the abortion is necessary due to a medical
emergency, as defined by Section 171.002, Health and Safety Code
[to prevent the death of the woman;
[(B) the viable unborn child has a severe,
irreversible brain impairment; or
[(C) the woman is diagnosed with a significant
likelihood of suffering imminent severe, irreversible brain damage
or imminent severe, irreversible paralysis];
(19) performs or induces or attempts to perform or
induce an abortion on an unemancipated minor without the written
consent of the child's parent, managing conservator, or legal
guardian or without a court order, as provided by Section 33.003 or
33.004, Family Code, unless the abortion is necessary due to a
medical emergency, as defined by Section 171.002, Health and Safety
Code;
(20) otherwise performs or induces or attempts to
perform or induce an abortion on an unemancipated minor in
violation of Chapter 33, Family Code;
(21) performs or induces or attempts to perform or
induce an abortion in violation of Subchapter C, F, or G, Chapter
171, Health and Safety Code; [or]
(22) in complying with the procedures outlined in
Sections 166.045 and 166.046, Health and Safety Code, wilfully
fails to make a reasonable effort to transfer a patient to a
physician who is willing to comply with a directive; or
(23) performs or induces or attempts to perform or
induce an abortion or engages in other conduct in violation of
Section 170.052, Health and Safety Code.
SECTION 2.17. Section 164.055(b), Occupations Code, is
amended to read as follows:
(b) The sanctions provided by Subsection (a) are in addition
to any other grounds for refusal to admit persons to examination
under this subtitle or to issue a license or renew a license to
practice medicine under this subtitle. The criminal penalties
provided by Section 165.152 do not apply to a violation of Section
170.002 or 170.052, Health and Safety Code, or Subchapter C, F, or
G, Chapter 171, Health and Safety Code.
SECTION 2.18. The following provisions of the Health and
Safety Code are repealed:
(1) Section 170.001(3);
(2) Sections 171.042(1) and (2);
(3) Section 171.046(c); and
(4) Sections 285.202(a-1) and (a-2).
ARTICLE 3. PROVISIONS EFFECTIVE SEPTEMBER 1, 2023, OR EARLIER
SECTION 3.01. 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 an obstetrician of ordinary
judgment, learning, and skill would employ in like circumstances.
(7) "Unborn child" means a human fetus or embryo in any
stage of gestation from fertilization until birth.
Sec. 171.202. LEGISLATIVE FINDINGS. The legislature finds,
according to contemporary medical research, that:
(1) fetal heartbeat has become a key medical predictor
that an unborn child will reach live birth;
(2) cardiac activity begins at a biologically
identifiable moment in time, normally when the fetal heart is
formed in the gestational sac;
(3) Texas has compelling interests from the outset of
a woman's pregnancy in protecting the health of the woman and the
life of the unborn child; and
(4) to make an informed choice about whether to
continue her pregnancy, the pregnant woman has a compelling
interest in knowing the likelihood of her 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) For the purposes of determining the presence
of a fetal heartbeat under this section, "standard medical
practice" includes employing the appropriate means of detecting the
heartbeat based on the estimated gestational age of the unborn
child and the condition of the woman and her pregnancy.
(b) Except as provided by Section 171.205, a physician may
not knowingly 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.
(c) In making a determination under Subsection (b), the
physician must use a test that is:
(1) consistent with the physician's good faith and
reasonable understanding of standard medical practice; and
(2) appropriate for the estimated gestational age of
the unborn child and the condition of the pregnant woman and her
pregnancy.
(d) A physician making a determination under Subsection (b)
shall record in the pregnant woman's medical record:
(1) the estimated gestational age of the unborn child;
(2) the method used to estimate the gestational age;
and
(3) the test used for detecting a fetal heartbeat,
including the date, time, and results of the test.
Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH
DETECTABLE FETAL HEARTBEAT; EFFECT. (a) Except as provided by
Section 171.205, a physician may not knowingly perform or induce an
abortion on a pregnant woman if the physician detected a fetal
heartbeat for the unborn child as required by 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 as required by
Section 171.203 and did not detect a fetal heartbeat.
(c) This section does not affect:
(1) the provisions of this chapter that restrict or
regulate an abortion by a particular method or during a particular
stage of pregnancy; or
(2) any other provision of state law that regulates or
prohibits abortion.
Sec. 171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.
(a) Sections 171.203 and 171.204 do 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).
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:
(1) 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;
(2) wholly or partly repeal, either expressly or by
implication, any other statute that regulates or prohibits
abortion, including Chapter 6-1/2, Title 71, Revised Statutes; or
(3) restrict a political subdivision from regulating
or prohibiting abortion in a manner that is at least as stringent as
the laws of this state.
Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT. (a)
Notwithstanding Section 171.005 or any other law, the requirements
of this subchapter shall be enforced exclusively through the
private civil actions described in Section 171.208. No enforcement
of this subchapter, and no enforcement of Chapters 19 and 22, Penal
Code, in response to violations of this subchapter, may be taken or
threatened by this state, a political subdivision, a district or
county attorney, or an executive or administrative officer or
employee of this state or a political subdivision against any
person, except as provided in Section 171.208.
(b) Subsection (a) may not be construed to:
(1) legalize the conduct prohibited by this subchapter
or by Chapter 6-1/2, Title 71, Revised Statutes;
(2) limit in any way or affect the availability of a
remedy established by Section 171.208; or
(3) limit the enforceability of any other laws that
regulate or prohibit abortion.
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
ABETTING VIOLATION. (a) Any person, other than an officer or
employee of a state or local governmental entity in this state, may
bring a civil action against any person who:
(1) performs or induces an abortion in violation of
this chapter;
(2) knowingly engages in conduct that aids or abets
the performance or inducement of an abortion, including paying for
or reimbursing the costs of an abortion through insurance or
otherwise, if the abortion is performed or induced in violation of
this chapter, regardless of whether the person knew or should have
known that the abortion would be performed or induced in violation
of this chapter; or
(3) intends to engage in the conduct described by
Subdivision (1) or (2).
(b) If a claimant prevails in an action brought under this
section, the court shall award:
(1) injunctive relief sufficient to prevent the
defendant from violating this chapter or engaging in acts that aid
or abet violations of this chapter;
(2) statutory damages in an amount of not less than
$10,000 for each abortion that the defendant performed or induced
in violation of this chapter, and for each abortion performed or
induced in violation of this chapter that the defendant aided or
abetted; and
(3) costs and attorney's fees.
(c) Notwithstanding Subsection (b), a court may not award
relief under this section in response to a violation of Subsection
(a)(1) or (2) if the defendant demonstrates that the defendant
previously paid the full amount of statutory damages under
Subsections (b)(2) and (3) in a previous action for that particular
abortion performed or induced in violation of this chapter, or for
the particular conduct that aided or abetted an abortion performed
or induced in violation of this chapter.
(d) Notwithstanding Chapter 16, Civil Practice and Remedies
Code, or any other law, a person may bring an action under this
section not later than the sixth anniversary of the date the cause
of action accrues.
(e) Notwithstanding any other law, the following are not a
defense to an action brought under this section:
(1) ignorance or mistake of law;
(2) a defendant's belief that the requirements of this
chapter are unconstitutional or were unconstitutional;
(3) a defendant's reliance on any court decision that
has been overruled on appeal or by a subsequent court, even if that
court decision had not been overruled when the defendant engaged in
conduct that violates this chapter;
(4) a defendant's reliance on any state or federal
court decision that is not binding on the court in which the action
has been brought;
(5) non-mutual issue preclusion or non-mutual claim
preclusion;
(6) the consent of the unborn child's mother to the
abortion; or
(7) any claim that the enforcement of this chapter or
the imposition of civil liability against the defendant will
violate the constitutional rights of third parties, except as
provided by Section 171.209.
(f) It is an affirmative defense if:
(1) a person sued under Subsection (a)(2) reasonably
believed, after conducting a reasonable investigation, that the
physician performing or inducing the abortion had complied or would
comply with this chapter; or
(2) a person sued under Subsection (a)(3) reasonably
believed, after conducting a reasonable investigation, that the
physician performing or inducing the abortion will comply with this
chapter.
(f-1) The defendant has the burden of proving an affirmative
defense under Subsection (f)(1) or (2) by a preponderance of the
evidence.
(g) This section may not be construed to impose liability on
any speech or conduct protected by the First Amendment of the United
States Constitution, as made applicable to the states through the
United States Supreme Court's interpretation of the Fourteenth
Amendment of the United States Constitution, or by Section 8,
Article I, Texas Constitution.
(h) Notwithstanding any other law, this state, a state
official, or a district or county attorney may not intervene in an
action brought under this section. This subsection does not
prohibit a person described by this subsection from filing an
amicus curiae brief in the action.
(i) Notwithstanding any other law, a court may not award
costs or attorney's fees under the Texas Rules of Civil Procedure or
any other rule adopted by the supreme court under Section 22.004,
Government Code, to a defendant in an action brought under this
section.
Sec. 171.209. CIVIL LIABILITY: UNDUE BURDEN DEFENSE
LIMITATIONS. (a) A defendant against whom an action is brought
under Section 171.208 does not have standing to assert the rights
of women seeking an abortion as a defense to liability under that
section unless:
(1) the United States Supreme Court holds that the
courts of this state must confer standing on that defendant to
assert the third-party rights of women seeking an abortion in state
court as a matter of federal constitutional law; or
(2) the defendant has standing to assert the rights of
women seeking an abortion under the tests for third-party standing
established by the United States Supreme Court.
(b) A defendant in an action brought under Section 171.208
may assert an affirmative defense to liability under this section
if:
(1) the defendant has standing to assert the
third-party rights of a woman or a group of women seeking an
abortion in accordance with Subsection (a); and
(2) the defendant demonstrates that the relief sought
by the claimant will impose an undue burden on that woman or a group
of women seeking an abortion.
(c) A court may not find an undue burden under Subsection
(b) unless the defendant introduces evidence proving that:
(1) an award of relief will prevent a woman or a group
of women from obtaining an abortion; or
(2) an award of relief will place a substantial
obstacle in the path of a woman or a group of women who are seeking
an abortion.
(d) A defendant may not establish an undue burden under this
section by:
(1) merely demonstrating that an award of relief will
prevent women from obtaining support or assistance, financial or
otherwise, from others in their effort to obtain an abortion; or
(2) arguing or attempting to demonstrate that an award
of relief against other defendants or other potential defendants
will impose an undue burden on women seeking an abortion.
(e) The affirmative defense under Subsection (b) is not
available if the United States Supreme Court overrules Roe v. Wade,
410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833
(1992), regardless of whether the conduct on which the cause of
action is based under Section 171.208 occurred before the Supreme
Court overruled either of those decisions.
(f) Nothing in this section shall in any way limit or
preclude a defendant from asserting the defendant's personal
constitutional rights as a defense to liability under Section
171.208, and a court may not award relief under Section 171.208 if
the conduct for which the defendant has been sued was an exercise of
state or federal constitutional rights that personally belong to
the defendant.
Sec. 171.210. CIVIL LIABILITY: VENUE. (a) Notwithstanding
any other law, including Section 15.002, Civil Practice and
Remedies Code, a civil action brought under Section 171.208 shall
be brought in:
(1) the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) the county of residence for any one of the natural
person defendants at the time the cause of action accrued;
(3) the county of the principal office in this state of
any one of the defendants that is not a natural person; or
(4) the county of residence for the claimant if the
claimant is a natural person residing in this state.
(b) If a civil action is brought under Section 171.208 in
any one of the venues described by Subsection (a), the action may
not be transferred to a different venue without the written consent
of all parties.
Sec. 171.211. SOVEREIGN, GOVERNMENTAL, AND OFFICIAL
IMMUNITY PRESERVED. (a) This section prevails over any
conflicting law, including:
(1) the Uniform Declaratory Judgments Act; and
(2) Chapter 37, Civil Practice and Remedies Code.
(b) This state has sovereign immunity, a political
subdivision has governmental immunity, and each officer and
employee of this state or a political subdivision has official
immunity in any action, claim, or counterclaim or any type of legal
or equitable action that challenges the validity of any provision
or application of this chapter, on constitutional grounds or
otherwise.
(c) A provision of state law may not be construed to waive or
abrogate an immunity described by Subsection (b) unless it
expressly waives immunity under this section.
Sec. 171.212. SEVERABILITY. (a) Mindful of Leavitt v. Jane
L.
severability of a state statute regulating abortion the United
States Supreme Court held that an explicit statement of legislative
intent is controlling, it is the intent of the legislature that
every provision, section, subsection, sentence, clause, phrase, or
word in this chapter, and every application of the provisions in
this chapter, are severable from each other.
(b) If any application of any provision in this chapter to
any person, group of persons, or circumstances is found by a court
to be invalid or unconstitutional, the remaining applications of
that provision to all other persons and circumstances shall be
severed and may not be affected. All constitutionally valid
applications of this chapter shall be severed from any applications
that a court finds to be invalid, leaving the valid applications in
force, because it is the legislature's intent and priority that the
valid applications be allowed to stand alone. Even if a reviewing
court finds a provision of this chapter to impose an undue burden in
a large or substantial fraction of relevant cases, the applications
that do not present an undue burden shall be severed from the
remaining applications and shall remain in force, and shall be
treated as if the legislature had enacted a statute limited to the
persons, group of persons, or circumstances for which the statute's
application does not present an undue burden.
(b-1) If any court declares or finds a provision of this
chapter facially unconstitutional, when discrete applications of
that provision can be enforced against a person, group of persons,
or circumstances without violating the United States Constitution
and Texas Constitution, those applications shall be severed from
all remaining applications of the provision, and the provision
shall be interpreted as if the legislature had enacted a provision
limited to the persons, group of persons, or circumstances for
which the provision's application will not violate the United
States Constitution and Texas Constitution.
(c) The legislature further declares that it would have
enacted this chapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this chapter, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this chapter, were to be declared
unconstitutional or to represent an undue burden.
(d) If any provision of this chapter is found by any court to
be unconstitutionally vague, then the applications of that
provision that do not present constitutional vagueness problems
shall be severed and remain in force.
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (b-1), (c), and (d) on the
ground that severance would rewrite the statute or involve the
court in legislative or lawmaking activity. A court that declines
to enforce or enjoins a state official from enforcing a statutory
provision does not rewrite a statute, as the statute continues to
contain the same words as before the court's decision. A judicial
injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement that may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
SECTION 3.02. Chapter 30, Civil Practice and Remedies Code,
is amended by adding Section 30.022 to read as follows:
Sec. 30.022. AWARD OF ATTORNEY'S FEES IN ACTIONS
CHALLENGING ABORTION LAWS. (a) Notwithstanding any other law, any
person, including an entity, attorney, or law firm, who seeks
declaratory or injunctive relief to prevent this state, a political
subdivision, any governmental entity or public official in this
state, or any person in this state, from enforcing any statute,
ordinance, rule, regulation, or any other type of law that
regulates or restricts abortion or that limits taxpayer funding for
individuals or entities that perform or promote abortions, in any
state or federal court, or that represents any litigant seeking
such relief in any state or federal court, is jointly and severally
liable to pay the costs and attorney's fees of the prevailing party.
(b) For purposes of this section, a party is considered a
prevailing party if a state or federal court:
(1) dismisses any claim or cause of action brought
against the party that seeks the declaratory or injunctive relief
described by Subsection (a), regardless of the reason for the
dismissal; or
(2) enters judgment in the party's favor on any such
claim or cause of action.
(c) Regardless of whether a prevailing party sought to
recover costs or attorney's fees in the underlying action, a
prevailing party under this section may bring a civil action to
recover costs and attorney's fees against a person, including an
entity, attorney, or law firm, that sought declaratory or
injunctive relief described by Subsection (a) not later than the
third anniversary of the date on which, as applicable:
(1) the dismissal or judgment described by Subsection
(b) becomes final on the conclusion of appellate review; or
(2) the time for seeking appellate review expires.
(d) It is not a defense to an action brought under
Subsection (c) that:
(1) a prevailing party under this section failed to
seek recovery of costs or attorney's fees in the underlying action;
(2) the court in the underlying action declined to
recognize or enforce the requirements of this section; or
(3) the court in the underlying action held that any
provisions of this section are invalid, unconstitutional, or
preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.
SECTION 3.03. Subchapter C, Chapter 311, Government Code,
is amended by adding Section 311.036 to read as follows:
Sec. 311.036. CONSTRUCTION OF ABORTION STATUTES. (a) A
statute that regulates or prohibits abortion may not be construed
to repeal any other statute that regulates or prohibits abortion,
either wholly or partly, unless the repealing statute explicitly
states that it is repealing the other statute.
(b) A statute may not be construed to restrict a political
subdivision from regulating or prohibiting abortion in a manner
that is at least as stringent as the laws of this state unless the
statute explicitly states that political subdivisions are
prohibited from regulating or prohibiting abortion in the manner
described by the statute.
(c) Every statute that regulates or prohibits abortion is
severable in each of its applications to every person and
circumstance. If any statute that regulates or prohibits abortion
is found by any court to be unconstitutional, either on its face or
as applied, then all applications of that statute that do not
violate the United States Constitution and Texas Constitution shall
be severed from the unconstitutional applications and shall remain
enforceable, notwithstanding any other law, and the statute shall
be interpreted as if containing language limiting the statute's
application to the persons, group of persons, or circumstances for
which the statute's application will not violate the United States
Constitution and Texas Constitution.
SECTION 3.04. Section 171.005, Health and Safety Code, is
amended to read as follows:
Sec. 171.005. COMMISSION [DEPARTMENT] TO ENFORCE;
EXCEPTION. The commission [department] shall enforce this chapter
except for Subchapter H, which shall be enforced exclusively
through the private civil enforcement actions described by Section
171.208 and may not be enforced by the commission.
SECTION 3.05. 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.
(c) A physician who performs or induces an abortion on a
pregnant woman shall:
(1) if the abortion is performed or induced to
preserve the health of the pregnant woman, execute a written
document that:
(A) specifies the medical condition the abortion
is asserted to address; and
(B) provides the medical rationale for the
physician's conclusion that the abortion is necessary to address
the medical condition; or
(2) for an abortion other than an abortion described
by Subdivision (1), specify in a written document that maternal
health is not a purpose of the abortion.
(d) The physician shall maintain a copy of a document
described by Subsection (c) in the physician's practice records.
SECTION 3.06. Section 171.012(a), Health and Safety Code,
is amended to read as follows:
(a) Consent to an abortion is voluntary and informed only
if:
(1) the physician who is to perform or induce the
abortion informs the pregnant woman on whom the abortion is to be
performed or induced 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 or induced; and
(D) the medical risks associated with carrying
the child to term;
(2) the physician who is to perform or induce 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 or induce 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 or induce 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 or induced;
(B) the physician who is to perform or induce 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 or induce 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 or induce 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;
(5) before receiving a sonogram under Subdivision
(4)(A) and before the abortion is performed or induced 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 UNBORN CHILD [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 OR INDUCES 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, TEXAS HEALTH
AND SAFETY CODE, OR A FACILITY THAT PERFORMS OR INDUCES
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 or induced, the
physician who is to perform or induce 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.
SECTION 3.07. 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; and
(11) the information required under Sections
171.008(a) and (c).
ARTICLE 4. PROVISIONS EFFECTIVE SEPTEMBER 1, 2025, OR EARLIER
SECTION 4.01. Chapter 170, Health and Safety Code, is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. PROHIBITION OF ABORTION
Sec. 170.101. ABORTION PROHIBITED. Notwithstanding any
other law, a person may not perform, induce, or attempt to perform
or induce an abortion unless the abortion is performed, induced, or
attempted to be performed or induced by a physician because of a
medical emergency as defined by Section 171.002.
Sec. 170.102. CIVIL REMEDY. (a) A civil action may be
brought against a person who violated Section 170.101 by:
(1) the woman on whom an abortion was performed,
induced, or attempted in violation of Section 170.101;
(2) the father of the preborn child for an abortion
performed, induced, or attempted on a pregnant woman in violation
of Section 170.101, unless the woman's pregnancy resulted from the
father's criminal conduct; or
(3) a maternal grandparent of the preborn child for an
abortion performed, induced, or attempted in violation of Section
170.101 on a pregnant woman who was less than 18 years of age at the
time of the violation, unless the woman's pregnancy resulted from
the maternal grandparent's criminal conduct.
(b) A person who brings an action under this section may
obtain:
(1) injunctive relief;
(2) damages incurred by the person, including:
(A) actual damages for all psychological,
emotional, and physical injuries resulting from the violation of
Section 170.101;
(B) court costs; and
(C) reasonable attorney's fees; or
(3) both injunctive relief and damages.
(c) An action for damages or injunctive relief under this
section must be filed:
(1) in a district court in the county in which the
woman on whom an abortion was performed, induced, or attempted in
violation of Section 170.101 resides; and
(2) not later than the sixth anniversary of the date
the abortion was performed, induced, or attempted in violation of
Section 170.101.
(d) The damages and injunctive relief authorized by this
section are in addition to any other remedy available by law.
(e) A civil action under this section may not be brought
against a woman on whom an abortion is performed, induced, or
attempted in violation of Section 170.101.
Sec. 170.103. REVOCATION OR SUSPENSION OF LICENSE. A
physician who violates Section 170.101 engages in unprofessional
conduct for which the physician's license may be suspended or
revoked under Chapter 164, Occupations Code.
SECTION 4.02. Section 19.06, Penal Code, is amended to read
as follows:
Sec. 19.06. APPLICABILITY TO CERTAIN CONDUCT.
Notwithstanding any other law, this [This] chapter applies [does
not apply] to the death of a preborn [an unborn] child unless [if]
the conduct charged is:
(1) conduct committed by the mother of the preborn
[unborn] child; or
(2) an abortion performed, induced, or attempted to be
performed or induced by a physician because of a medical emergency
as defined by Section 171.002, Health and Safety Code [a lawful
medical procedure performed by a physician or other licensed health
care provider with the requisite consent, if the death of the unborn
child was the intended result of the procedure;
[(3) a lawful medical procedure performed by a
physician or other licensed health care provider with the requisite
consent as part of an assisted reproduction as defined by Section
160.102, Family Code; or
[(4) the dispensation of a drug in accordance with law
or administration of a drug prescribed in accordance with law].
SECTION 4.03. Section 22.12, Penal Code, is amended to read
as follows:
Sec. 22.12. APPLICABILITY TO CERTAIN CONDUCT.
Notwithstanding any other law, this [This] chapter applies [does
not apply] to conduct charged as having been committed against an
individual who is a preborn [an unborn] child unless [if] the
conduct is:
(1) committed by the mother of the preborn [unborn]
child; or
(2) an abortion performed, induced, or attempted to be
performed or induced by a physician because of a medical emergency
as defined by Section 171.002, Health and Safety Code [a lawful
medical procedure performed by a physician or other health care
provider with the requisite consent;
[(3) a lawful medical procedure performed by a
physician or other licensed health care provider with the requisite
consent as part of an assisted reproduction as defined by Section
160.102, Family Code; or
[(4) the dispensation of a drug in accordance with law
or administration of a drug prescribed in accordance with law].
SECTION 4.04. The following provisions are repealed:
(1) Section 33.002(b), Family Code; and
(2) Section 171.063(b), Health and Safety Code.
SECTION 4.05. (a) Subchapter C, Chapter 170, Health and
Safety Code, as added by this article, and Sections 19.06 and 22.12,
Penal Code, as amended by this article, shall be construed, as a
matter of state law, to be enforceable to the maximum possible
extent consistent with but not further than federal constitutional
requirements, even if that construction is not readily apparent, as
such constructions are authorized only to the extent necessary to
save the subchapter from judicial invalidation. Judicial
reformation of statutory language is explicitly authorized only to
the extent necessary to save the statutory provision from
invalidity.
(b) If any court determines that a provision described by
Subsection (a) of this section is unconstitutionally vague, the
court shall interpret the provision, as a matter of state law, to
avoid the vagueness problem and shall enforce the provision to the
maximum possible extent. If a federal court finds any provision
described by Subsection (a) of this section or its application to
any person, group of persons, or circumstances to be
unconstitutionally vague and declines to impose the saving
construction described by this section, the Texas Supreme Court
shall provide an authoritative construction of the objectionable
statutory provisions that avoids the constitutional problems while
enforcing the statute's restrictions to the maximum possible extent
and shall agree to answer any question certified from a federal
appellate court regarding the statute.
(c) An executive or administrative state official may not
decline to enforce a provision described by Subsection (a) of this
section, or adopt a construction of that provision or this section
in a way that narrows its applicability, based on the official's own
beliefs concerning the requirements of the state or federal
constitution, unless the official is enjoined by a state or federal
court from enforcing that provision.
(d) Sections 19.06 and 22.12, Penal Code, as amended by this
article, may not be construed to authorize the prosecution of or a
cause of action to be brought against a woman on whom an abortion is
performed, induced, or attempted to be performed or induced in
violation of Section 170.101, Health and Safety Code, as added by
this article.
ARTICLE 5. TRANSITIONS, SEVERABILITY, PREEMPTION,
CONSTITUTIONALITY, AND EFFECTIVE DATE
SECTION 5.01. Not later than December 1, 2021:
(1) the Health and Human Services Commission shall:
(A) develop the perinatal palliative care
informational materials, list of perinatal palliative care
providers and programs, and perinatal palliative care
certification form required by Subchapter X, Chapter 161, Health
and Safety Code, as added by this Act; and
(B) update any forms and informational materials
under Subchapter B, Chapter 171, Health and Safety Code, as amended
by this Act; and
(2) the executive commissioner of the Health and Human
Services Commission shall adopt any rules necessary to implement
Subchapter X, Chapter 161, Health and Safety Code, as added by this
Act, and Subchapter B, Chapter 171, Health and Safety Code, as
amended by this Act.
SECTION 5.02. (a) Subchapter X, Chapter 161, Health and
Safety Code, as added by this Act, applies only to a diagnosis of a
life-threatening disability of a pregnant woman's preborn child
made on or after January 1, 2022.
(b) Subchapter B, Chapter 170, Health and Safety Code, as
added by this Act, Subchapters B and C, Chapter 171, Health and
Safety Code, as amended by this Act, and Chapter 164, Occupations
Code, as amended by this Act, apply only to an abortion performed,
induced, or attempted to be performed or induced or other conduct
that occurred on or after January 1, 2022. An abortion performed,
induced, or attempted to be performed or induced or other conduct
that occurred before that date is governed by the law in effect
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
(c) Subchapter C, Chapter 170, Health and Safety Code, as
added by this Act, applies only to an abortion that is performed,
induced, or attempted to be performed or induced on or after the
effective date of Article 4 of this Act.
(d) Subchapter H, Chapter 171, Health and Safety Code, as
added by this Act, applies only to an abortion performed, induced,
or attempted to be performed or induced on or after the effective
date of Article 3 of this Act.
(e) Sections 19.06 and 22.12, Penal Code, as amended by this
Act, apply only to conduct that occurs on or after the effective
date of Article 4 of this Act. Conduct that occurs before that date
is governed by the law in effect on the date the conduct occurred,
and that law is continued in effect for that purpose.
(f) Sections 19.06 and 22.12, Penal Code, as amended by this
Act, apply only to an offense committed on or after the effective
date of Article 4 of this Act. An offense committed before that
date is governed by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this subsection, an offense is committed
before the effective date of Article 4 of this Act if any element of
the offense occurs before that date.
SECTION 5.03. (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 application 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.
(c) The legislature intends that each provision of this Act
as applicable to each individual woman is severable from each other
provision of this Act. In the unexpected event that a court finds
the application of any provision of this Act to impose an
impermissible undue burden on any pregnant woman or group of
pregnant women, the application of the provision to those women is
severed from the application of the remaining provisions of this
Act that do not impose an undue burden, and those remaining
applications remain in force and unaffected, consistent with
Section 5.02 of this article.
SECTION 5.04. (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 5.05. The Health and Human Services Commission is
required to implement a provision of this Act only if the
legislature appropriates money to the commission specifically for
that purpose. If the legislature does not appropriate money
specifically for that purpose, the commission may, but is not
required to, implement a provision of this Act using other
appropriations that are available for that purpose.
SECTION 5.06. (a) Except as otherwise provided by this
section, this Act takes effect September 1, 2021.
(b) Article 3 of this Act takes effect the earlier of:
(1) the 91st day after the date the attorney general
submits a report required by Section 402.003, Government Code, that
states a court of competent jurisdiction has held the provisions in
Article 3 of this Act to be constitutional; or
(2) September 1, 2023.
(c) Article 4 of this Act takes effect the earlier of:
(1) to the extent permitted, on the 30th day after:
(A) the issuance of a United States Supreme Court
judgment in a decision overruling, wholly or partly, Roe v. Wade,
410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505
U.S. 833 (1992), thereby allowing the states of the United States to
prohibit abortion;
(B) the issuance of any other United States
Supreme Court judgment in a decision that recognizes, wholly or
partly, the authority of the states to prohibit abortion; or
(C) adoption of an amendment to the United States
Constitution that, wholly or partly, restores to the states the
authority to prohibit abortion;
(2) the 91st day after the date the attorney general
submits a report required by Section 402.003, Government Code, that
states a court of competent jurisdiction has held the provisions in
Article 4 of this Act to be constitutional; or
(3) September 1, 2025.