By: Lucio, et al. S.B. No. 394
(Klick, Noble, Oliverson, Bonnen, Frank, et al.)
A BILL TO BE ENTITLED
AN ACT
relating to abortion complication reporting and the regulation of
drug-induced abortion procedures, providers, and facilities;
creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) this state has an interest to protect the health
and welfare of every woman considering a drug-induced abortion;
(2) the use of Mifeprex or mifepristone presents
significant medical complications including, but not limited to,
uterine hemorrhage, viral infections, abdominal pain, cramping,
vomiting, headache, fatigue, and pelvic inflammatory disease; and
(3) the risk of failure rate and complications
increases with advancing gestational age.
SECTION 2. Sections 171.006(a) and (b), Health and Safety
Code, as added by Chapter 4 (H.B. 13), Acts of the 85th Legislature,
1st Called Session, 2017, are amended to read as follows:
(a) In this section, "abortion complication" or "adverse
event" means any harmful event or adverse outcome with respect to a
patient related to an abortion that is performed or induced on the
patient and that is diagnosed or treated by a health care
practitioner or at a health care facility and includes:
(1) shock;
(2) uterine perforation;
(3) cervical laceration;
(4) hemorrhage;
(5) aspiration or allergic response;
(6) infection;
(7) sepsis;
(8) death of the patient;
(9) incomplete abortion;
(10) damage to the uterus; [or]
(11) an infant born alive after the abortion;
(12) blood clots resulting in pulmonary embolism or
deep vein thrombosis;
(13) failure to actually terminate the pregnancy;
(14) pelvic inflammatory disease;
(15) endometritis;
(16) missed ectopic pregnancy;
(17) cardiac arrest;
(18) respiratory arrest;
(19) renal failure;
(20) metabolic disorder;
(21) embolism;
(22) coma;
(23) placenta previa in subsequent pregnancies;
(24) preterm delivery in subsequent pregnancies;
(25) fluid accumulation in the abdomen;
(26) hemolytic reaction resulting from the
administration of ABO-incompatible blood or blood products;
(27) adverse reactions to anesthesia or other drugs;
or
(28) any other adverse event as defined by the United
States Food and Drug Administration's criteria provided by the
MedWatch Reporting System.
(b) The reporting requirements of this section apply only
to:
(1) a physician who:
(A) performs or induces at an abortion facility
an abortion that results in an abortion complication diagnosed or
treated by that physician; or
(B) diagnoses or treats [at an abortion facility]
an abortion complication that is the result of an abortion
performed or induced by another physician [at the facility]; or
(2) a health care facility that is a hospital,
abortion facility, freestanding emergency medical care facility,
or health care facility that provides emergency medical care, as
defined by Section 773.003.
SECTION 3. Section 171.061, Health and Safety Code, is
amended by amending Subdivisions (2) and (5) and adding
Subdivisions (2-a) and (8-a) to read as follows:
(2) "Abortion-inducing drug" means a drug, a medicine,
or any other substance, including a regimen of two or more drugs,
medicines, or substances, prescribed, dispensed, or administered
with the intent of terminating a clinically diagnosable pregnancy
of a woman and with knowledge that the termination will, with
reasonable likelihood, cause the death of the woman's unborn child.
The term includes off-label use of drugs, medicines, or other
substances known to have abortion-inducing properties that are
prescribed, dispensed, or administered with the intent of causing
an abortion, including the Mifeprex regimen, misoprostol
(Cytotec), and methotrexate. The term does not include a drug,
medicine, or other substance that may be known to cause an abortion
but is prescribed, dispensed, or administered for other medical
reasons.
(2-a) "Adverse event" or "abortion complication"
means any harmful event or adverse outcome with respect to a patient
related to an abortion, including the abortion complications listed
in Section 171.006, as added by Chapter 4 (H.B. 13), Acts of the
85th Legislature, 1st Called Session, 2017.
(5) "Medical abortion" means the administration or use
of an abortion-inducing drug to induce an abortion, and may also be
referred to as a "medication abortion," a "chemical abortion," a
"drug-induced abortion," "RU-486," or the "Mifeprex regimen".
(8-a) "Provide" means, when used regarding
abortion-inducing drugs, any act of giving, selling, dispensing,
administering, transferring possession, or otherwise providing or
prescribing an abortion-inducing drug.
SECTION 4. Section 171.063, Health and Safety Code, is
amended by amending Subsections (a), (c), and (e) and adding
Subsection (b-1) to read as follows:
(a) A person may not knowingly [give, sell, dispense,
administer,] provide[, or prescribe] an abortion-inducing drug to a
pregnant woman for the purpose of inducing an abortion in the
pregnant woman or enabling another person to induce an abortion in
the pregnant woman unless:
(1) the person who [gives, sells, dispenses,
administers,] provides[, or prescribes] the abortion-inducing drug
is a physician; and
(2) [except as otherwise provided by Subsection (b),]
the provision[, prescription, or administration] of the
abortion-inducing drug satisfies the protocol [tested and]
authorized by this subchapter [the United States Food and Drug
Administration as outlined in the final printed label of the
abortion-inducing drug].
(b-1) A manufacturer, supplier, physician, or any other
person may not provide to a patient any abortion-inducing drug by
courier, delivery, or mail service.
(c) Before the physician [gives, sells, dispenses,
administers,] provides[, or prescribes] an abortion-inducing drug,
the physician must:
(1) examine the pregnant woman in person;
(2) independently verify that a pregnancy exists;
(3) [and] document, in the woman's medical record, the
gestational age and intrauterine location of the pregnancy to
determine if an ectopic pregnancy exists;
(4) determine the pregnant woman's blood type, and for
a woman who is Rh negative, offer to administer Rh immunoglobulin
(RhoGAM) at the time the abortion is performed or induced to prevent
Rh incompatibility, complications, or miscarriage in future
pregnancies;
(5) document whether the pregnant woman received
treatment for Rh negativity, as diagnosed by the most accurate
standard of medical care; and
(6) ensure the physician does not provide an
abortion-inducing drug for a pregnant woman whose pregnancy is more
than 49 days of gestational age.
(e) A [The] physician who [gives, sells, dispenses,
administers,] provides[, or prescribes] the abortion-inducing
drug, or the physician's agent, must schedule a follow-up visit for
the woman to occur not later [more] than the 14th day [14 days]
after the earliest date on which the abortion is performed or
induced or the drug is administered [administration] or used [use
of the drug]. At the follow-up visit, the physician must:
(1) confirm that the woman's pregnancy is completely
terminated; and
(2) assess any continued blood loss [the degree of
bleeding].
SECTION 5. Subchapter D, Chapter 171, Health and Safety
Code, is amended by adding Sections 171.0631, 171.0632, 171.065,
and 171.066 to read as follows:
Sec. 171.0631. VOLUNTARY AND INFORMED CONSENT REQUIRED. A
person may not provide an abortion-inducing drug to a pregnant
woman without satisfying the applicable informed consent
requirements of Subchapter B.
Sec. 171.0632. REPORTING REQUIREMENTS. A physician who
provides an abortion-inducing drug must comply with the applicable
physician reporting requirements under Section 245.011.
Sec. 171.065. CRIMINAL OFFENSE. (a) A person who
intentionally, knowingly, or recklessly violates this subchapter
commits an offense. An offense under this subsection is a state
jail felony.
(b) A pregnant woman on whom a drug-induced abortion is
attempted, induced, or performed in violation of this subchapter is
not criminally liable for the violation.
(c) Conduct constituting an offense under this section may
also be the basis for an administrative violation under Section
171.064.
Sec. 171.066. ENFORCEMENT OF SUBCHAPTER. A state executive
or administrative official may not decline to enforce this
subchapter, or adopt a construction of this subchapter in a way that
narrows its applicability, based on the official's own beliefs on
the requirements of the state or federal constitution, unless the
official is enjoined by a state or federal court from enforcing this
subchapter.
SECTION 6. The following provisions of the Health and
Safety Code are repealed:
(1) Sections 171.061(3) and (6); and
(2) Section 171.063(b).
SECTION 7. (a) Nothing in this Act shall be construed as
creating or recognizing a right to abortion.
(b) It is not the intention of this Act to make lawful an
abortion that is otherwise unlawful.
(c) Nothing in this Act repeals, replaces, or otherwise
invalidates existing Texas laws, regulations, or policies.
SECTION 8. Any provision of this Act held to be invalid or
unenforceable by its terms or as applied to any person or
circumstance shall be construed so as to give the provision the
maximum effect permitted by law, unless such holding is one of utter
invalidity or unenforceability, in which event the provision shall
be considered severable from the other provisions of this Act and
shall not affect the remainder or the application of the provisions
to other persons not similarly situated or to other, dissimilar
circumstances.
SECTION 9. (a) Except as provided by Subsection (b) of this
section, the changes in law made by this Act apply only to an
abortion performed or induced on or after the effective date of this
Act.
(b) Section 171.065, Health and Safety Code, as added by
this Act, applies only to an abortion performed or induced on or
after September 1, 2021.
SECTION 10. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2021.