By: Slaton H.B. No. 23
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting abortion and protecting the rights of an
unborn child and to criminal liability for, justification for, and
defenses to prohibited conduct.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as the Abolition of
Abortion through Equal Protection for All Unborn Children Act.
SECTION 2. Acting on Section 1, Article I, Texas
Constitution, which provides that "Texas is a free and independent
State, subject only to the Constitution of the United States," and
acknowledging the sanctity of innocent human life created in the
image of God, which should be equally protected from fertilization
to natural death, the purpose of this Act is:
(1) to ensure the right to life and equal protection of
the laws to all unborn children from the moment of fertilization;
(2) to establish that a living human unborn child,
from the moment of fertilization and at every stage of development,
is entitled to the same rights, powers, and privileges as are
secured or granted by the laws of this state to any other human
person;
(3) to rescind all licenses to kill unborn children by
repealing discriminatory provisions;
(4) to equally apply the law to all persons, including
legal defenses, immunities, and justifications, such as duress,
necessity, and mistake of fact;
(5) to recognize that the United States Constitution
and the laws of the United States enacted in pursuance of that
constitution are the supreme law of the land;
(6) as legislators, to fulfill our oaths of office to
the United States Constitution, so help us God, by disavowing the
legal fiction that the constitution prohibits this state from
exercising its reserved police powers to prohibit and criminalize
homicide and from exercising its constitutional and God-given
duties to provide equal protection to all persons within its
jurisdiction;
(7) to follow Justice Thomas's statement in June
Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103 (2020) that
"[t]he constitution does not constrain the States' ability to
regulate or even prohibit abortion"; and
(8) to therefore treat as void and of no effect any and
all federal statutes, regulations, treaties, orders, and court
rulings that would deprive an unborn child of the right to life or
prohibit the equal protection of that right.
SECTION 3. The heading to Section 151.002, Family Code, is
amended to read as follows:
Sec. 151.002. RIGHTS OF A LIVING CHILD [AFTER AN ABORTION OR
PREMATURE BIRTH; CIVIL PENALTY; CRIMINAL OFFENSE].
SECTION 4. Section 151.002(a), Family Code, is amended to
read as follows:
(a) A living human child, from the moment of fertilization
on fusion of a human spermatozoon with a human ovum, [born alive
after an abortion or premature birth] is entitled to the same
rights, powers, and privileges as are secured or granted by the laws
of this state to any other human child [born alive after the normal
gestation period].
SECTION 5. Subchapter B, Chapter 402, Government Code, is
amended by adding Section 402.0375 to read as follows:
Sec. 402.0375. ABORTION PROHIBITION ENFORCEMENT. The
attorney general shall monitor this state's enforcement of Chapters
19 and 22, Penal Code, in relation to abortion. The attorney
general shall direct a state agency to enforce those laws,
regardless of any contrary federal statute, regulation, treaty,
order, or court decision.
SECTION 6. The heading to Chapter 370, Local Government
Code, is amended to read as follows:
CHAPTER 370. MISCELLANEOUS PROVISIONS RELATING TO [MUNICIPAL AND
COUNTY] HEALTH AND PUBLIC SAFETY FOR MORE THAN ONE TYPE OF LOCAL
GOVERNMENT
SECTION 7. Chapter 370, Local Government Code, is amended
by adding Section 370.007 to read as follows:
Sec. 370.007. ABORTION PROHIBITION ENFORCEMENT. The
governing body of a political subdivision of this state shall
ensure that the political subdivision enforces Chapters 19 and 22,
Penal Code, in relation to abortion, regardless of any contrary
federal statute, regulation, treaty, order, or court decision.
SECTION 8. Section 7.02(a), Penal Code, is amended to read
as follows:
(a) A person is criminally responsible for an offense
committed by the conduct of another if:
(1) acting with the kind of culpability required for
the offense, the actor [he] causes or aids an innocent or
nonresponsible person to engage in conduct prohibited by the
definition of the offense;
(2) acting with intent to promote or assist the
commission of the offense, the actor [he] solicits, encourages,
directs, aids, or attempts to aid the other person to commit the
offense; or
(3) having a legal duty to prevent commission of the
offense and acting with intent to promote or assist its commission,
the actor [he] fails to make a reasonable effort to prevent
commission of the offense.
SECTION 9. Section 8.02, Penal Code, is amended to read as
follows:
Sec. 8.02. MISTAKE OF FACT. (a) It is a defense to
prosecution that the actor through mistake formed a reasonable
belief about a matter of fact if the actor's [his] mistaken belief
negated the kind of culpability required for commission of the
offense.
(b) Although an actor's mistake of fact may constitute a
defense to the offense charged, the actor [he] may nevertheless be
convicted of any lesser included offense of which the actor [he]
would be guilty if the fact were as the actor [he] believed.
SECTION 10. Sections 8.05(a), (b), (d), and (e), Penal
Code, are amended to read as follows:
(a) It is an affirmative defense to prosecution that the
actor engaged in the proscribed conduct because the actor [he] was
compelled to do so by threat of imminent death or serious bodily
injury to the actor [himself] or another person.
(b) In a prosecution for an offense that does not constitute
a felony, it is an affirmative defense to prosecution that the actor
engaged in the proscribed conduct because the actor [he] was
compelled to do so by force or threat of force.
(d) The defense provided by this section is unavailable if
the actor intentionally, knowingly, or recklessly placed the actor
[himself] in a situation in which it was probable that the actor
[he] would be subjected to compulsion.
(e) It is no defense that a person acted at the command or
persuasion of the actor's [his] spouse, unless the actor [he] acted
under compulsion that would establish a defense under this section.
SECTION 11. Section 9.22, Penal Code, is amended to read as
follows:
Sec. 9.22. NECESSITY. (a) Conduct is justified if:
(1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and
(3) a legislative purpose to exclude the justification
claimed for the conduct does not otherwise plainly appear.
(b) Conduct is justified if the conduct charged is a lawful
medical procedure performed by a physician or other licensed health
care provider and intended to remove an ectopic pregnancy that
seriously threatens the life of the mother when a reasonable
alternative to save the lives of both the mother and the unborn
child is unavailable.
SECTION 12. Chapter 19, Penal Code, is amended by adding
Section 19.07 to read as follows:
Sec. 19.07. TESTIMONIAL IMMUNITY FOR OFFENSES INVOLVING
DEATH OF UNBORN CHILD. (a) This section applies only to an offense
under this chapter involving the death of an unborn child.
(b) A party to an offense to which this section applies may
be required to provide evidence or testify about the offense.
(c) A party to an offense to which this section applies may
not be prosecuted for any offense about which the party is required
to provide evidence or testify, and the evidence and testimony may
not be used against the party in any adjudicatory proceeding except
a prosecution for aggravated perjury. For purposes of this
subsection, "adjudicatory proceeding" means a proceeding before a
court or any other agency of government in which the legal rights,
powers, duties, or privileges of specified parties are determined.
SECTION 13. Chapter 22, Penal Code, is amended by adding
Section 22.13 to read as follows:
Sec. 22.13. TESTIMONIAL IMMUNITY FOR OFFENSES INVOLVING
INJURY TO UNBORN CHILD. (a) This section applies only to an
offense under this chapter involving bodily injury to an unborn
child.
(b) A party to an offense to which this section applies may
be required to provide evidence or testify about the offense.
(c) A party to an offense to which this section applies may
not be prosecuted for any offense about which the party is required
to provide evidence or testify, and the evidence and testimony may
not be used against the party in any adjudicatory proceeding except
a prosecution for aggravated perjury. For purposes of this
subsection, "adjudicatory proceeding" means a proceeding before a
court or any other agency of government in which the legal rights,
powers, duties, or privileges of specified parties are determined.
SECTION 14. Section 38.063(e-1), Education Code, is amended
to read as follows:
(e-1) A grant under this section may not be given to a
nonprofit organization that offers reproductive services,
contraceptive services, counseling, or referrals, or abortion [any
other] services [that require a license under Chapter 245, Health
and Safety Code,] or that is affiliated with a nonprofit
organization that is an abortion provider [licensed under Chapter
245, Health and Safety Code].
SECTION 15. Section 161.006(b), Family Code, is amended to
read as follows:
(b) In this code, "abortion" means the act of using or
prescribing an instrument, a drug, a medicine, or any other
substance, device, or means with the intent to cause the death of an
unborn child of a woman known to be pregnant. The term does not
include birth control devices or oral contraceptives. An act is not
an abortion if the act is done with the intent to:
(1) save the life or preserve the health of an unborn
child;
(2) remove a dead, unborn child whose death was caused
by spontaneous abortion; or
(3) remove an ectopic pregnancy that seriously
threatens the life of the mother when a reasonable alternative to
save the lives of both the mother and the unborn child is
unavailable [has the meaning assigned by Section 245.002, Health
and Safety Code].
SECTION 16. Section 266.010(a), Family Code, is amended to
read as follows:
(a) A foster child who is at least 16 years of age may
consent to the provision of medical care[, except as provided by
Chapter 33,] if the court with continuing jurisdiction determines
that the child has the capacity to consent to medical care. If the
child provides consent by signing a consent form, the form must be
written in language the child can understand.
SECTION 17. Section 501.065, Government Code, is amended to
read as follows:
Sec. 501.065. CONSENT TO MEDICAL, DENTAL, PSYCHOLOGICAL,
AND SURGICAL TREATMENT. An inmate who is younger than 18 years of
age and is confined in a facility operated by or under contract with
the department may, in accordance with procedures established by
the department, consent to medical, dental, psychological, and
surgical treatment for the inmate by a licensed health care
practitioner, or a person under the direction of a licensed health
care practitioner[, unless the treatment would constitute a
prohibited practice under Section 164.052(a)(19), Occupations
Code].
SECTION 18. Sections 2272.001(1) and (2), Government Code,
as added by Chapter 501 (S.B. 22), Acts of the 86th Legislature,
Regular Session, 2019, are amended to read as follows:
(1) "Abortion" means the act of using or prescribing
an instrument, a drug, a medicine, or any other substance, device,
or means with the intent to cause the death of an unborn child of a
woman known to be pregnant. The term does not include birth control
devices or oral contraceptives. An act is not an abortion if the act
is done with the intent to:
(A) save the life or preserve the health of an
unborn child;
(B) remove a dead, unborn child whose death was
caused by spontaneous abortion; or
(C) remove an ectopic pregnancy that seriously
threatens the life of the mother when a reasonable alternative to
save the lives of both the mother and the unborn child is
unavailable [has the meaning assigned by Section 245.002, Health
and Safety Code].
(2) "Abortion provider" means a person who performs or
induces an abortion [:
[(A) a facility licensed under Chapter 245,
Health and Safety Code; or
[(B) an ambulatory surgical center licensed
under Chapter 243, Health and Safety Code, that is used to perform
more than 50 abortions in any 12-month period].
SECTION 19. Section 32.046(e), Health and Safety Code, is
amended to read as follows:
(e) For purposes of this section, "postpartum depression"
means a disorder in which a woman experiences moderate to severe
depression following a pregnancy[, regardless of whether the
pregnancy resulted in birth, or an act defined by Section
245.002(1)].
SECTION 20. Section 248.003, Health and Safety Code, is
amended to read as follows:
Sec. 248.003. EXEMPTIONS. This chapter does not apply to:
(1) a home and community support services agency
required to be licensed under Chapter 142;
(2) a person required to be licensed under Chapter 241
(Texas Hospital Licensing Law);
(3) an institution required to be licensed under
Chapter 242;
(4) an ambulatory surgical center required to be
licensed under Chapter 243 (Texas Ambulatory Surgical Center
Licensing Act);
(5) a birthing center required to be licensed under
Chapter 244 (Texas Birthing Center Licensing Act);
(6) [a facility required to be licensed under Chapter
245 (Texas Abortion Facility Reporting and Licensing Act);
[(7)] a general residential operation, foster group
home, foster home, and child-placing agency, for children in foster
care or other residential care who are under the conservatorship of
the Department of Family and Protective Services; or
(7) [(8)] a person providing medical or nursing care
or services under a license or permit issued under other state law.
SECTION 21. The heading to Chapter 1218, Insurance Code, is
amended to read as follows:
CHAPTER 1218. COVERAGE FOR [ELECTIVE] ABORTION PROHIBITED[;
PROHIBITIONS AND REQUIREMENTS]
SECTION 22. Section 1218.001, Insurance Code, is amended to
read as follows:
Sec. 1218.001. DEFINITION. In this chapter, "abortion"
means the act of using or prescribing an instrument, a drug, a
medicine, or any other substance, device, or means with the intent
to cause the death of an unborn child of a woman known to be
pregnant. The term does not include birth control devices or oral
contraceptives. An act is not an abortion if the act is done with
the intent to:
(1) save the life or preserve the health of an unborn
child;
(2) remove a dead, unborn child whose death was caused
by spontaneous abortion; or
(3) remove an ectopic pregnancy that seriously
threatens the life of the mother when a reasonable alternative to
save the lives of both the mother and the unborn child is
unavailable ["elective abortion" means an abortion, as defined by
Section 245.002, Health and Safety Code, other than an abortion
performed due to a medical emergency as defined by Section 171.002,
Health and Safety Code].
SECTION 23. Section 1218.004, Insurance Code, is amended to
read as follows:
Sec. 1218.004. COVERAGE BY HEALTH BENEFIT PLAN. A health
benefit plan may not provide coverage for [elective] abortion [only
if:
[(1) the coverage is provided to an enrollee
separately from other health benefit plan coverage offered by the
health benefit plan issuer;
[(2) the enrollee pays the premium for coverage for
elective abortion separately from, and in addition to, the premium
for other health benefit plan coverage, if any; and
[(3) the enrollee provides a signature for coverage
for elective abortion, separately and distinct from the signature
required for other health benefit plan coverage, if any, provided
to the enrollee by the health benefit plan issuer].
SECTION 24. The heading to Chapter 1696, Insurance Code, is
amended to read as follows:
CHAPTER 1696. COVERAGE FOR [ELECTIVE] ABORTION; PROHIBITIONS AND
REQUIREMENTS
SECTION 25. Section 1696.001(1), Insurance Code, is amended
to read as follows:
(1) "Abortion" has the meaning assigned by Section
1218.001 ["Elective abortion" means an abortion, as defined by
Section 245.002, Health and Safety Code, other than an abortion
performed due to a medical emergency as defined by Section 171.002,
Health and Safety Code].
SECTION 26. Section 1696.002(a), Insurance Code, is amended
to read as follows:
(a) A qualified health plan offered through a health benefit
exchange may not provide coverage for [elective] abortion.
SECTION 27. 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 an abortion as defined by Section
161.006(b), Family Code, on a woman who is pregnant [with a viable
unborn child during the third trimester of the pregnancy unless:
[(A) the abortion is necessary 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]; or
(19) [performs 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 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.
SECTION 28. The following provisions are repealed:
(1) Section 71.003(c), Civil Practice and Remedies
Code;
(2) Chapter 33, Family Code;
(3) Sections 151.002(b), (c), (d), (e), (f), and (g),
Family Code;
(4) Section 2272.002, Government Code, as added by
Chapter 501 (S.B. 22), Acts of the 86th Legislature, Regular
Session, 2019;
(5) Chapters 170 and 171, Health and Safety Code;
(6) Section 241.007, Health and Safety Code;
(7) Section 241.011, Health and Safety Code;
(8) Section 243.017, Health and Safety Code;
(9) Chapter 245, Health and Safety Code;
(10) Section 285.202, Health and Safety Code;
(11) Section 1218.003, Insurance Code;
(12) Section 1218.005, Insurance Code;
(13) Section 1218.006, Insurance Code;
(14) Section 1696.002(b), Insurance Code;
(15) Chapter 103, Occupations Code;
(16) Section 164.052(c), Occupations Code;
(17) Section 164.055, Occupations Code;
(18) Section 164.0551, Occupations Code;
(19) Section 19.06, Penal Code;
(20) Section 20.01(5), Penal Code;
(21) Section 22.12, Penal Code; and
(22) Section 49.12, Penal Code.
SECTION 29. (a) The changes in law made by this Act apply
only to conduct that occurs on or after the effective date of this
Act. Conduct that occurs before the effective date of this Act 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.
(b) The changes in law made by this Act apply only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act 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
section, an offense is committed before the effective date of this
Act if any element of the offense occurs before the effective date.
(c) Chapters 1218 and 1696, Insurance Code, as amended by
this Act, apply only to a health benefit plan delivered, issued for
delivery, or renewed on or after the effective date of this Act. A
health benefit plan delivered, issued for delivery, or renewed
before the effective date of this Act 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.
SECTION 30. Any federal statute, regulation, treaty, order,
or court decision that purports to supersede, stay, or overrule
this Act is in violation of the Texas Constitution and the United
States Constitution and is therefore void. The State of Texas, a
political subdivision of this state, and any agent of this state or
a political subdivision of this state may, but is not required to,
enter an appearance, special or otherwise, in any federal suit
challenging this Act.
SECTION 31. A provision of this Act is not severable from
any of the Act's other provisions. If any provision is held invalid,
all provisions are invalid.
SECTION 32. 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 on the 91st day after the last day of
the legislative session.