By: Toth H.B. No. 111
A BILL TO BE ENTITLED
AN ACT
relating to abortion, including civil liability for distribution of
abortion-inducing drugs and duties of Internet service providers;
creating a criminal offense; authorizing a private civil right of
action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Women and Child
Safety Act.
SECTION 2. The legislature finds that:
(1) human life begins at fertilization;
(2) abortion is a murderous act of violence that
purposefully and knowingly terminates a human life in the womb;
(3) unborn human beings are entitled to the full and
equal protection of the laws that prohibit violence against other
human beings;
(4) the United States Supreme Court's ruling in Dobbs
v. Jackson Women's Health Organization, No. 19-1392 (U.S. June 24,
2022), correctly overruled the lawless and unconstitutional
pronouncements in Roe v. Wade, 410 U.S. 113 (1973) and Planned
Parenthood of Southern Pennsylvania v. Casey, 505 U.S. 833 (1992),
which had invented and perpetuated a supposed constitutional right
to abortion that cannot be found anywhere in the text of the United
States Constitution;
(5) so-called abortion funds that operate in this
state have been funding and otherwise aiding or abetting criminal
abortions performed in violation of the laws of this state,
exposing themselves and each of their donors to felony criminal
prosecution;
(6) the abortion funds and their donors are not and
never were protected by an injunction in any abortion-related case
because they are not parties to those cases, and there has never
been an injunction that restrains a state official from prosecuting
abortion funds and their donors who aided or abetted abortions
performed in violation of the laws of this state;
(7) the abortion funds and their donors are not and
never were protected from criminal prosecution by Roe v. Wade, 410
U.S. 113 (1973), because:
(A) there is no constitutional right to pay for
another person's abortion;
(B) abortion funds and their donors lack
third-party standing to assert the supposed constitutional rights
of women seeking abortions; and
(C) any immunity from prosecution that the
abortionist might have enjoyed on account of Roe does not preclude
the imposition of accomplice liability on abortion funds and their
donors;
(8) it is a federal crime to mail abortion-inducing
drugs or to receive them in the mail, punishable by five years
imprisonment, under 18 U.S.C. Section 1461;
(9) it is also a federal crime to transport
abortion-inducing drugs in interstate or foreign commerce under 18
U.S.C. Section 1462(c);
(10) these federal statutes are fully enforceable now
that Roe has been overruled, and the statute of limitations for each
of these crimes is five years;
(11) violations of 18 U.S.C. Sections 1461-1462 are
predicate offenses under the federal Racketeer Influenced and
Corrupt Organizations Act (18 U.S.C. Section 1961 et seq.), which
exposes distribution networks of abortion-inducing drugs and their
donors to civil racketeering liability as well as criminal
prosecution as a racketeering enterprise under federal law;
(12) the legislature calls on the attorney general and
each district attorney in this state to investigate and prosecute
abortion funds and each of their donors for aiding or abetting
criminal abortion in this state in violation of the laws of this
state; and
(13) the legislature calls on state and federal
prosecutors in this state to investigate and prosecute every
distribution network for abortion-inducing drugs under federal
racketeering laws as well as 18 U.S.C. Sections 1461-1462.
SECTION 3. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 171A to read as follows:
CHAPTER 171A. ABORTION-INDUCING DRUGS AND FACILITATION OF
ABORTION; ENFORCEMENT OF ABORTION LAWS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 171A.001. DEFINITIONS. In this chapter:
(1) "Abortion" means the act of using, prescribing,
administering, procuring, or selling an instrument, medicine,
drug, or any other substance, device, or means with the purpose to
terminate a pregnancy of a woman, with knowledge that the
termination by any of those means will with reasonable likelihood
cause the death of a living human being in the womb. The term does
not include:
(A) in vitro fertilization or fertility
treatments of any type;
(B) the use, prescription, administration,
procuring, or selling of an emergency contraceptive, including Plan
B and morning-after pills, intrauterine devices, or any other type
of contraceptive; or
(C) an act performed with the purpose to:
(i) save the life or preserve the health of
the unborn child;
(ii) remove a dead unborn child caused by
spontaneous abortion; or
(iii) remove or treat an ectopic pregnancy.
(2) "Abortion-inducing drug" means a drug or
medication, including mifepristone and misoprostol, that is used to
terminate the life of an unborn child. The term does not include:
(A) an emergency contraceptive, including Plan B
and morning-after pills, intrauterine devices, or any other type of
contraceptive; or
(B) drugs or medications that are possessed or
distributed for a purpose that does not include the termination of a
pregnancy, including for the treatment of an unrelated medical
condition.
(3) "Abortion funds" means a corporation,
organization, government, governmental agency, business trust,
estate, trust, partnership, association, or any other legal entity
that:
(A) exists for the purpose of aiding or abetting
elective abortions; and
(B) pays for, reimburses, or subsidizes in any
way the costs associated with obtaining an elective abortion.
(4) "Abortion provider" means a person who performs
elective abortions.
(5) "Elective abortion" means an abortion other than
those performed or induced in response to a medical emergency.
(6) "Fertilization" means the fusion of a human
spermatozoon with a human ovum.
(7) "Governmental entity" means this state, a state
agency, or a political subdivision of this state.
(8) "Human being" means an individual member of the
species homo sapiens at any state of development beginning at
fertilization.
(9) "Information content provider" means a person who
is responsible, wholly or partly, for the creation or development
of information provided through the Internet or any other
interactive computer service.
(10) "Interactive computer service" means an
information service, system, or access software provider that
provides or enables computer access by multiple users to a computer
server, including specifically a service or system that provides
access to the Internet and such systems operated or services
offered by libraries or educational institutions.
(11) "Medical emergency" means a condition in which an
abortion is necessary to preserve the life of a pregnant woman whose
life is endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical condition
caused by or arising from the pregnancy itself.
(12) "Unborn child" means an individual organism of
the species homo sapiens in any stage of gestation from
fertilization until live birth.
(13) "Woman" means an individual whose biological sex
is female, including an individual with XX chromosomes and an
individual with a uterus, regardless of any gender identity that
the individual attempts to assert or claim.
SUBCHAPTER B. PROTECTION FROM ABORTION-INDUCING DRUGS
Sec. 171A.051. PROHIBITIONS RELATED TO ABORTION-INDUCING
DRUGS. (a) Except as provided by Subsection (b), a person may not:
(1) manufacture, possess, or distribute an
abortion-inducing drug in this state;
(2) mail, transport, deliver, or provide an
abortion-inducing drug in any manner to or from any person or
location in this state;
(3) provide information on how to obtain an
abortion-inducing drug;
(4) create, edit, upload, publish, host, maintain, or
register a domain name for an Internet website, platform, or other
interactive computer service that assists or facilitates a person's
effort in obtaining an abortion-inducing drug;
(5) create, edit, program, or distribute any
application or software for use on a computer or an electronic
device that is intended to enable individuals to obtain an
abortion-inducing drug or to facilitate an individual's access to
an abortion-inducing drug; or
(6) engage in conduct that would make a person
criminally responsible under Chapter 7, Penal Code, as a party to a
criminal act described by Subdivision (1) or (2).
(b) Notwithstanding any other law, Subsection (a) does not
prohibit:
(1) 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 protected
by Section 8, Article I, Texas Constitution;
(2) conduct this state is prohibited from regulating
under federal law, including the United States Constitution;
(3) conduct engaged in by a pregnant woman who aborts
or attempts to abort the woman's unborn child;
(4) possessing, distributing, mailing, transporting,
delivering, or providing an abortion-inducing drug for a purpose
that does not include performing, inducing, or attempting an
abortion;
(5) possessing an abortion-inducing drug for purposes
of entrapping a person that violates this section;
(6) conduct engaged in by a person as directed by a
federal agency, contractor, or employee to carry out a duty under
federal law, if prohibiting that conduct would violate the
doctrines of preemption or intergovernmental immunity; or
(7) conduct described by Section 171A.201(a)(1), (2),
or (3).
SUBCHAPTER C. CIVIL LIABILITY FOR DISTRIBUTION OF
ABORTION-INDUCING DRUGS
Sec. 171A.101. CIVIL ACTION FOR DISTRIBUTION OF
ABORTION-INDUCING DRUGS. (a) Notwithstanding any other law and
except as provided by this section, a person who manufactures,
distributes, mails, transports, delivers, or provides an
abortion-inducing drug in violation of Section 171A.051 or who aids
or abets the manufacture, distribution, mailing, transportation,
delivery, or provision of an abortion-inducing drug in violation of
Section 171A.051, or who otherwise engages in any conduct
prohibited by Section 171A.051 is strictly and jointly and
severally liable for:
(1) the wrongful death of an unborn child or pregnant
woman from the use of the abortion-inducing drug; and
(2) personal injury of an unborn child or pregnant
woman from the use of the abortion-inducing drug.
(b) A claimant may not bring an action under this section if
the action is preempted by 47 U.S.C. Section 230(c).
(c) Notwithstanding any other law, a civil action may not be
brought under this section:
(1) against the woman who used or sought to obtain
abortion-inducing drugs to abort or attempt to abort her unborn
child;
(2) against a person that acted at the behest of a
federal agency, contractor, or employee who is carrying out duties
under federal law if the imposition of liability would violate the
doctrines of preemption or intergovernmental immunity; or
(3) by any person who impregnated the woman who used
abortion-inducing drugs through conduct constituting an offense
under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code,
or by another person who acts in concert or participation with that
person.
(d) Notwithstanding any other law, including rules of civil
procedure adopted under Chapter 26, Civil Practice and Remedies
Code, an action brought under this section may not be litigated on
behalf of a claimant class or a defendant class, and no court may
certify a class in the action.
Sec. 171A.102. DEFENSES. (a) It is an affirmative defense
to an action brought under Section 171A.101 that the defendant:
(1) was unaware that the defendant was engaged in the
conduct described by Section 171A.101(a); and
(2) took every reasonable precaution to ensure that
the defendant would not manufacture, distribute, mail, transport,
deliver, provide, or aid or abet the manufacture, distribution,
mail, transportation, delivery, or provision of abortion-inducing
drugs.
(b) A defendant has the burden of proving an affirmative
defense under Subsection (a) by a preponderance of the evidence.
(c) 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 or
provisions of this chapter are unconstitutional or were
unconstitutional;
(3) a defendant's reliance on a court decision that has
been vacated, reversed, or overruled on appeal or by a subsequent
court, even if that court decision had not been vacated, reversed,
or overruled when the cause of action accrued;
(4) a defendant's reliance on a state or federal court
decision that is not binding on the court in which the action has
been brought;
(5) a defendant's reliance on a federal statute,
agency rule or action, or treaty that has been repealed,
superseded, or declared invalid or unconstitutional, even if that
federal statute, agency rule or action, or treaty had not been
repealed, superseded, or declared invalid or unconstitutional when
the cause of action accrued;
(6) non-mutual issue preclusion or non-mutual claim
preclusion;
(7) the consent of the claimant or the unborn child's
mother to the abortion;
(8) contributory or comparative negligence;
(9) assumption of risk; or
(10) a claim that the enforcement of this chapter or
the imposition of civil liability against the defendant will
violate the constitutional rights of third parties.
Sec. 171A.103. APPORTIONED LIABILITY. Notwithstanding any
other law, if a claimant who brings an action under Section 171A.101
is unable to identify the specific manufacturer of the
abortion-inducing drug that caused the death or injury that is the
basis for the action, the liability is apportioned among all
manufacturers of abortion-inducing drugs in proportion to each
manufacturer's share of the market for abortion-inducing drugs.
Sec. 171A.104. STATUTE OF LIMITATIONS. Notwithstanding any
other law, a person may bring an action under Section 171A.101 not
later than the sixth anniversary of the date the cause of action
accrues.
Sec. 171A.105. WAIVER PROHIBITED. A waiver or purported
waiver of the right to bring an action under Section 171A.101 is
void as against public policy and is not enforceable in any court.
Sec. 171A.106. CONSTRUCTION OF SUBCHAPTER. This subchapter
may not be construed to impose liability on 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 protected by Section 8, Article I, Texas
Constitution.
Sec. 171A.107. JURISDICTION; APPLICABILITY OF STATE LAW.
(a) Notwithstanding any other law, including Subchapter C, Chapter
17, Civil Practice and Remedies Code, the courts of this state have
personal jurisdiction over a defendant sued under Section 171A.101
to the maximum extent permitted by the Fourteenth Amendment to the
United States Constitution.
(b) Notwithstanding any other law, the law of this state
applies to the use of an abortion-inducing drug by a resident of
this state, regardless of where the use of the drug occurs, and to
an action brought under Section 171A.101 to the maximum extent
permitted by the United States Constitution.
(c) Chapters 27 and 110, Civil Practice and Remedies Code,
do not apply to an action brought under Section 171A.101.
SUBCHAPTER D. PRIVATE CIVIL ENFORCEMENT OF PROHIBITIONS RELATING
TO ABORTION-INDUCING DRUGS
Sec. 171A.151. CIVIL ACTION AUTHORIZED. (a) Except as
provided by this section, a person, other than this state, a
political subdivision of this state, and an officer or employee of
this state or a political subdivision of this state, has standing to
bring and may bring a civil action against a person who:
(1) violates Section 171A.051; or
(2) intends to violate Section 171A.051.
(b) A claimant may not bring an action under this section if
the action is preempted by 47 U.S.C. Section 230(c).
(c) Notwithstanding any other law, a civil action may not be
brought under this section:
(1) against the woman who used or sought to obtain
abortion-inducing drugs to abort or attempt to abort her unborn
child;
(2) against a person that acted at the behest of a
federal agency, contractor, or employee who is carrying out duties
under federal law if the imposition of liability would violate the
doctrines of preemption or intergovernmental immunity; or
(3) by any person who impregnated the woman who used or
sought to obtain abortion-inducing drugs through conduct
constituting an offense under Section 21.02, 21.11, 22.011, 22.021,
or 25.02, Penal Code, or by another person who acts in concert or
participation with that person.
(d) Notwithstanding any other law, including rules of civil
procedure adopted under Chapter 26, Civil Practice and Remedies
Code, an action brought under this section may not be litigated on
behalf of a claimant class or a defendant class, and no court may
certify a class in the action.
Sec. 171A.152. DEFENSES. (a) It is an affirmative defense
to an action brought under Section 171A.151 that the defendant:
(1) was unaware that the defendant was engaged in the
conduct prohibited by Section 171A.051; and
(2) took every reasonable precaution to ensure that
the defendant would not violate Section 171A.051.
(b) A defendant has the burden of proving an affirmative
defense under Subsection (a) by a preponderance of the evidence.
(c) 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 or
provisions of this chapter are unconstitutional or were
unconstitutional;
(3) a defendant's reliance on a court decision that has
been vacated, reversed, or overruled on appeal or by a subsequent
court, even if that court decision had not been vacated, reversed,
or overruled when the cause of action accrued;
(4) a defendant's reliance on a state or federal court
decision that is not binding on the court in which the action has
been brought;
(5) a defendant's reliance on a federal statute,
agency rule or action, or treaty that has been repealed,
superseded, or declared invalid or unconstitutional, even if that
federal statute, agency rule or action, or treaty had not been
repealed, superseded, or declared invalid or unconstitutional when
the cause of action accrued;
(6) non-mutual issue preclusion or non-mutual claim
preclusion;
(7) the consent of the claimant or the unborn child's
mother to the abortion;
(8) contributory or comparative negligence;
(9) assumption of risk; or
(10) a claim that the enforcement of this chapter or
the imposition of civil liability against the defendant will
violate the constitutional rights of third parties.
Sec. 171A.153. STATUTE OF LIMITATIONS. Notwithstanding any
other law, a person may bring an action under Section 171A.151 not
later than the sixth anniversary of the date the cause of action
accrues.
Sec. 171A.154. REMEDIES. (a) Except as provided by
Subsection (c), if a claimant prevails in an action brought under
Section 171A.151, the court shall award:
(1) injunctive relief sufficient to prevent the
defendant from violating Section 171A.051;
(2) nominal damages or compensatory damages if the
claimant has suffered injury or harm from the defendant's conduct,
including loss of consortium and emotional distress;
(3) statutory damages in an amount of not less than
$10,000 for each violation of Section 171A.051; and
(4) costs and reasonable attorney's fees.
(b) A court may not award relief under Subsection (a)(3) or
(a)(4) in response to a violation of Section 171A.051 if the
defendant demonstrates that a court has already ordered the
defendant to pay the full amount of statutory damages under
Subsection (a)(3) in another action for that particular violation.
(c) A court may not award costs or attorney's fees to a
defendant against whom an action is brought under Section 171A.151.
Sec. 171A.155. CONSTRUCTION OF SUBCHAPTER. This subchapter
may not be construed to impose liability on 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 protected by Section 8, Article I, Texas
Constitution.
Sec. 171A.156. PUBLIC ENFORCEMENT PROHIBITED. (a)
Notwithstanding any other law, this state, a political subdivision
of this state, or an officer or employee of this state or a
political subdivision of this state may not:
(1) act in concert or participation with a claimant
bringing an action under Section 171A.151;
(2) establish or attempt to establish any type of
agency or fiduciary relationship with a claimant bringing an action
under Section 171A.151;
(3) make any attempt to control or influence a person's
decision to bring an action under Section 171A.151 or that person's
conduct of the litigation; or
(4) intervene in an action brought under Section
171A.151.
(b) This section does not prohibit a governmental entity or
officer or employee of a governmental entity from filing an amicus
curiae brief in an action brought under Section 171A.151 if the
entity, officer, or employee does not act in concert or
participation with the claimant.
Sec. 171A.157. JURISDICTION; APPLICABILITY OF STATE LAW.
(a) Notwithstanding any other law, including Subchapter C, Chapter
17, Civil Practice and Remedies Code, the courts of this state have
personal jurisdiction over a defendant sued under Section 171A.151
to the maximum extent permitted by the Fourteenth Amendment to the
United States Constitution.
(b) Notwithstanding any other law, the law of this state
applies to an action brought under Section 171A.151 to the maximum
extent permitted by the United States Constitution.
(c) Chapters 27 and 110, Civil Practice and Remedies Code,
do not apply to an action brought under Section 171A.151.
SUBCHAPTER E. PRIVATE CIVIL ENFORCEMENT AGAINST INTERACTIVE
COMPUTER SERVICES FACILITATING ABORTION
Sec. 171A.201. CIVIL ACTION AGAINST INTERACTIVE COMPUTER
SERVICE PROVIDER. (a) A person, other than this state, a political
subdivision of this state, and an officer or employee of this state
or a political subdivision of this state, has standing to bring and
may bring a civil action against a person who provides or maintains:
(1) an interactive computer service that allows
residents of this state to access information or material that
assists or facilitates efforts to obtain elective abortions or
abortion-inducing drugs;
(2) a platform for downloading any application or
software for use on a computer or electronic device that is designed
to assist or facilitate efforts to obtain elective abortions or
abortion-inducing drugs; or
(3) a platform that allows or enables those who
provide or aid or abet elective abortions, or those who
manufacture, distribute, mail, transport, deliver, or provide
abortion-inducing drugs, to collect money, digital currency,
resources, or any other thing of value in connection with that
conduct.
(b) Notwithstanding any other law, including rules of civil
procedure adopted under Chapter 26, Civil Practice and Remedies
Code, an action brought under this section may not be litigated on
behalf of a claimant class or a defendant class, and no court may
certify a class in the action.
Sec. 171A.202. DEFENSES. (a) It is an affirmative defense
to an action brought under Section 171A.201 that the defendant:
(1) was unaware that the defendant's interactive
computer service or platform was being used to assist or facilitate
efforts to obtain elective abortions or abortion-inducing drugs;
and
(2) on learning that the defendant's interactive
computer service or platform was being used to assist or facilitate
efforts to obtain elective abortions or abortion-inducing drugs,
took prompt action to:
(A) block access to any information, material,
application, or software that assists or facilitates efforts to
obtain elective abortions or abortion-inducing drugs; and
(B) block those who provide or aid or abet
elective abortions and those who manufacture, distribute, mail,
transport, deliver, or provide abortion-inducing drugs, from
collecting money, digital currency, resources, or any other thing
of value through its interactive computer service or platform.
(b) A defendant has the burden of proving an affirmative
defense under Subsection (a) by a preponderance of the evidence.
Sec. 171A.203. REMEDIES. (a) Except as provided by
Subsection (b), if a claimant prevails in an action brought under
Section 171A.201, the court shall award only declaratory or
injunctive relief. A court may not award:
(1) damages in the action, even if the claimant
demonstrates harm from the defendant's conduct; or
(2) a prevailing claimant's attorney's fees or costs.
(b) A court may not award relief under Subsection (a) if the
action was brought in response to:
(1) the exercise of a constitutional right that
belongs personally to the defendant;
(2) conduct engaged in at the direction of a federal
agency, contractor, or employee who is carrying out a duty under
federal law, if the relief authorized by Subsection (a) would
violate the doctrines of preemption or intergovernmental immunity;
or
(3) conduct engaged in by a woman who aborted or
attempted to abort her unborn child, if that woman is the named
defendant in the action.
Sec. 171A.204. RELATION TO OTHER INFORMATION CONTENT
PROVIDERS. A person who engages in conduct described by Section
171A.201(a)(1), (2), or (3) may not be:
(1) held vicariously liable for nominal, statutory, or
compensatory damages incurred by another information content
provider;
(2) held liable or legally responsible for the conduct
of a publisher or speaker of any information provided by another
information content provider; or
(3) treated as the speaker or publisher of any
information provided by another information content provider under
any provision of the laws of this state.
Sec. 171A.205. EXCLUSIVE ENFORCEMENT; EFFECT OF OTHER LAW.
(a) Notwithstanding any other law, conduct described by Section
171A.201(1), (2), or (3) is not subject to criminal, civil, or
administrative liability except solely through the private civil
action described by Section 171A.201. This state, a political
subdivision of this state, or an officer or employee of this state
or a political subdivision of this state may not take a direct or
indirect enforcement action under this subchapter against any
person, by any means.
(b) Except as provided by Subsection (c), a person may not
use conduct described by Section 171A.201(1), (2), or (3) as a
justification for the enforcement of any other law or any type of
adverse consequence under any other law except as provided by
Section 171A.201.
(c) This section does not preclude or limit the enforcement
of any other law or regulation against conduct that is
independently prohibited by that other law or regulation.
Sec. 171A.206. PUBLIC ENFORCEMENT PROHIBITED. (a)
Notwithstanding any other law, this state, a political subdivision
of this state, or an officer or employee of this state or a
political subdivision of this state may not:
(1) act in concert or participation with a claimant
bringing an action under Section 171A.201;
(2) establish or attempt to establish any type of
agency or fiduciary relationship with a claimant bringing an action
under Section 171A.201;
(3) make any attempt to control or influence a person's
decision to bring an action under Section 171A.201 or that person's
conduct of the litigation; or
(4) intervene in an action brought under Section
171A.201.
(b) This section does not prohibit a governmental entity or
officer or employee of a governmental entity from filing an amicus
curiae brief in an action brought under Section 171A.201 if the
entity, officer, or employee does not act in concert or
participation with the claimant.
Sec. 171A.207. JURISDICTION; APPLICABILITY OF STATE LAW.
(a) Notwithstanding any other law, including Subchapter C, Chapter
17, Civil Practice and Remedies Code, the courts of this state have
personal jurisdiction over a defendant sued under Section 171A.201
to the maximum extent permitted by the Fourteenth Amendment to the
United States Constitution.
(b) Notwithstanding any other law, the law of this state
applies to an action brought under Section 171A.201 to the maximum
extent permitted by the United States Constitution.
(c) Chapters 27 and 110, Civil Practice and Remedies Code,
do not apply to an action brought under Section 171A.151.
Sec. 171A.208. INTERACTIVE COMPUTER SERVICE USER OR
PROVIDER IMMUNITY FOR CERTAIN ACTIONS. Notwithstanding any other
law, a provider or user of an interactive computer service has
absolute and nonwaivable immunity from liability or suit for:
(1) an action taken to restrict access to or
availability of information or material that assists or facilitates
access to elective abortions or abortion-inducing drugs,
regardless of whether the information or material is
constitutionally protected;
(2) an action taken to enable or make available to
information content providers or others the technical means to
restrict access to information or material described by Subdivision
(1); or
(3) a denial of service to persons who provide or aid
or abet elective abortions or who manufacture, mail, distribute,
transport, or provide abortion-inducing drugs.
SUBCHAPTER F. PROVISIONS GENERALLY APPLICABLE TO CIVIL LIABILITY
FOR FACILITATING ABORTION
Sec. 171A.251. AFFIRMATIVE DEFENSE. (a) A defendant
against whom an action is brought under Section 171A.101, 171A.151,
or 171A.201 may assert an affirmative defense to liability under
this section if:
(1) the imposition of civil liability on the defendant
will violate constitutional or federally protected rights that
belong to the defendant personally; or
(2) the defendant:
(A) has standing to assert the rights of a third
party under the tests for third-party standing established by the
United States Supreme Court; and
(B) demonstrates that the imposition of civil
liability on the defendant will violate constitutional or federally
protected rights belonging to a third party.
(b) The defendant has the burden of proving an affirmative
defense described by Subsection (a) by a preponderance of the
evidence.
Sec. 171A.252. CONSTRUCTION OF CHAPTER WITH RESPECT TO
CIVIL LIABILITY AND ENFORCEMENT. This chapter may not be construed
to limit or preclude a defendant from asserting the
unconstitutionality of any provision or application of the laws of
this state as a defense to liability under Section 171A.101,
171A.151, or 171A.201 or from asserting any other defense that
might be available under any other source of law.
Sec. 171A.253. APPLICATION OF OTHER LAW. Notwithstanding
any other law, a court may not apply the law of another state or
jurisdiction to any civil action brought under Section 171A.101,
171A.151, or 171A.201 unless Article VI of the United States
Constitution compels it to do so.
Sec. 171A.254. VENUE. (a) Notwithstanding any other law, a
civil action brought under Section 171A.101, 171A.151, or 171A.201
must 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 a defendant's residence at the time
the cause of action accrued if a defendant is an individual;
(3) the county of the principal office in this state of
a defendant that is not an individual; or
(4) the county of the claimant's residence if the
claimant is an individual residing in this state.
(b) If a civil action is brought under Section 171A.101,
171A.151, or 171A.201 in a venue described by Subsection (a), the
action may not be transferred to a different venue without the
written consent of all parties.
Sec. 171A.255. PROTECTION FROM COUNTER ACTIONS. If an
action brought against a person or liability imposed in a judgment
entered against a person is wholly or partly based on the person's
decision to bring or threat to bring an action under Section
171A.101, 171A.151, or 171A.201, the person may recover damages
from the claimant who brought the action or obtained the judgment or
who has sought to enforce the judgment. The damages include:
(1) compensatory damages created by the action or
judgment, including money damages in an amount of the judgment and
costs, expenses, and reasonable attorney's fees spent in defending
the action;
(2) costs, expenses, and reasonable attorney's fees
incurred in bringing an action under this section; and
(3) additional statutory damages in an amount of not
less than $100,000.
SUBCHAPTER G. INTERNET SERVICE PROVIDER DUTIES
Sec. 171A.301. RESTRICTIONS ON ACCESS TO CERTAIN
INFORMATION AND MATERIALS ACCESSIBLE THROUGH CERTAIN INTERNET
WEBSITES. Each Internet service provider that provides Internet
services in this state shall make every reasonable and
technologically feasible effort to block Internet access to
information or material intended to assist or facilitate efforts to
obtain an elective abortion or an abortion-inducing drug, including
information or material accessible through:
(1) the following Internet websites:
(A) aidaccess.org;
(B) heyjane.co;
(C) plancpills.org;
(D) mychoix.co;
(E) justthepill.com; and
(F) carafem.org;
(2) an Internet website, platform, or other
interactive computer service operated by or on behalf of an
abortion provider or abortion fund;
(3) an Internet website, platform, or other
interactive computer service for downloading any application or
software for use on a computer or electronic device that is designed
to assist or facilitate efforts to obtain an elective abortion or an
abortion-inducing drug; or
(4) an Internet website, platform, or other
interactive computer service that allows or enables those who
provide or aid or abet elective abortions, or those who
manufacture, mail, distribute, transport, or provide
abortion-inducing drugs, to collect money, digital currency,
resources, or any other thing of value.
Sec. 171A.302. NOTIFICATION TO INTERNET SERVICE PROVIDER.
A person who becomes aware that information or material described
by Section 171A.301 is accessible through an Internet service
provider that provides Internet services in this state may notify
the provider and request that the provider block access to the
information or material in accordance with that section. A person
may provide the notification by:
(1) calling the provider's customer support number and
providing a precise description and location of the information or
material; or
(2) mailing a letter to the provider that includes a
precise description and location of the information or material.
Sec. 171A.303. PUBLIC ENFORCEMENT PROHIBITED. (a)
Notwithstanding any other law, direct or indirect enforcement of
this subchapter may not be taken or threatened by this state or a
political subdivision of this state, or by any officer, employee,
or agent of this state or a political subdivision of this state, by
any means.
(b) This state, a political subdivision of this state, or an
officer, employee, or agent of this state or a political
subdivision of this state may request or encourage an Internet
service provider to comply with the requirements of this
subchapter.
Sec. 171A.304. LIABILITY; RECOVERY OF DAMAGES. (a)
Notwithstanding any other law, an Internet service provider that
provides Internet services in this state has absolute and
nonwaivable immunity from liability or suit for:
(1) an action taken to comply with the requirements of
this subchapter, or to restrict access to or availability of the
information or material described by Section 171A.301;
(2) an action taken to enable or make available to
information content providers or others the technical means to
restrict access to information or material described by Section
171A.301; or
(3) a denial of service to persons who use or seek to
use the Internet to make available information or material
described by Section 171A.301.
(b) An Internet service provider against whom an action is
brought or a judgment is entered in state or federal court that is
wholly or partly based on the provider's compliance with the
requirements of this subchapter may recover damages from a claimant
that brought the action or obtained the judgment or who has sought
to enforce the judgment. The damages include:
(1) compensatory damages created by the action or
judgment, including money damages in an amount of the judgment, and
expenses and reasonable attorney's fees spent in defending the
action;
(2) costs, expenses, and reasonable attorney's fees
incurred in bringing an action under this section; and
(3) additional statutory damages in an amount of not
less than $100,000.
SUBCHAPTER H. CRIMINAL OFFENSES
Sec. 171A.351. OFFENSE: PAYING OR REIMBURSING ABORTION
COSTS. (a) A person that knowingly pays for or reimburses the
costs associated with obtaining an elective abortion performed on a
pregnant woman commits an offense. An offense under this
subsection is a felony of the second degree, except that the offense
is a felony of the first degree if an unborn child dies as a result
of the offense.
(b) The prohibition under Subsection (a) applies regardless
of:
(1) the individual on whom the elective abortion is
performed;
(2) the location at which the elective abortion is
performed;
(3) the law of the jurisdiction in which the elective
abortion is performed; and
(4) whether the payment or reimbursement is provided
directly or through an intermediary.
(c) The prohibition under Subsection (a) does not apply to a
pregnant woman on whom an elective abortion is performed or
attempted.
(d) The prohibition under Subsection (a) applies
extraterritorially to the maximum extent permitted by the United
States Constitution or the Texas Constitution.
Sec. 171A.352. OFFENSE: DESTROYING EVIDENCE OF ABORTION.
(a) A person commits an offense if the person knowingly or
recklessly conceals, destroys, or spoliates evidence of an elective
abortion performed or attempted:
(1) in this state; or
(2) on a resident of this state, regardless of whether
the person knew or should have known that the elective abortion was
performed or attempted on the resident.
(b) An offense under Subsection (a) is a felony of the
second degree, except that the offense is a felony of the first
degree if an unborn child dies as a result of the offense.
(c) The prohibition under Subsection (a) does not apply to a
pregnant woman on whom an elective abortion is performed or
attempted.
(d) The prohibition under Subsection (a) applies
extraterritorially to the maximum extent permitted by the United
States Constitution or the Texas Constitution.
SUBCHAPTER I. PROVISIONS RELATING TO ENFORCEMENT OF ABORTION LAWS
Sec. 171A.401. DEFINITION. In this subchapter, "abortion
law" means any law of this state regulating abortion, including
this chapter and Chapter 6-1/2, Title 71, Revised Statutes.
Sec. 171A.402. STATUTE OF LIMITATIONS. Notwithstanding any
other law, there is no applicable statute of limitations for an
offense committed under an abortion law.
Sec. 171A.403. CONCURRENT JURISDICTION OF ATTORNEY
GENERAL. Notwithstanding any other law, the attorney general has
concurrent jurisdiction to prosecute any abortion law and may
authorize a district attorney to investigate or prosecute a
violation of an abortion law if a local district attorney fails or
refuses to investigate or prosecute the violation.
Sec. 171A.404. ATTORNEY GENERAL ACTION FOR VIOLATION OF
CERTAIN ABORTION LAWS. (a) The attorney general has parens patriae
standing to bring an action under this section on behalf of unborn
children of residents of this state.
(b) The attorney general may bring an action for damages or
injunctive relief on behalf of an unborn child of a resident of this
state against a person who violates any abortion law of this state
except for Subchapter H, Chapter 171, or Subchapter B, C, or E of
this chapter.
Sec. 171A.405. FEE SHIFTING. (a) Notwithstanding any
other law, a person, including an entity, attorney, or law firm, who
brings an action seeking declaratory or injunctive relief to
prevent a person, including this state, a political subdivision of
this state, or an officer, employee, or agent of this state or a
political subdivision of this state, from enforcing or bringing an
action to enforce a law, including a statute, ordinance, rule, or
regulation, that regulates or restricts abortion or that limits
taxpayer funding for persons that perform or promote abortions in a
state or federal court or who represents a litigant seeking such
relief in a state or federal court is jointly and severally liable
to pay the costs and reasonable attorney's fees of the prevailing
party in the action seeking declaratory or injunctive relief.
(b) For purposes of this section, a party is considered a
prevailing party if a state or federal court:
(1) dismisses a 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 that claim
or cause of action.
(c) A prevailing party may recover costs and reasonable
attorney's fees under this section only to the extent that those
costs and attorney's fees were incurred while defending claims or
causes of action on which the party prevailed.
(d) 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, who 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.
(e) It is not a defense to an action brought under
Subsection (d) 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 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.
SUBCHAPTER J. IMMUNITY AND LIMITS ON STATE-COURT JURISDICTION
Sec. 171A.451. SOVEREIGN, GOVERNMENTAL, AND OFFICIAL
IMMUNITY. (a) Except as provided by Subsection (b) but
notwithstanding any other law, the state has sovereign immunity, a
political subdivision of this state has governmental immunity, and
an officer or employee of this state or a political subdivision of
this state has official immunity in an action, claim, counterclaim,
or any other type of legal or equitable action that:
(1) challenges the validity of any provision or
application of this chapter, on constitutional grounds or
otherwise; or
(2) seeks to prevent or enjoin this state, a political
subdivision of this state, or an officer or employee of this state
or a political subdivision of this state from:
(A) enforcing any provision or application of
this chapter; or
(B) hearing, adjudicating, or docketing a civil
action brought under Section 171A.101, 171A.151, or 171A.201.
(b) Subsection (a) does not apply to the extent that
immunity has been abrogated or preempted by federal law in a manner
consistent with the United States Constitution.
(c) Sovereign immunity conferred by this section includes
the constitutional sovereign immunity recognized by the United
States Supreme Court, which applies in both state and federal court
and may not be abrogated by Congress or by a state or federal court
except under legislation authorized by:
(1) Section 5 of the Fourteenth Amendment, United
States Constitution;
(2) the Bankruptcy Clause of Article I, United States
Constitution; or
(3) Congress's powers to raise and support armies and
to provide and maintain a navy.
Sec. 171A.452. APPLICABILITY OF IMMUNITY. Notwithstanding
any other law, the immunity conferred by Section 171A.451 applies
to every court, both state and federal, and in every type of
adjudicative proceeding.
Sec. 171A.453. CONSTRUCTION OF CHAPTER. This chapter may
not be construed to prevent a litigant from asserting the
invalidity or unconstitutionality of a provision or application of
this chapter as a defense to an action, claim, or counterclaim
brought against the litigant.
Sec. 171A.454. WAIVER OF IMMUNITY. (a) Notwithstanding
any other law, a provision of the laws of this state may not be
construed to waive or abrogate an immunity conferred by Section
171A.451 unless it expressly waives or abrogates immunity with
specific reference to that section.
(b) Notwithstanding any other law, an attorney representing
the state, a political subdivision of this state, or an officer or
employee of this state or a political subdivision of this state may
not waive an immunity conferred by Section 171A.451 or take an
action that would result in a waiver of that immunity. A purported
waiver or action described by this subsection is considered void
and an ultra vires act.
Sec. 171A.455. JURISDICTION. Notwithstanding any other
law, a court of this state does not have jurisdiction to consider
and may not award relief under any action, claim, or counterclaim
that:
(1) seeks declaratory or injunctive relief, or any
type of writ, that would pronounce any provision or application of
this subchapter invalid or unconstitutional; or
(2) would restrain a person, including this state, a
political subdivision of this state, or an officer or employee of
this state or a political subdivision of this state, from:
(A) enforcing any provision or application of
this chapter; or
(B) hearing, adjudicating, or docketing a civil
action brought under Section 171A.101, 171A.151, or 171A.201.
Sec. 171A.456. EFFECT OF CONTRARY JUDICIAL ACTIONS. (a)
Notwithstanding any other law, judicial relief issued by a court of
this state that disregards the immunity conferred by Section
171A.451 or the jurisdictional limitation described by Section
171A.455:
(1) is considered void because a court without
jurisdiction issued the relief; and
(2) may not be enforced or obeyed by an officer,
employee, or agent, including a judicial official, of this state or
a political subdivision of this state.
(b) Notwithstanding any other law, a writ, injunction, or
declaratory judgment issued by a court of this state that purports
to restrain a person, including the state, a political subdivision
of this state, or an officer or employee of this state or a
political subdivision of this state, from hearing, adjudicating,
docketing, or filing an action brought under Section 171A.101,
171A.151, or 171A.201:
(1) is considered void and a violation of the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution; and
(2) may not be enforced or obeyed by an officer,
employee, or agent, including a judicial official, of this state or
a political subdivision of this state.
Sec. 171A.457. LIABILITY FOR VIOLATION. (a)
Notwithstanding any other law, a person may bring an action against
an officer, employee, or agent, including a judicial official, of
this state or a political subdivision of this state, who issues,
enforces, or obeys a writ, injunction, or declaratory judgment
described by Subsection (b) if the writ, injunction, or judgment
prevents or delays the person from bringing an action under Section
171A.101, 171A.151, or 171A.201.
(b) A claimant who prevails in an action brought under this
section is entitled to:
(1) injunctive relief;
(2) compensatory damages;
(3) exemplary damages of not less than $100,000; and
(4) costs and reasonable attorney's fees.
(c) Notwithstanding any other law, in an action brought
under this section, a person who violates Section 171A.455 or
171A.456(b):
(1) may not assert and is not entitled to any type of
immunity defense, including sovereign immunity, governmental
immunity, official immunity, or judicial immunity;
(2) may not be indemnified for an award of damages or
costs and attorney's fees entered against the person or for the
costs of the person's legal defense; and
(3) may not receive or obtain legal representation
from the attorney general.
Sec. 171A.458. ACTION TO RECOVER COSTS. (a)
Notwithstanding any other law, a claimant who brings an action
seeking a writ, injunction, or declaratory judgment that would
restrain a person from hearing, adjudicating, docketing, or filing
an action under Section 171A.101, 171A.151, or 171A.201 is liable
to the person for the person's costs and attorney's fees incurred in
connection with the action.
(b) A person entitled to recover costs and attorney's fees
under this section may bring an action in state or federal court.
(c) It is not a defense to an action brought under this
section that:
(1) the claimant 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 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 4. Section 71.02(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, continuous sexual abuse of young child or disabled
individual, solicitation of a minor, forgery, deadly conduct,
assault punishable as a Class A misdemeanor, burglary of a motor
vehicle, or unauthorized use of a motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(5-a) causing the unlawful delivery, dispensation, or
distribution of a controlled substance or dangerous drug in
violation of Subtitle B, Title 3, Occupations Code;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10;
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) any offense under Section 42.10;
(16) any offense under Section 46.06(a)(1) or 46.14;
(17) any offense under Section 20.05 or 20.06;
(18) any offense under Section 16.02; [or]
(19) any offense classified as a felony under the Tax
Code;
(20) a violation of 18 U.S.C. Section 1462(c);
(21) a violation of an abortion law under Chapter 170,
170A, 171, or 171A, Health and Safety Code, or Chapter 6-1/2, Title
71, Revised Statutes; and
(22) an offense under Chapter 28 directed at a church,
a crisis pregnancy center, an adoption agency, or an entity that
offers alternatives to abortion services.
SECTION 5. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137
(1996), in which in the context of determining the 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 Act, and every application of the provisions in this Act to
every person, group of persons, or circumstances, are severable
from each other.
(b) If any application of any provision in this Act to any
person, group of persons, or circumstances is found by a court to be
invalid, preempted, or unconstitutional, for any reason
whatsoever, then the remaining applications of that provision to
all other persons and circumstances shall be severed and preserved,
and shall remain in effect. All constitutionally valid
applications of the provisions in this Act shall be severed from any
applications that a court finds to be invalid, preempted, or
unconstitutional, because it is the legislature's intent and
priority that every single valid application of every statutory
provision be allowed to stand alone.
(c) The legislature further declares that it would have
enacted this Act, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of the provisions of this Act, irrespective of the
fact that any provision, section, subsection, sentence, clause,
phrase, or word, or applications of this Act were to be declared
invalid, preempted, or unconstitutional.
(d) If any provision of this Act 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, consistent with the severability
requirements of Subsections (a), (b), and (c) of this section.
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) of this section
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 is not rewriting a statute or engaging in
legislative or lawmaking activity, 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 of the disputed statute against the named parties to
that lawsuit, which 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.
(f) If any state or federal court disregards any of the
severability requirements in Subsections (a), (b), (c), (d), or (e)
of this section, and declares or finds any provision of this Act
facially invalid, preempted, or unconstitutional, when there are
discrete applications of that provision that can be enforced
against a person, a group of persons, or circumstances without
violating federal law or the United States Constitution or Texas
Constitution, then that provision shall be interpreted, as a matter
of state law, 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 federal law or the United
States Constitution or Texas Constitution, and every court shall
adopt this saving construction of that provision until the court
ruling that pronounced the provision facially invalid, preempted,
or unconstitutional is vacated or overruled.
SECTION 6. Chapter 171A, Health and Safety Code, as added by
this Act, applies only to a cause of action that accrues on or after
the effective date of this Act.
SECTION 7. Section 71.02, Penal Code, as amended by this
Act, applies 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 on the date the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
SECTION 8. This Act takes effect on the 91st day after the
last day of legislative session.