Bill Text: TX HB15 | 2011-2012 | 82nd Legislature | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to informed consent to an abortion.

Spectrum: Partisan Bill (Republican 86-2)

Status: (Passed) 2011-05-19 - Effective on 9/1/11 [HB15 Detail]

Download: Texas-2011-HB15-Engrossed.html

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By: Miller of Erath, Callegari, Harless, H.B. No. 15
Kolkhorst, Patrick, et al.

A BILL TO BE ENTITLED
AN ACT
relating to providing a sonogram before an abortion; providing
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 171, Health and Safety Code, is amended
by adding Subchapter C to read as follows:
SUBCHAPTER C. PERFORMANCE OF SONOGRAM BEFORE ABORTION
Sec. 171.051. DEFINITIONS. In this subchapter:
(1) "Abortion provider" means a facility where an
abortion is performed, including the office of a physician and a
facility licensed under Chapter 241, 243, or 245.
(2) "Medical emergency" means a life-threatening
physical condition aggravated by, caused by, or arising from a
pregnancy that, as certified by a physician, places the woman in
danger of death or a serious risk of substantial impairment of a
major bodily function unless an abortion is performed.
(3) "Sonogram" means the use of ultrasonic waves for
diagnostic or therapeutic purposes, specifically to monitor an
unborn child.
Sec. 171.052. INFORMATION REGARDING SONOGRAM PROVIDERS.
(a) Not more than 72 hours and not less than 24 hours before an
abortion begins, the physician who is to perform the abortion shall
in person and in a private, confidential setting:
(1) provide the pregnant woman on whom the abortion is
to be performed with the informational materials described by
Section 171.014 and orally provide the woman the information
required by Section 171.012(a)(1);
(2) orally inform the pregnant woman on whom the
abortion is to be performed that the materials required by Section
171.014:
(A) are provided by the Department of State
Health Services;
(B) are accessible on an Internet website
sponsored by the department;
(C) describe the unborn child; and
(D) list agencies that offer alternatives to
abortion; and
(3) provide the pregnant woman on whom the abortion is
to be performed with a comprehensive list of health care providers,
facilities, and clinics that offer obstetric sonogram services at
no cost to the pregnant woman and that do not:
(A) perform abortions or provide
abortion-related services;
(B) make referrals to any abortion provider; or
(C) affiliate or contract with any entity that
performs abortions, provides abortion-related services, or makes
referrals to any abortion provider.
(b) The department shall compile the list described by
Subsection (a)(3) and shall make the list available at no cost. The
department shall provide appropriate quantities of the list to an
abortion provider and to any other person. The list must include
the name, address, hours of operation, and telephone number for
each health care provider, facility, and clinic that satisfies the
requirements of Subsection (a)(3) and be:
(1) arranged by county;
(2) printed in a typeface large enough to be clearly
legible; and
(3) published in English and Spanish.
(c) The department is not required to republish the list
described by Subsection (a)(3) because of a change in information
described by Subsection (b) unless five percent or more of the
information contained in the list changes.
Sec. 171.053. PERFORMANCE OF SONOGRAM. (a) Not more than
72 hours and not less than 24 hours before the abortion begins and
before any sedative or anesthesia is administered to the pregnant
woman, the physician who is to perform the abortion or a sonographer
certified by a national registry of medical sonographers shall:
(1) perform a live, real-time obstetric sonogram on
the pregnant woman on whom the abortion is to be performed;
(2) display the live, real-time obstetric sonogram
images in a quality consistent with current medical practice in a
manner that the pregnant woman may view them;
(3) provide, in a manner understandable to a
layperson, a simultaneous verbal explanation of the results of the
live, real-time sonogram images, including a medical description of
the dimensions of the embryo or fetus, the presence of cardiac
activity, and the presence of arms, legs, external members, and
internal organs; and
(4) make audible the live, real-time heart
auscultation, when present, for the pregnant woman to hear, in a
quality consistent with current medical practice, and provide, in a
manner understandable to a layperson, a simultaneous verbal
explanation of the live, real-time heart auscultation.
(b) During a visit made to a facility to fulfill the
requirements of Subsection (a), the facility and any person at the
facility may not accept any form of payment, deposit, or exchange or
make any financial agreement for an abortion or abortion-related
services other than for payment of a service required by Subsection
(a). The amount charged for a service required by Subsection (a)
may not exceed the reimbursement rate established for the service
by the Health and Human Services Commission for statewide medical
reimbursement programs.
Sec. 171.054. CERTIFICATION OF SONOGRAM. (a) After the
live, real-time sonogram and the live, real-time heart auscultation
required under Section 171.053 and before any sedative or
anesthesia is administered to the pregnant woman and before the
abortion begins, the pregnant woman on whom the abortion is to be
performed shall certify by her signature that not more than 72 hours
and not less than 24 hours before the abortion begins:
(1) she was provided with a live, real-time sonogram
as required under Section 171.053;
(2) she had the opportunity to view the live,
real-time sonogram images as required under Section 171.053;
(3) she was provided, in a manner understandable to a
layperson, a simultaneous verbal explanation of the results of the
sonogram images as required under Section 171.053; and
(4) she heard the live, real-time heart auscultation,
when present, as required under Section 171.053.
(b) The department shall prepare the form to be used to make
the certification required under Subsection (a). The form must
include a space for the pregnant woman's signature and space for the
woman to sign her initials beside each of the following statements:
(1) "Not more than 72 hours and not less than 24 hours
before my abortion is to begin and at the facility where my abortion
is to be performed, the doctor who is performing an abortion on me
or a sonographer certified by a national registry of medical
sonographers performed a sonogram on me and displayed the live,
real-time sonogram images so that I could view them.";
(2) "The doctor who is performing an abortion on me or
a sonographer certified by a national registry of medical
sonographers has given me, in an understandable manner, a
simultaneous verbal explanation of the results of the live,
real-time sonogram images, including a medical description of the
dimensions of the embryo or fetus, the presence of cardiac
activity, and the presence of arms, legs, external members, and
internal organs."; and
(3) "The doctor performing an abortion on me or a
sonographer certified by a national registry of medical
sonographers has made audible the live, real-time heart activity,
when present, for me to hear. The doctor or sonographer has also
provided, in an understandable manner, a simultaneous verbal
explanation of the live, real-time heart activity."
(c) Before the abortion begins, a copy of the form required
under this section must be:
(1) given to the physician who is to perform the
abortion; and
(2) placed in the pregnant woman's medical records.
(d) A copy of the form required under this section shall be
retained by the abortion provider until:
(1) the seventh anniversary of the date it is signed;
or
(2) if the pregnant woman is a minor, the later of:
(A) the seventh anniversary of the date it is
signed; or
(B) the woman's 21st birthday.
Sec. 171.055. RECEIVING INFORMATION DURING SONOGRAM. The
physician and the pregnant woman are not subject to a penalty under
this subchapter solely because the pregnant woman chooses not to
receive the information required to be provided under Section
171.053.
Sec. 171.056. PATERNITY AND CHILD SUPPORT INFORMATION. If,
after being provided with a sonogram and the information required
under this subchapter, the pregnant woman chooses not to have an
abortion, the physician or an agent of the physician shall provide
the pregnant woman with a publication developed by the Title IV-D
agency that provides information about paternity establishment and
child support, including:
(1) the steps necessary for unmarried parents to
establish legal paternity;
(2) the benefits of paternity establishment for
children;
(3) the steps necessary to obtain a child support
order;
(4) the benefits of establishing a legal parenting
order; and
(5) financial and legal responsibilities of
parenting.
Sec. 171.057. EXCEPTION FOR MEDICAL EMERGENCY. (a) A
physician may perform an abortion without providing the sonogram
required under Section 171.053 only in a medical emergency. A
physician who performs an abortion in a medical emergency shall:
(1) include in the patient's medical records a
statement signed by the physician certifying the nature of the
medical emergency; and
(2) not later than the seventh day after the date the
abortion is performed, certify to the Department of State Health
Services the specific medical condition that constituted the
emergency.
(b) The statement required under Subsection (a)(1) shall be
placed in the patient's medical records and shall be kept by the
abortion provider until:
(1) the seventh anniversary of the date the abortion
is performed; or
(2) if the pregnant woman is a minor, the later of:
(A) the seventh anniversary of the date the
abortion is performed; or
(B) the woman's 21st birthday.
Sec. 171.058. VIOLATION. (a) A physician who performs an
abortion in violation of this subchapter engages in unprofessional
conduct for which the physician's license shall be revoked under
Chapter 164, Occupations Code.
(b) The department, in accordance with the procedures
established under Chapter 241, 243, or 245, as applicable, shall
revoke the license of an abortion provider that violates this
subchapter.
SECTION 2. Subchapter A, Chapter 241, Health and Safety
Code, is amended by adding Section 241.007 to read as follows:
Sec. 241.007. COMPLIANCE WITH CERTAIN REQUIREMENTS
REGARDING SONOGRAM BEFORE ABORTION. A hospital shall comply with
Subchapter C, Chapter 171.
SECTION 3. Subchapter A, Chapter 243, Health and Safety
Code, is amended by adding Section 243.017 to read as follows:
Sec. 243.017. COMPLIANCE WITH CERTAIN REQUIREMENTS
REGARDING SONOGRAM BEFORE ABORTION. An ambulatory surgical center
shall comply with Subchapter C, Chapter 171.
SECTION 4. Section 245.006(a), Health and Safety Code, is
amended to read as follows:
(a) The department shall [may] inspect an abortion facility
at reasonable times as necessary to ensure compliance with this
chapter and Subchapter C, Chapter 171.
SECTION 5. Chapter 245, Health and Safety Code, is amended
by adding Section 245.024 to read as follows:
Sec. 245.024. COMPLIANCE WITH CERTAIN REQUIREMENTS
REGARDING SONOGRAM BEFORE ABORTION. An abortion facility shall
comply with Subchapter C, Chapter 171.
SECTION 6. Subchapter B, Chapter 164, Occupations Code, is
amended by adding Section 164.0551 to read as follows:
Sec. 164.0551. COMPLIANCE WITH CERTAIN REQUIREMENTS
REGARDING SONOGRAM BEFORE ABORTION. A physician shall comply with
Subchapter C, Chapter 171, Health and Safety Code.
SECTION 7. The change in law made by this Act applies only
to an abortion performed on or after the 60th day after the
effective date of this Act. An abortion performed before the 60th
day after the effective date of this Act is governed by the law in
effect on the date the abortion was performed, and the former law is
continued in effect for that purpose.
SECTION 8. The Department of State Health Services shall
compile the list required by Section 171.052, Health and Safety
Code, as added by this Act, not later than the 60th day after the
effective date of this Act.
SECTION 9. The Title IV-D agency shall publish the
information required by Section 171.056, Health and Safety Code, as
added by this Act, not later than the 60th day after the effective
date of this Act.
SECTION 10. (a) The legislature finds the following
purposes and justifications for this law:
(1) States have "a substantial government interest
justifying a requirement that a woman be apprised of the health
risks of abortion and childbirth," including mental health
considerations. Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 882 (1992). "It cannot be questioned that
psychological well-being is a facet of health. Nor can it be
doubted that most women considering an abortion would deem the
impact on the fetus relevant, if not dispositive, to the decision.
In attempting to ensure that a woman apprehend the full
consequences of her decision, the State furthers the legitimate
purpose of reducing the risk that a woman may elect an abortion,
only to discover later, with devastating psychological
consequences, that her decision was not fully informed. If the
information the State requires to be made available to the woman is
truthful and not misleading, the requirement may be permissible."
Id.
(2) The consideration of an abortion's consequences to
a fetus is not contingent on the consideration of the health of the
mother. Rather, those considerations provide a stand-alone basis
for informed consent legislation. There is "no reason why the State
may not require doctors to inform a woman seeking an abortion of the
availability of materials relating to the consequences to the
fetus, even when those consequences have no direct relation to her
health." Id.
(3) In addition to the state's substantial interest in
promoting the health and well-being of a pregnant woman, the state
also has a "profound interest in potential life" of the unborn
fetus. Id. at 878; see also Gonzales v. Carhart, 550 U.S. 124, 125
(2007) (recognizing that the state has a legitimate interest "in
protecting the life of the fetus that may become a child").
(4) A statute furthering a state's "legitimate goal of
protecting the life of the unborn" by "ensuring a decision that is
mature and informed" is permitted "even when in so doing the State
expresses a preference for childbirth over abortion." Planned
Parenthood, 505 U.S. at 883.
(5) In addition, the Supreme Court has held that
"[r]egulations which do no more than create a structural mechanism
by which the State, or the parent or guardian of a minor, may
express profound respect for the life of the unborn are permitted,
if they are not a substantial obstacle to the woman's exercise of
the right to choose." Id. at 877. "Unless it has that effect on her
right of choice, a state measure designed to persuade her to choose
childbirth over abortion will be upheld if reasonably related to
that goal." Id. at 878.
(6) "The State also has an interest in protecting the
integrity and ethics of the medical profession." Washington v.
Glucksberg, 521 U.S. 702, 731 (1997). An abortion performed
without a medical professional's full disclosure to a pregnant
woman of the impact on the fetus and the potential health
consequences of an abortion could undermine the woman's trust in
medical professionals. This Act is intended to protect the
integrity and ethics of the medical profession by establishing
clear requirements that are designed to ensure the health and
informed consent of a pregnant woman who is contemplating an
abortion.
(b) Therefore, it is the legislature's intent in enacting
this Act to further the purposes stated in Subsection (a) of this
section.
(c) Furthermore, with regard to the severability clause
contained in this Act, the legislature finds:
(1) As the United States Supreme Court has explained,
when reviewing an abortion statute, "the proper means to consider
exceptions is by as-applied challenge." Gonzales, 550 U.S. at 167.
Moreover, when reviewing abortion statutes, "[t]he latitude given
facial challenges in the First Amendment context is inapplicable."
Id. See also U.S. v. Salerno, 481 U.S. 739, 745 (1987) ("The fact
that [a legislative Act] might operate unconstitutionally under
some conceivable set of circumstances is insufficient to render it
wholly invalid, since we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment.").
(2) The Unites States Supreme Court has made the role
of the court clear when reviewing statutes: "It is neither our
obligation nor within our traditional institutional role to resolve
questions of constitutionality with respect to each potential
situation that might develop." Gonzales, 550 U.S. at 168. "[I]t
would indeed be undesirable for this Court to consider every
conceivable situation which might possibly arise in the application
of complex and comprehensive legislation." Id. (quoting U.S. v.
Raines, 362 U.S. 17, 21 (1960) (internal quotation marks omitted)).
"For this reason, '[a]s-applied challenges are the basic building
blocks of constitutional adjudication.'" Gonzales, 550 U.S. at 168
(quoting Richard Fallon, As-Applied and Facial Challenges and
Third-Party Standing, 113 Harv. L. Rev. 1321, 128 (2000)).
(3) Severability must be considered not only with
respect to certain clauses or provisions of a statute but also with
respect to applications of a statute or provision when some of the
applications are unconstitutional. See Norman J. Singer, Statutes
and Statutory Construction, Section 44.02 (4th ed. rev. 1986).
(4) Severability clauses in federal statutes treat
severability of clauses and applications the same. See, e.g., 2
U.S.C. Section 1438 ("If any provision of this chapter or the
application of such provision to any person or circumstance is held
to be invalid, the remainder of this chapter and the application of
the provisions of the remainder to any person or circumstance shall
not be affected thereby."); Section 1103 of the Social Security Act
(42 U.S.C. Section 1303); Section 15 of the National Labor
Relations Act (29 U.S.C. Section 165); Section 11 of the Railway
Labor Act (45 U.S.C. Section 161); Section 14 of the Agricultural
Adjustment Act (7 U.S.C. Section 614).
(5) Courts have treated severability of clauses and
applications the same. See Robert L. Stern, Separability and
Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76
(1937).
SECTION 11. The purposes of this Act are to:
(1) protect the physical and psychological health and
well-being of pregnant women;
(2) provide pregnant women access to information that
would allow a pregnant woman to consider the impact an abortion
would have on the pregnant woman's fetus; and
(3) protect the integrity and ethical standards of the
medical profession.
SECTION 12. Every provision in this Act and every
application of the provisions in this Act are severable from each
other. If any application of any provision in this Act to any
person or group of persons or circumstances is found by a court to
be invalid, the remainder of this Act and the application of the
Act's provisions to all other persons and circumstances may not be
affected. All constitutionally valid applications of this Act
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 Act invalid in a large or substantial fraction of relevant
cases, the remaining valid applications shall be severed and
allowed to remain in force.
SECTION 13. Each provision of this Act and every
application of this Act's provisions to any person or circumstance
shall be construed as severable as a matter of state law. If any
application of this Act to any person or circumstance is held
invalid by any court, the valid applications shall be severed and
remain in force.
SECTION 14. 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, 2011.