Bill Text: TX HB2 | 2013 | 83rd Legislature 2nd Special Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the regulation of abortion procedures, providers, and facilities; providing penalties.

Status: (Passed) 2013-07-18 - See remarks for effective date [HB2 Detail]

Download: Texas-2013-HB2-Introduced.html
  83S20017 JSC-F
 
  By: Laubenberg H.B. No. 2
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of abortion procedures, providers, and
  facilities; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  (a)  The findings indicate that:
               (1)  substantial medical evidence recognizes that an
  unborn child is capable of experiencing pain by not later than 20
  weeks after fertilization;
               (2)  the state has a compelling state interest in
  protecting the lives of unborn children from the stage at which
  substantial medical evidence indicates that these children are
  capable of feeling pain;
               (3)  the compelling state interest in protecting the
  lives of unborn children from the stage at which substantial
  medical evidence indicates that an unborn child is capable of
  feeling pain is intended to be separate from and independent of the
  compelling state interest in protecting the lives of unborn
  children from the stage of viability, and neither state interest is
  intended to replace the other; and
               (4)  restricting elective abortions at or later than 20
  weeks post-fertilization, as provided by this Act, does not impose
  an undue burden or a substantial obstacle on a woman's ability to
  have an abortion because:
                     (A)  the woman has adequate time to decide whether
  to have an abortion in the first 20 weeks after fertilization; and
                     (B)  this Act does not apply to abortions that are
  necessary to avert the death or substantial and irreversible
  physical impairment of a major bodily function of the pregnant
  woman or abortions that are performed on unborn children with
  severe fetal abnormalities.
         (b)  The legislature intends that every application of this
  statute to every individual woman shall be severable from each
  other. In the unexpected event that the application of this statute
  is found to impose an impermissible undue burden on any pregnant
  woman or group of pregnant women, the application of the statute to
  those women shall be severed from the remaining applications of the
  statute that do not impose an undue burden, and those remaining
  applications shall remain in force and unaffected, consistent with
  Section 10 of this Act.
         SECTION 2.  Subchapter A, Chapter 171, Health and Safety
  Code, is amended by adding Section 171.0031 to read as follows:
         Sec. 171.0031.  REQUIREMENTS OF PHYSICIAN; OFFENSE. (a)  A
  physician performing or inducing an abortion:
               (1)  must, on the date the abortion is performed or
  induced, have active admitting privileges at a hospital that:
                     (A)  is located not further than 30 miles from the
  location at which the abortion is performed or induced; and
                     (B)  provides obstetrical or gynecological health
  care services; and
               (2)  shall provide the pregnant woman with:
                     (A)  a telephone number by which the pregnant
  woman may reach the physician, or other health care personnel
  employed by the physician or by the facility at which the abortion
  was performed or induced with access to the woman's relevant
  medical records, 24 hours a day to request assistance for any
  complications that arise from the performance or induction of the
  abortion or ask health-related questions regarding the abortion;
  and
                     (B)  the name and telephone number of the nearest
  hospital to the home of the pregnant woman at which an emergency
  arising from the abortion would be treated.
         (b)  A physician who violates Subsection (a) commits an
  offense. An offense under this section is a Class A misdemeanor
  punishable by a fine only, not to exceed $4,000.
         SECTION 3.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapters C and D to read as follows:
  SUBCHAPTER C.  ABORTION PROHIBITED AT OR AFTER 20 WEEKS
  POST-FERTILIZATION
         Sec. 171.041.  SHORT TITLE. This subchapter may be cited as
  the Preborn Pain Act.
         Sec. 171.042.  DEFINITIONS. In this subchapter:
               (1)  "Post-fertilization age" means the age of the
  unborn child as calculated from the fusion of a human spermatozoon
  with a human ovum.
               (2)  "Severe fetal abnormality" has the meaning
  assigned by Section 285.202.
         Sec. 171.043.  DETERMINATION OF POST-FERTILIZATION AGE
  REQUIRED. Except as otherwise provided by Section 171.046, a
  physician may not perform or induce or attempt to perform or induce
  an abortion without, prior to the procedure:
               (1)  making a determination of the probable
  post-fertilization age of the unborn child; or
               (2)  possessing and relying on a determination of the
  probable post-fertilization age of the unborn child made by another
  physician.
         Sec. 171.044.  ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
  POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
  Section 171.046, a person may not perform or induce or attempt to
  perform or induce an abortion on a woman if it has been determined,
  by the physician performing, inducing, or attempting to perform or
  induce the abortion or by another physician on whose determination
  that physician relies, that the probable post-fertilization age of
  the unborn child is 20 or more weeks.
         Sec. 171.045.  METHOD OF ABORTION. (a)  This section
  applies only to an abortion authorized under Section 171.046(a)(1)
  or (2) in which:
               (1)  the probable post-fertilization age of the unborn
  child is 20 or more weeks; or
               (2)  the probable post-fertilization age of the unborn
  child has not been determined but could reasonably be 20 or more
  weeks.
         (b)  Except as otherwise provided by Section 171.046(a)(3),
  a physician performing an abortion under Subsection (a) shall
  terminate the pregnancy in the manner that, in the physician's
  reasonable medical judgment, provides the best opportunity for the
  unborn child to survive.
         Sec. 171.046.  EXCEPTIONS. (a)  The prohibitions and
  requirements under Sections 171.043, 171.044, and 171.045(b) do not
  apply to an abortion performed if there exists a condition that, in
  the physician's reasonable medical judgment, so complicates the
  medical condition of the woman that, to avert the woman's death or a
  serious risk of substantial and irreversible physical impairment of
  a major bodily function, other than a psychological condition, it
  necessitates, as applicable:
               (1)  the immediate abortion of her pregnancy without
  the delay necessary to determine the probable post-fertilization
  age of the unborn child;
               (2)  the abortion of her pregnancy even though the
  post-fertilization age of the unborn child is 20 or more weeks; or
               (3)  the use of a method of abortion other than a method
  described by Section 171.045(b).
         (b)  A physician may not take an action authorized under
  Subsection (a) if the risk of death or a substantial and
  irreversible physical impairment of a major bodily function arises
  from a claim or diagnosis that the woman will engage in conduct that
  may result in her death or in substantial and irreversible physical
  impairment of a major bodily function.
         (c)  The prohibitions and requirements under Sections
  171.043, 171.044, and 171.045(b) do not apply to an abortion
  performed on an unborn child who has a severe fetal abnormality.
         Sec. 171.047.  PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
  (a)  Except as otherwise provided by this section, in a civil or
  criminal proceeding or action involving an act prohibited under
  this subchapter, the identity of the woman on whom an abortion has
  been performed or induced or attempted to be performed or induced is
  not subject to public disclosure if the woman does not give consent
  to disclosure.
         (b)  Unless the court makes a ruling under Subsection (c) to
  allow disclosure of the woman's identity, the court shall issue
  orders to the parties, witnesses, and counsel and shall direct the
  sealing of the record and exclusion of individuals from courtrooms
  or hearing rooms to the extent necessary to protect the woman's
  identity from public disclosure.
         (c)  A court may order the disclosure of information that is
  confidential under this section if:
               (1)  a motion is filed with the court requesting
  release of the information and a hearing on that request;
               (2)  notice of the hearing is served on each interested
  party; and
               (3)  the court determines after the hearing and an in
  camera review that disclosure is essential to the administration of
  justice and there is no reasonable alternative to disclosure.
         Sec. 171.048.  CONSTRUCTION OF SUBCHAPTER. (a)   This
  subchapter shall be construed, as a matter of state law, to be
  enforceable up to but no further than the maximum possible extent
  consistent with federal constitutional requirements, even if that
  construction is not readily apparent, as such constructions are
  authorized only to the extent necessary to save the subchapter from
  judicial invalidation.  Judicial reformation of statutory language
  is explicitly authorized only to the extent necessary to save the
  statutory provision from invalidity.
         (b)  If any court determines that a provision of this
  subchapter is unconstitutionally vague, the court shall interpret
  the provision, as a matter of state law, to avoid the vagueness
  problem and shall enforce the provision to the maximum possible
  extent.  If a federal court finds any provision of this subchapter
  or its application to any person, group of persons, or
  circumstances to be unconstitutionally vague and declines to impose
  the saving construction described by this subsection, the Supreme
  Court of Texas shall provide an authoritative construction of the
  objectionable statutory provisions that avoids the constitutional
  problems while enforcing the statute's restrictions to the maximum
  possible extent, and shall agree to answer any question certified
  from a federal appellate court regarding the statute.
         (c)  A state executive or administrative official may not
  decline to enforce this subchapter, or adopt a construction of this
  subchapter in a way that narrows its applicability, based on the
  official's own beliefs about what the state or federal constitution
  requires, unless the official is enjoined by a state or federal
  court from enforcing this subchapter.
         (d)  This subchapter may not be construed to authorize the
  prosecution of or a cause of action to be brought against a woman on
  whom an abortion is performed or induced or attempted to be
  performed or induced in violation of this subchapter.
  SUBCHAPTER D.  ABORTION-INDUCING DRUGS
         Sec. 171.061.  DEFINITIONS. In this subchapter:
               (1)  "Abortion" means the act of using, administering,
  prescribing, or otherwise providing an instrument, a drug, a
  medicine, or any other substance, device, or means with the intent
  to terminate a clinically diagnosable pregnancy of a woman and with
  knowledge that the termination by those means will, with reasonable
  likelihood, cause the death of the woman's unborn child. 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;
                     (C)  remove an ectopic pregnancy; or
                     (D)  treat a maternal disease or illness for which
  a prescribed drug, medicine, or other substance is indicated.
               (2)  "Abortion-inducing drug" means a drug, a medicine,
  or any other substance, including a regimen of two or more drugs,
  medicines, or substances, prescribed, dispensed, or administered
  with the intent of terminating a clinically diagnosable pregnancy
  of a woman and with knowledge that the termination will, with
  reasonable likelihood, cause the death of the woman's unborn child.
  The term includes off-label use of drugs, medicines, or other
  substances known to have abortion-inducing properties that are
  prescribed, dispensed, or administered with the intent of causing
  an abortion, including the Mifeprex regimen. The term does not
  include a drug, medicine, or other substance that may be known to
  cause an abortion but is prescribed, dispensed, or administered for
  other medical reasons.
               (3)  "Final printed label" or "FPL" means the
  informational document approved by the United States Food and Drug
  Administration for an abortion-inducing drug that:
                     (A)  outlines the protocol authorized by that
  agency and agreed to by the drug company applying for authorization
  of the drug by that agency; and
                     (B)  delineates how a drug is to be used according
  to approval by that agency.
               (4)  "Gestational age" means the amount of time that
  has elapsed since the first day of a woman's last menstrual period.
               (5)  "Medical abortion" means the administration or use
  of an abortion-inducing drug to induce an abortion.
               (6)  "Mifeprex regimen," "RU-486 regimen," or "RU-486"
  means the abortion-inducing drug regimen approved by the United
  States Food and Drug Administration that consists of administering
  mifepristone and misoprostol.
               (7)  "Physician" means an individual who is licensed to
  practice medicine in this state, including a medical doctor and a
  doctor of osteopathic medicine.
               (8)  "Pregnant" means the female reproductive
  condition of having an unborn child in a woman's uterus.
               (9)  "Unborn child" means an offspring of human beings
  from conception until birth.
         Sec. 171.062.  ENFORCEMENT BY TEXAS MEDICAL BOARD.
  Notwithstanding Section 171.005, the Texas Medical Board shall
  enforce this subchapter.
         Sec. 171.063.  DISTRIBUTION OF ABORTION-INDUCING DRUG.
  (a)  A person may not knowingly give, sell, dispense, administer,
  provide, or prescribe an abortion-inducing drug to a pregnant woman
  for the purpose of inducing an abortion in the pregnant woman or
  enabling another person to induce an abortion in the pregnant woman
  unless:
               (1)  the person who gives, sells, dispenses,
  administers, provides, or prescribes the abortion-inducing drug is
  a physician; and
               (2)  except as otherwise provided by Subsection (b),
  the provision, prescription, or administration of the
  abortion-inducing drug satisfies the protocol tested and
  authorized by the United States Food and Drug Administration as
  outlined in the final printed label of the abortion-inducing drug.
         (b)  A person may provide, prescribe, or administer the
  abortion-inducing drug in the dosage amount prescribed by the
  clinical management guidelines defined by the American Congress of
  Obstetricians and Gynecologists Practice Bulletin as those
  guidelines existed on January 1, 2013.
         (c)  Before the physician gives, sells, dispenses,
  administers, provides, or prescribes an abortion-inducing drug,
  the physician must examine the pregnant woman and document, in the
  woman's medical record, the gestational age and intrauterine
  location of the pregnancy.
         (d)  The physician who gives, sells, dispenses, administers,
  provides, or prescribes an abortion-inducing drug shall provide the
  pregnant woman with:
               (1)  a copy of the final printed label of that
  abortion-inducing drug; and
               (2)  a telephone number by which the pregnant woman may
  reach the physician, or other health care personnel employed by the
  physician or by the facility at which the abortion was performed
  with access to the woman's relevant medical records, 24 hours a day
  to request assistance for any complications that arise from the
  administration or use of the drug or ask health-related questions
  regarding the administration or use of the drug.
         (e)  The physician who gives, sells, dispenses, administers,
  provides, or prescribes the abortion-inducing drug, or the
  physician's agent, must schedule a follow-up visit for the woman to
  occur not more than 14 days after the administration or use of the
  drug. At the follow-up visit, the physician must:
               (1)  confirm that the pregnancy is completely
  terminated; and
               (2)  assess the degree of bleeding.
         (f)  The physician who gives, sells, dispenses, administers,
  provides, or prescribes the abortion-inducing drug, or the
  physician's agent, shall make a reasonable effort to ensure that
  the woman returns for the scheduled follow-up visit under
  Subsection (e). The physician or the physician's agent shall
  document a brief description of any effort made to comply with this
  subsection, including the date, time, and name of the person making
  the effort, in the woman's medical record.
         (g)  If a physician gives, sells, dispenses, administers,
  provides, or prescribes an abortion-inducing drug to a pregnant
  woman for the purpose of inducing an abortion as authorized by this
  section and the physician knows that the woman experiences a
  serious adverse event, as defined by the MedWatch Reporting System,
  during or after the administration or use of the drug, the physician
  shall report the event to the United States Food and Drug
  Administration through the MedWatch Reporting System not later than
  the third day after the date the physician learns that the event
  occurred.
         Sec. 171.064.  ADMINISTRATIVE PENALTY. (a)  The Texas
  Medical Board may take disciplinary action under Chapter 164,
  Occupations Code, or assess an administrative penalty under
  Subchapter A, Chapter 165, Occupations Code, against a person who
  violates Section 171.063.
         (b)  A penalty may not be assessed under this section against
  a pregnant woman who receives a medical abortion.
         SECTION 4.  Section 245.010(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The rules must contain minimum standards to protect the
  health and safety of a patient of an abortion facility and must
  contain provisions requiring compliance with the requirements of
  Subchapter B, Chapter 171. On and after September 1, 2014, the
  minimum standards for an abortion facility must be equivalent to
  the minimum standards adopted under Section 243.010 for ambulatory
  surgical centers.
         SECTION 5.  Section 245.011(c), Health and Safety Code, is
  amended to read as follows:
         (c)  The report must include:
               (1)  whether the abortion facility at which the
  abortion is performed is licensed under this chapter;
               (2)  the patient's year of birth, race, marital status,
  and state and county of residence;
               (3)  the type of abortion procedure;
               (4)  the date the abortion was performed;
               (5)  whether the patient survived the abortion, and if
  the patient did not survive, the cause of death;
               (6)  the probable post-fertilization age of the unborn
  child [period of gestation] based on the best medical judgment of
  the attending physician at the time of the procedure;
               (7)  the date, if known, of the patient's last menstrual
  cycle;
               (8)  the number of previous live births of the patient;
  and
               (9)  the number of previous induced abortions of the
  patient.
         SECTION 6.  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 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, authorizing the
  minor to consent to the abortion, unless the physician concludes
  that on the basis of the physician's good faith clinical judgment, a
  condition exists that complicates the medical condition of the
  pregnant minor and necessitates the immediate abortion of her
  pregnancy to avert her death or to avoid a serious risk of
  substantial impairment of a major bodily function and that there is
  insufficient time to obtain the consent of the child's parent,
  managing conservator, or legal guardian; or
               (20)  performs or induces or attempts to perform or
  induce an abortion in violation of Subchapter C, Chapter 171,
  Health and Safety Code.
         SECTION 7.  Section 164.055(b), Occupations Code, is amended
  to read as follows:
         (b)  The sanctions provided by Subsection (a) are in addition
  to any other grounds for refusal to admit persons to examination
  under this subtitle or to issue a license or renew a license to
  practice medicine under this subtitle. The criminal penalties
  provided by Section 165.152 do not apply to a violation of Section
  170.002 or Subchapter C, Chapter 171, Health and Safety Code.
         SECTION 8.  Effective September 1, 2014, Section 245.010(c),
  Health and Safety Code, is repealed.
         SECTION 9.  This Act may not be construed to repeal, by
  implication or otherwise, Section 164.052(a)(18), Occupations
  Code, Section 170.002, Health and Safety Code, or any other
  provision of Texas law regulating or restricting abortion not
  specifically addressed by this Act. An abortion that complies with
  this Act but violates any other law is unlawful. An abortion that
  complies with another state law but violates this Act is unlawful as
  provided in this Act.
         SECTION 10.  (a)  If some or all of the provisions of this
  Act are ever temporarily or permanently restrained or enjoined by
  judicial order, all other provisions of Texas law regulating or
  restricting abortion shall be enforced as though the restrained or
  enjoined provisions had not been adopted; provided, however, that
  whenever the temporary or permanent restraining order or injunction
  is stayed or dissolved, or otherwise ceases to have effect, the
  provisions shall have full force and effect.
         (b)  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, are severable from
  each other. 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, the remaining applications of that provision to all other
  persons and circumstances shall be severed and may not be affected.
  All constitutionally valid applications of this 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 to impose an undue burden in a large or substantial
  fraction of relevant cases, the applications that do not present an
  undue burden shall be severed from the remaining provisions and
  shall remain in force, and shall be treated as if the legislature
  had enacted a statute limited to the persons, group of persons, or
  circumstances for which the statute's application does not present
  an undue burden. The legislature further declares that it would
  have passed this Act, and each provision, section, subsection,
  sentence, clause, phrase, or word, and all constitutional
  applications 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 unconstitutional
  or to represent an undue burden.
         (c)  If Subchapter C, Chapter 171, Health and Safety Code, as
  added by this Act, prohibiting abortions performed on an unborn
  child 20 or more weeks after fertilization is found by any court to
  be invalid or to impose an undue burden as applied to any person,
  group of persons, or circumstances, the prohibition shall apply to
  that person or group of persons or circumstances on the earliest
  date on which the subchapter can be constitutionally applied.
         (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.
         SECTION 11.  (a)  The executive commissioner of the Health
  and Human Services Commission shall adopt the standards required by
  Section 245.010, Health and Safety Code, as amended by this Act, not
  later than January 1, 2014.
         (b)  A facility licensed under Chapter 245, Health and Safety
  Code, is not required to comply with the standards adopted under
  Section 245.010, Health and Safety Code, as amended by this Act,
  before September 1, 2014.
         SECTION 12.  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.
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