Bill Text: TX HB23 | 2021 | 87th Legislature 3rd Special Session | Introduced

Bill Title: Relating to prohibiting abortion and protecting the rights of an unborn child and to criminal liability for, justification for, and defenses to prohibited conduct.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2021-09-09 - Filed [HB23 Detail]

Download: Texas-2021-HB23-Introduced.html
 
 
  By: Slaton H.B. No. 23
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to prohibiting abortion and protecting the rights of an
  unborn child and to criminal liability for, justification for, and
  defenses to prohibited conduct.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act may be cited as the Abolition of
  Abortion through Equal Protection for All Unborn Children Act.
         SECTION 2.  Acting on Section 1, Article I, Texas
  Constitution, which provides that "Texas is a free and independent
  State, subject only to the Constitution of the United States," and
  acknowledging the sanctity of innocent human life created in the
  image of God, which should be equally protected from fertilization
  to natural death, the purpose of this Act is:
               (1)  to ensure the right to life and equal protection of
  the laws to all unborn children from the moment of fertilization;
               (2)  to establish that a living human unborn child,
  from the moment of fertilization and at every stage of development,
  is entitled to the same rights, powers, and privileges as are
  secured or granted by the laws of this state to any other human
  person;
               (3)  to rescind all licenses to kill unborn children by
  repealing discriminatory provisions;
               (4)  to equally apply the law to all persons, including
  legal defenses, immunities, and justifications, such as duress,
  necessity, and mistake of fact;
               (5)  to recognize that the United States Constitution
  and the laws of the United States enacted in pursuance of that
  constitution are the supreme law of the land;
               (6)  as legislators, to fulfill our oaths of office to
  the United States Constitution, so help us God, by disavowing the
  legal fiction that the constitution prohibits this state from
  exercising its reserved police powers to prohibit and criminalize
  homicide and from exercising its constitutional and God-given
  duties to provide equal protection to all persons within its
  jurisdiction;
               (7)  to follow Justice Thomas's statement in June
  Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103 (2020) that
  "[t]he constitution does not constrain the States' ability to
  regulate or even prohibit abortion"; and
               (8)  to therefore treat as void and of no effect any and
  all federal statutes, regulations, treaties, orders, and court
  rulings that would deprive an unborn child of the right to life or
  prohibit the equal protection of that right.
         SECTION 3.  The heading to Section 151.002, Family Code, is
  amended to read as follows:
         Sec. 151.002.  RIGHTS OF A LIVING CHILD [AFTER AN ABORTION OR
  PREMATURE BIRTH; CIVIL PENALTY; CRIMINAL OFFENSE].
         SECTION 4.  Section 151.002(a), Family Code, is amended to
  read as follows:
         (a)  A living human child, from the moment of fertilization
  on fusion of a human spermatozoon with a human ovum, [born alive
  after an abortion or premature birth] is entitled to the same
  rights, powers, and privileges as are secured or granted by the laws
  of this state to any other human child [born alive after the normal
  gestation period].
         SECTION 5.  Subchapter B, Chapter 402, Government Code, is
  amended by adding Section 402.0375 to read as follows:
         Sec. 402.0375.  ABORTION PROHIBITION ENFORCEMENT. The
  attorney general shall monitor this state's enforcement of Chapters
  19 and 22, Penal Code, in relation to abortion. The attorney
  general shall direct a state agency to enforce those laws,
  regardless of any contrary federal statute, regulation, treaty,
  order, or court decision.
         SECTION 6.  The heading to Chapter 370, Local Government
  Code, is amended to read as follows:
  CHAPTER 370. MISCELLANEOUS PROVISIONS RELATING TO [MUNICIPAL AND
  COUNTY] HEALTH AND PUBLIC SAFETY FOR MORE THAN ONE TYPE OF LOCAL
  GOVERNMENT
         SECTION 7.  Chapter 370, Local Government Code, is amended
  by adding Section 370.007 to read as follows:
         Sec. 370.007.  ABORTION PROHIBITION ENFORCEMENT. The
  governing body of a political subdivision of this state shall
  ensure that the political subdivision enforces Chapters 19 and 22,
  Penal Code, in relation to abortion, regardless of any contrary
  federal statute, regulation, treaty, order, or court decision.
         SECTION 8.  Section 7.02(a), Penal Code, is amended to read
  as follows:
         (a)  A person is criminally responsible for an offense
  committed by the conduct of another if:
               (1)  acting with the kind of culpability required for
  the offense, the actor [he] causes or aids an innocent or
  nonresponsible person to engage in conduct prohibited by the
  definition of the offense;
               (2)  acting with intent to promote or assist the
  commission of the offense, the actor [he] solicits, encourages,
  directs, aids, or attempts to aid the other person to commit the
  offense; or
               (3)  having a legal duty to prevent commission of the
  offense and acting with intent to promote or assist its commission,
  the actor [he] fails to make a reasonable effort to prevent
  commission of the offense.
         SECTION 9.  Section 8.02, Penal Code, is amended to read as
  follows:
         Sec. 8.02.  MISTAKE OF FACT. (a) It is a defense to
  prosecution that the actor through mistake formed a reasonable
  belief about a matter of fact if the actor's [his] mistaken belief
  negated the kind of culpability required for commission of the
  offense.
         (b)  Although an actor's mistake of fact may constitute a
  defense to the offense charged, the actor [he] may nevertheless be
  convicted of any lesser included offense of which the actor [he]
  would be guilty if the fact were as the actor [he] believed.
         SECTION 10.  Sections 8.05(a), (b), (d), and (e), Penal
  Code, are amended to read as follows:
         (a)  It is an affirmative defense to prosecution that the
  actor engaged in the proscribed conduct because the actor [he] was
  compelled to do so by threat of imminent death or serious bodily
  injury to the actor [himself] or another person.
         (b)  In a prosecution for an offense that does not constitute
  a felony, it is an affirmative defense to prosecution that the actor
  engaged in the proscribed conduct because the actor [he] was
  compelled to do so by force or threat of force.
         (d)  The defense provided by this section is unavailable if
  the actor intentionally, knowingly, or recklessly placed the actor
  [himself] in a situation in which it was probable that the actor
  [he] would be subjected to compulsion.
         (e)  It is no defense that a person acted at the command or
  persuasion of the actor's [his] spouse, unless the actor [he] acted
  under compulsion that would establish a defense under this section.
         SECTION 11.  Section 9.22, Penal Code, is amended to read as
  follows:
         Sec. 9.22.  NECESSITY. (a) Conduct is justified if:
               (1)  the actor reasonably believes the conduct is
  immediately necessary to avoid imminent harm;
               (2)  the desirability and urgency of avoiding the harm
  clearly outweigh, according to ordinary standards of
  reasonableness, the harm sought to be prevented by the law
  proscribing the conduct; and
               (3)  a legislative purpose to exclude the justification
  claimed for the conduct does not otherwise plainly appear.
         (b)  Conduct is justified if the conduct charged is a lawful
  medical procedure performed by a physician or other licensed health
  care provider and intended to remove an ectopic pregnancy that
  seriously threatens the life of the mother when a reasonable
  alternative to save the lives of both the mother and the unborn
  child is unavailable.
         SECTION 12.  Chapter 19, Penal Code, is amended by adding
  Section 19.07 to read as follows:
         Sec. 19.07.  TESTIMONIAL IMMUNITY FOR OFFENSES INVOLVING
  DEATH OF UNBORN CHILD. (a) This section applies only to an offense
  under this chapter involving the death of an unborn child.
         (b)  A party to an offense to which this section applies may
  be required to provide evidence or testify about the offense.
         (c)  A party to an offense to which this section applies may
  not be prosecuted for any offense about which the party is required
  to provide evidence or testify, and the evidence and testimony may
  not be used against the party in any adjudicatory proceeding except
  a prosecution for aggravated perjury. For purposes of this
  subsection, "adjudicatory proceeding" means a proceeding before a
  court or any other agency of government in which the legal rights,
  powers, duties, or privileges of specified parties are determined.
         SECTION 13.  Chapter 22, Penal Code, is amended by adding
  Section 22.13 to read as follows:
         Sec. 22.13.  TESTIMONIAL IMMUNITY FOR OFFENSES INVOLVING
  INJURY TO UNBORN CHILD. (a) This section applies only to an
  offense under this chapter involving bodily injury to an unborn
  child.
         (b)  A party to an offense to which this section applies may
  be required to provide evidence or testify about the offense.
         (c)  A party to an offense to which this section applies may
  not be prosecuted for any offense about which the party is required
  to provide evidence or testify, and the evidence and testimony may
  not be used against the party in any adjudicatory proceeding except
  a prosecution for aggravated perjury. For purposes of this
  subsection, "adjudicatory proceeding" means a proceeding before a
  court or any other agency of government in which the legal rights,
  powers, duties, or privileges of specified parties are determined.
         SECTION 14.  Section 38.063(e-1), Education Code, is amended
  to read as follows:
         (e-1)  A grant under this section may not be given to a
  nonprofit organization that offers reproductive services,
  contraceptive services, counseling, or referrals, or abortion [any
  other] services [that require a license under Chapter 245, Health
  and Safety Code,] or that is affiliated with a nonprofit
  organization that is an abortion provider [licensed under Chapter
  245, Health and Safety Code].
         SECTION 15.  Section 161.006(b), Family Code, is amended to
  read as follows:
         (b)  In this code, "abortion" means the act of using or
  prescribing an instrument, a drug, a medicine, or any other
  substance, device, or means with the intent to cause the death of an
  unborn child of a woman known to be pregnant. The term does not
  include birth control devices or oral contraceptives. An act is not
  an abortion if the act is done with the intent to:
               (1)  save the life or preserve the health of an unborn
  child;
               (2)  remove a dead, unborn child whose death was caused
  by spontaneous abortion; or
               (3)  remove an ectopic pregnancy that seriously
  threatens the life of the mother when a reasonable alternative to
  save the lives of both the mother and the unborn child is
  unavailable [has the meaning assigned by Section 245.002, Health
  and Safety Code].
         SECTION 16.  Section 266.010(a), Family Code, is amended to
  read as follows:
         (a)  A foster child who is at least 16 years of age may
  consent to the provision of medical care[, except as provided by
  Chapter 33,] if the court with continuing jurisdiction determines
  that the child has the capacity to consent to medical care. If the
  child provides consent by signing a consent form, the form must be
  written in language the child can understand.
         SECTION 17.  Section 501.065, Government Code, is amended to
  read as follows:
         Sec. 501.065.  CONSENT TO MEDICAL, DENTAL, PSYCHOLOGICAL,
  AND SURGICAL TREATMENT. An inmate who is younger than 18 years of
  age and is confined in a facility operated by or under contract with
  the department may, in accordance with procedures established by
  the department, consent to medical, dental, psychological, and
  surgical treatment for the inmate by a licensed health care
  practitioner, or a person under the direction of a licensed health
  care practitioner[, unless the treatment would constitute a
  prohibited practice under Section 164.052(a)(19), Occupations
  Code].
         SECTION 18.  Sections 2272.001(1) and (2), Government Code,
  as added by Chapter 501 (S.B. 22), Acts of the 86th Legislature,
  Regular Session, 2019, are amended to read as follows:
               (1)  "Abortion" means the act of using or prescribing
  an instrument, a drug, a medicine, or any other substance, device,
  or means with the intent to cause the death of an unborn child of a
  woman known to be pregnant. The term does not include birth control
  devices or oral contraceptives. An act is not an abortion if the act
  is done with the intent to:
                     (A)  save the life or preserve the health of an
  unborn child;
                     (B)  remove a dead, unborn child whose death was
  caused by spontaneous abortion; or
                     (C)  remove an ectopic pregnancy that seriously
  threatens the life of the mother when a reasonable alternative to
  save the lives of both the mother and the unborn child is
  unavailable [has the meaning assigned by Section 245.002, Health
  and Safety Code].
               (2)  "Abortion provider" means a person who performs or
  induces an abortion [:
                     [(A)  a facility licensed under Chapter 245,
  Health and Safety Code; or
                     [(B)  an ambulatory surgical center licensed
  under Chapter 243, Health and Safety Code, that is used to perform
  more than 50 abortions in any 12-month period].
         SECTION 19.  Section 32.046(e), Health and Safety Code, is
  amended to read as follows:
         (e)  For purposes of this section, "postpartum depression"
  means a disorder in which a woman experiences moderate to severe
  depression following a pregnancy[, regardless of whether the
  pregnancy resulted in birth, or an act defined by Section
  245.002(1)].
         SECTION 20.  Section 248.003, Health and Safety Code, is
  amended to read as follows:
         Sec. 248.003.  EXEMPTIONS. This chapter does not apply to:
               (1)  a home and community support services agency
  required to be licensed under Chapter 142;
               (2)  a person required to be licensed under Chapter 241
  (Texas Hospital Licensing Law);
               (3)  an institution required to be licensed under
  Chapter 242;
               (4)  an ambulatory surgical center required to be
  licensed under Chapter 243 (Texas Ambulatory Surgical Center
  Licensing Act);
               (5)  a birthing center required to be licensed under
  Chapter 244 (Texas Birthing Center Licensing Act);
               (6)  [a facility required to be licensed under Chapter
  245 (Texas Abortion Facility Reporting and Licensing Act);
               [(7)]  a general residential operation, foster group
  home, foster home, and child-placing agency, for children in foster
  care or other residential care who are under the conservatorship of
  the Department of Family and Protective Services; or
               (7) [(8)]  a person providing medical or nursing care
  or services under a license or permit issued under other state law.
         SECTION 21.  The heading to Chapter 1218, Insurance Code, is
  amended to read as follows:
  CHAPTER 1218. COVERAGE FOR [ELECTIVE] ABORTION PROHIBITED[;
  PROHIBITIONS AND REQUIREMENTS]
         SECTION 22.  Section 1218.001, Insurance Code, is amended to
  read as follows:
         Sec. 1218.001.  DEFINITION. In this chapter, "abortion"
  means the act of using or prescribing an instrument, a drug, a
  medicine, or any other substance, device, or means with the intent
  to cause the death of an unborn child of a woman known to be
  pregnant. The term does not include birth control devices or oral
  contraceptives. An act is not an abortion if the act is done with
  the intent to:
               (1)  save the life or preserve the health of an unborn
  child;
               (2)  remove a dead, unborn child whose death was caused
  by spontaneous abortion; or
               (3)  remove an ectopic pregnancy that seriously
  threatens the life of the mother when a reasonable alternative to
  save the lives of both the mother and the unborn child is
  unavailable ["elective abortion" means an abortion, as defined by
  Section 245.002, Health and Safety Code, other than an abortion
  performed due to a medical emergency as defined by Section 171.002,
  Health and Safety Code].
         SECTION 23.  Section 1218.004, Insurance Code, is amended to
  read as follows:
         Sec. 1218.004.  COVERAGE BY HEALTH BENEFIT PLAN. A health
  benefit plan may not provide coverage for [elective] abortion [only
  if:
               [(1)  the coverage is provided to an enrollee
  separately from other health benefit plan coverage offered by the
  health benefit plan issuer;
               [(2)  the enrollee pays the premium for coverage for
  elective abortion separately from, and in addition to, the premium
  for other health benefit plan coverage, if any; and
               [(3)  the enrollee provides a signature for coverage
  for elective abortion, separately and distinct from the signature
  required for other health benefit plan coverage, if any, provided
  to the enrollee by the health benefit plan issuer].
         SECTION 24.  The heading to Chapter 1696, Insurance Code, is
  amended to read as follows:
  CHAPTER 1696. COVERAGE FOR [ELECTIVE] ABORTION; PROHIBITIONS AND
  REQUIREMENTS
         SECTION 25.  Section 1696.001(1), Insurance Code, is amended
  to read as follows:
               (1)  "Abortion" has the meaning assigned by Section
  1218.001 ["Elective abortion" means an abortion, as defined by
  Section 245.002, Health and Safety Code, other than an abortion
  performed due to a medical emergency as defined by Section 171.002,
  Health and Safety Code].
         SECTION 26.  Section 1696.002(a), Insurance Code, is amended
  to read as follows:
         (a)  A qualified health plan offered through a health benefit
  exchange may not provide coverage for [elective] abortion.
         SECTION 27.  Section 164.052(a), Occupations Code, is
  amended to read as follows:
         (a)  A physician or an applicant for a license to practice
  medicine commits a prohibited practice if that person:
               (1)  submits to the board a false or misleading
  statement, document, or certificate in an application for a
  license;
               (2)  presents to the board a license, certificate, or
  diploma that was illegally or fraudulently obtained;
               (3)  commits fraud or deception in taking or passing an
  examination;
               (4)  uses alcohol or drugs in an intemperate manner
  that, in the board's opinion, could endanger a patient's life;
               (5)  commits unprofessional or dishonorable conduct
  that is likely to deceive or defraud the public, as provided by
  Section 164.053, or injure the public;
               (6)  uses an advertising statement that is false,
  misleading, or deceptive;
               (7)  advertises professional superiority or the
  performance of professional service in a superior manner if that
  advertising is not readily subject to verification;
               (8)  purchases, sells, barters, or uses, or offers to
  purchase, sell, barter, or use, a medical degree, license,
  certificate, or diploma, or a transcript of a license, certificate,
  or diploma in or incident to an application to the board for a
  license to practice medicine;
               (9)  alters, with fraudulent intent, a medical license,
  certificate, or diploma, or a transcript of a medical license,
  certificate, or diploma;
               (10)  uses a medical license, certificate, or diploma,
  or a transcript of a medical license, certificate, or diploma that
  has been:
                     (A)  fraudulently purchased or issued;
                     (B)  counterfeited; or
                     (C)  materially altered;
               (11)  impersonates or acts as proxy for another person
  in an examination required by this subtitle for a medical license;
               (12)  engages in conduct that subverts or attempts to
  subvert an examination process required by this subtitle for a
  medical license;
               (13)  impersonates a physician or permits another to
  use the person's license or certificate to practice medicine in
  this state;
               (14)  directly or indirectly employs a person whose
  license to practice medicine has been suspended, canceled, or
  revoked;
               (15)  associates in the practice of medicine with a
  person:
                     (A)  whose license to practice medicine has been
  suspended, canceled, or revoked; or
                     (B)  who has been convicted of the unlawful
  practice of medicine in this state or elsewhere;
               (16)  performs or procures a criminal abortion, aids or
  abets in the procuring of a criminal abortion, attempts to perform
  or procure a criminal abortion, or attempts to aid or abet the
  performance or procurement of a criminal abortion;
               (17)  directly or indirectly aids or abets the practice
  of medicine by a person, partnership, association, or corporation
  that is not licensed to practice medicine by the board;
               (18)  performs an abortion as defined by Section
  161.006(b), Family Code, on a woman who is pregnant [with a viable
  unborn child during the third trimester of the pregnancy unless:
                     [(A)  the abortion is necessary to prevent the
  death of the woman;
                     [(B)  the viable unborn child has a severe,
  irreversible brain impairment; or
                     [(C)  the woman is diagnosed with a significant
  likelihood of suffering imminent severe, irreversible brain damage
  or imminent severe, irreversible paralysis]; or
               (19)  [performs an abortion on an unemancipated minor
  without the written consent of the child's parent, managing
  conservator, or legal guardian or without a court order, as
  provided by Section 33.003 or 33.004, Family Code, unless the
  abortion is necessary due to a medical emergency, as defined by
  Section 171.002, Health and Safety Code;
               [(20)  otherwise performs an abortion on an
  unemancipated minor in violation of Chapter 33, Family Code;
               [(21)  performs or induces or attempts to perform or
  induce an abortion in violation of Subchapter C, F, or G, Chapter
  171, Health and Safety Code; or
               [(22)]  in complying with the procedures outlined in
  Sections 166.045 and 166.046, Health and Safety Code, wilfully
  fails to make a reasonable effort to transfer a patient to a
  physician who is willing to comply with a directive.
         SECTION 28.  The following provisions are repealed:
               (1)  Section 71.003(c), Civil Practice and Remedies
  Code;
               (2)  Chapter 33, Family Code;
               (3)  Sections 151.002(b), (c), (d), (e), (f), and (g),
  Family Code;
               (4)  Section 2272.002, Government Code, as added by
  Chapter 501 (S.B. 22), Acts of the 86th Legislature, Regular
  Session, 2019;
               (5)  Chapters 170 and 171, Health and Safety Code;
               (6)  Section 241.007, Health and Safety Code;
               (7)  Section 241.011, Health and Safety Code;
               (8)  Section 243.017, Health and Safety Code;
               (9)  Chapter 245, Health and Safety Code;
               (10)  Section 285.202, Health and Safety Code;
               (11)  Section 1218.003, Insurance Code;
               (12)  Section 1218.005, Insurance Code;
               (13)  Section 1218.006, Insurance Code;
               (14)  Section 1696.002(b), Insurance Code;
               (15)  Chapter 103, Occupations Code;
               (16)  Section 164.052(c), Occupations Code;
               (17)  Section 164.055, Occupations Code;
               (18)  Section 164.0551, Occupations Code;
               (19)  Section 19.06, Penal Code;
               (20)  Section 20.01(5), Penal Code;
               (21)  Section 22.12, Penal Code; and
               (22)  Section 49.12, Penal Code.
         SECTION 29.  (a) The changes in law made by this Act apply
  only to conduct that occurs on or after the effective date of this
  Act. Conduct that occurs before the effective date of this Act is
  governed by the law in effect immediately before the effective date
  of this Act, and that law is continued in effect for that purpose.
         (b)  The changes in law made by this Act apply only to an
  offense committed on or after the effective date of this Act. An
  offense committed before the effective date of this Act is governed
  by the law in effect when the offense was committed, and the former
  law is continued in effect for that purpose. For purposes of this
  section, an offense is committed before the effective date of this
  Act if any element of the offense occurs before the effective date.
         (c)  Chapters 1218 and 1696, Insurance Code, as amended by
  this Act, apply only to a health benefit plan delivered, issued for
  delivery, or renewed on or after the effective date of this Act. A
  health benefit plan delivered, issued for delivery, or renewed
  before the effective date of this Act is governed by the law in
  effect immediately before the effective date of this Act, and that
  law is continued in effect for that purpose.
         SECTION 30.  Any federal statute, regulation, treaty, order,
  or court decision that purports to supersede, stay, or overrule
  this Act is in violation of the Texas Constitution and the United
  States Constitution and is therefore void. The State of Texas, a
  political subdivision of this state, and any agent of this state or
  a political subdivision of this state may, but is not required to,
  enter an appearance, special or otherwise, in any federal suit
  challenging this Act.
         SECTION 31.  A provision of this Act is not severable from
  any of the Act's other provisions. If any provision is held invalid,
  all provisions are invalid.
         SECTION 32.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect on the 91st day after the last day of
  the legislative session.

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