Bill Text: TX SB13 | 2013 | 83rd Legislature 1st Special Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to abortion at or after 20 weeks post-fertilization.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced - Dead) 2013-06-18 - Co-author authorized [SB13 Detail]
Download: Texas-2013-SB13-Introduced.html
Bill Title: Relating to abortion at or after 20 weeks post-fertilization.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced - Dead) 2013-06-18 - Co-author authorized [SB13 Detail]
Download: Texas-2013-SB13-Introduced.html
83S10061 SCL/JSC-F | ||
By: Hegar | S.B. No. 13 |
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relating to abortion at or after 20 weeks post-fertilization. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. (a) This Act may be cited as the Preborn Pain | ||
Act. | ||
(b) The legislature finds 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. | ||
(c) 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 7 of this Act. | ||
SECTION 2. Chapter 171, Health and Safety Code, is amended | ||
by adding Subchapter C to read as follows: | ||
SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS | ||
POST-FERTILIZATION | ||
Sec. 171.041. 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) "Profound and irremediable congenital anomaly" | ||
means a congenital anomaly that, in a physician's reasonable | ||
medical judgment, will result in the death of the infant not later | ||
than minutes to hours after birth regardless of the provision of | ||
lifesaving medical treatment. | ||
Sec. 171.042. DETERMINATION OF POST-FERTILIZATION AGE | ||
REQUIRED. Except as otherwise provided by Section 171.045, 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. 171.043. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS | ||
POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by | ||
Section 171.045, 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. 171.044. METHOD OF ABORTION. (a) This section applies | ||
only to an abortion authorized under Section 171.045(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 171.045(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. 171.045. EXCEPTIONS. (a) The prohibitions and | ||
requirements under Sections 171.042, 171.043, and 171.044 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 171.044(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 | ||
171.042, 171.043, and 171.044 do not apply to an abortion performed | ||
on an unborn child who has a profound and irremediable congenital | ||
anomaly. | ||
Sec. 171.046. 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. 171.047. 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. | ||
SECTION 3. 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 [ |
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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 4. 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; [ |
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(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 5. 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 6. 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 7. (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 8. 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. |