Bill Text: TX SB1546 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to the construction of abortion laws and the waiver of certain requirements for a physician or abortion facility in performing or inducing an abortion.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2021-03-24 - Referred to State Affairs [SB1546 Detail]

Download: Texas-2021-SB1546-Introduced.html
 
 
  By: Hughes S.B. No. 1546
 
 
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the construction of abortion laws and the waiver of
  certain requirements for a physician or abortion facility in
  performing or inducing an abortion.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter C, Chapter 311, Government Code, is
  amended by adding Section 311.036 to read as follows:
         Sec. 311.036.  CONSTRUCTION OF ABORTION STATUTES. (a)  A
  statute that regulates or prohibits abortion may not be construed
  to repeal any other statute that regulates or prohibits abortion,
  either wholly or partly, unless the repealing statute explicitly
  states that it is repealing the other statute.
         (b)  A statute may not be construed to restrict a political
  subdivision from regulating or prohibiting abortion in a manner
  that is at least as stringent as the laws of this state unless the
  statute explicitly states that political subdivisions are
  prohibited from regulating or prohibiting abortion in the manner
  described by the statute.
         (c)  Every statute that regulates or prohibits abortion is
  severable in each of its applications to every person and
  circumstance. If any statute that regulates or prohibits abortion
  is found by any court to be unconstitutional, either on its face or
  as applied, then all applications of that statute that do not
  violate the constitutional rights of women seeking abortions shall
  be severed from the unconstitutional applications and shall remain
  enforceable, notwithstanding any other law.
         SECTION 2.  Subchapter A, Chapter 171, Health and Safety
  Code, is amended by adding Section 171.0025 to read as follows:
         Sec. 171.0025.  CONSTRUCTION OF CHAPTER.  This chapter may
  not be construed to:
               (1)  wholly or partly repeal, either expressly or by
  implication, any other statute that regulates or prohibits
  abortion, including Chapter 6-1/2, Title 71, Revised Statutes; or
               (2)  restrict a municipality or county from regulating
  or prohibiting abortion in a manner that is at least as stringent as
  the laws of this state.
         SECTION 3.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter H, and a heading is added to that subchapter to
  read as follows:
  SUBCHAPTER H. ADMITTING PRIVILEGE AND DISCLOSURE REQUIREMENTS FOR
  PHYSICIANS
         SECTION 4.  Section 171.0031, Health and Safety Code, is
  transferred to Subchapter H, Chapter 171, Health and Safety Code,
  as added by this Act, redesignated as Section 171.201, Health and
  Safety Code, and amended to read as follows:
         Sec. 171.201 [171.0031].  ADMITTING PRIVILEGE AND
  DISCLOSURE REQUIREMENTS OF PHYSICIAN; OFFENSE; WAIVER.  
  (a)  Except as provided by Subsection (c), 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.
         (c)  A physician must comply with the requirements of
  Subsection (a) to perform or induce an abortion unless the
  physician obtains a waiver under Section 171.202.
         SECTION 5.  Subchapter H, Chapter 171, Health and Safety
  Code, as added by this Act, is amended by adding Sections 171.202,
  171.203, 171.204, 171.205, 171.206, and 171.207 to read as follows:
         Sec. 171.202.  WAIVER REQUEST PROCEDURES.  (a)  To obtain a
  waiver described by Section 171.201(c), a physician must submit to
  the executive commissioner, in the form and manner required by the
  executive commissioner, a waiver request and supporting evidence to
  demonstrate that:
               (1)  the physician has made every reasonable effort to
  obtain admitting privileges from each hospital located within 30
  miles of the location where the physician performs or induces
  abortions;
               (2)  notwithstanding the physician's best efforts, the
  physician is unable to obtain admitting privileges from a hospital
  described by Subdivision (1); and
               (3)  the physician's compliance with the requirements
  under Section 171.201 imposes an undue burden on the physician's
  patients.
         (b)  For purposes of Subsection (a), a physician's
  compliance with the requirements under Section 171.201 imposes an
  undue burden on the physician's patients if and only if the
  physician submits evidence showing that, as a result of the
  physician's inability to comply with the requirements, the patients
  will:
               (1)  be unable to obtain an abortion from another
  abortion provider; or
               (2)  encounter a substantial obstacle to obtaining an
  abortion.
         (c)  Not later than the 60th day after the date the executive
  commissioner receives a waiver request under Subsection (a), the
  executive commissioner shall:
               (1)  if the requesting physician submits evidence the
  executive commissioner determines is sufficient to satisfy the
  requirements of that subsection, provide to the physician a written
  statement approving the waiver and explaining the specific reasons
  for the approval; or
               (2)  if the requesting physician submits evidence the
  executive commissioner determines is insufficient to satisfy the
  requirements of that subsection, provide to the physician a written
  statement denying the waiver and explaining the specific reasons
  for the denial.
         (d)  A waiver obtained under this section expires on the
  first anniversary of the date the executive commissioner approves
  the waiver.
         (e)  The executive commissioner may conduct any
  investigation necessary to verify evidence provided with a waiver
  request under Subsection (a).
         (f)  If the executive commissioner fails to approve or deny a
  waiver request before the date required by Subsection (c), the
  requesting physician may seek a writ of mandamus from the supreme
  court to compel the executive commissioner to approve or deny the
  waiver.
         Sec. 171.203.  APPEAL OF APPROVAL OR DENIAL OF WAIVER.  
  (a)  A physician whose waiver request is denied by the executive
  commissioner under Section 171.202 may appeal the denial by
  applying for a writ of mandamus from the supreme court to review the
  executive commissioner's decision.
         (b)  A citizen of this state may appeal the executive
  commissioner's approval of a waiver request under Section 171.202
  by applying for a writ of mandamus from the supreme court to review
  the executive commissioner's decision.
         (c)  The supreme court has exclusive jurisdiction over an
  action brought under this section and shall review de novo the
  executive commissioner's decision to approve or deny a waiver
  request under Section 171.202.
         (d)  In an action brought under this section, the physician
  seeking a waiver under Section 171.202 at all times has the burden
  of proving by a preponderance of the evidence that the evidence the
  physician submits with the waiver request satisfies the
  requirements of Section 171.202(a).
         Sec. 171.204.  CIVIL LIABILITY FOR VIOLATION. (a)  Any
  person, other than an officer or employee of a state or local
  governmental entity in this state, may bring a civil action against
  a person who violates Section 171.201.
         (b)  If a claimant prevails in an action brought under this
  section, the court shall award:
               (1)  injunctive relief;
               (2)  statutory damages in an amount of not less than
  $10,000 for each violation; and
               (3)  costs and attorney's fees if the court awards a
  remedy described by Subdivision (1) or (2).
         (c)  Notwithstanding Subsection (b), a defendant is not
  required to pay statutory damages under this section if the
  defendant demonstrates that the defendant previously paid
  statutory damages in a previous action for that particular
  violation.
         (d)  Notwithstanding Chapter 16, Civil Practice and Remedies
  Code, a person must bring an action under this section not later
  than the sixth anniversary of the date the cause of action accrues.
         (e)  The following are not a defense to an action brought
  under this section:
               (1)  ignorance or mistake of law;
               (2)  a defendant's belief that the requirements of this
  subchapter are unconstitutional or were unconstitutional;
               (3)  a defendant's reliance on any court decision that
  has been overruled on appeal or by a subsequent court, even if that
  court decision had not been overruled when the defendant engaged in
  conduct that violates this subchapter;
               (4)  a defendant's reliance on any state or federal
  court decision that is not binding on the court in which the action
  has been brought;
               (5)  nonmutual issue preclusion or nonmutual claim
  preclusion;
               (6)  the consent of the unborn child's mother to the
  abortion; or
               (7)  any claim that the enforcement of this subchapter
  or the imposition of civil liability against the defendant will
  violate the constitutional rights of third parties.
         Sec. 171.205.  CIVIL LIABILITY:  MANDATORY VENUE.
  Notwithstanding any other law, including Section 15.002, Civil
  Practice and Remedies Code, a civil action brought under Section
  171.204 must be brought in:
               (1)  the county in which all or a substantial part of
  the events or omissions giving rise to the claim occurred;
               (2)  the county of residence for any one of the natural
  person defendants at the time the cause of action accrued;
               (3)  the county of the principal office in this state of
  any one of the defendants that is not a natural person; or
               (4)  the county of residence for the claimant if the
  claimant is a natural person residing in this state.
         Sec. 171.206.  RULES. The executive commissioner shall
  adopt rules necessary to implement this subchapter.
         Sec. 171.207.  AUTOMATIC REVOCATION OF WAIVER.  A waiver
  obtained under this subchapter is automatically revoked and the
  executive commissioner may not approve a waiver on the issuance of a
  decision by the United States Supreme Court overruling Whole
  Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 136 S. Ct. 2292 (2016).
         SECTION 6.  Chapter 245, Health and Safety Code, is amended
  by designating Sections 245.001, 245.002, 245.003, 245.004 as
  amended by Chapter 198, Acts of the 78th Legislature, Regular
  Session, 2003, 245.004 as amended by Chapter 999, Acts of the 78th
  Legislature, Regular Session, 2003, 245.005, 245.006, 245.007,
  245.009, 245.0105, 245.011, 245.0115, 245.0116, 245.012, 245.013,
  245.014, 245.015, 245.016, 245.017, 245.018, 245.019, 245.020,
  245.021, 245.022, 245.023, 245.024, and 245.025 as Subchapter and
  adding a subchapter heading to read as follows:
  SUBCHAPTER A. GENERAL PROVISIONS
         SECTION 7.  Subchapter A, Chapter 245, Health and Safety
  Code, as added by this Act, is amended by adding Section 245.0025 to
  read as follows:
         Sec. 245.0025.  CONSTRUCTION OF CHAPTER. Nothing in this
  chapter may be construed to:
               (1)  wholly or partly repeal, either expressly or by
  implication, any other statute that regulates or prohibits
  abortion, including Chapter 6-1/2, Title 71, Revised Statutes; of
               (2)  restrict a political subdivision from regulating
  or prohibiting abortion in a manner that is at least as stringent as
  the laws of this state.
         SECTION 8.  Chapter 245, Health and Safety Code, is amended
  by adding Subchapter B and a heading is added to that subchapter to
  read as follows:
  SUBCHAPTER B. ABORTION FACILITY MINIMUM STANDARDS
         SECTION 9.  Section 245.010, Health and Safety Code, is
  transferred to Subchapter B, Chapter 245, Health and Safety Code,
  as added by this Act, redesignated as Section 245.051, Health and
  Safety Code, and amended to read as follows:
         Sec. 245.051 [245.010]. MINIMUM STANDARDS.  (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.
         (b)  Only a physician as defined by Subtitle B, Title 3,
  Occupations Code, may perform an abortion.
         (c) [(d)] This section does not authorize the executive
  commissioner to:
               (1)  establish the qualifications of a licensed
  practitioner; or
               (2)  permit a person to provide health care services
  who is not authorized to provide those services under other laws of
  this state.
         SECTION 10.  Subchapter B, Chapter 245, Health and Safety
  Code, as added by this Act, is amended by adding Sections 245.052,
  245.053, 245.054, 245.055, 245.056, 245.057, and 245.058 to read as
  follows:
         Sec. 245.052.  COMPLIANCE WITH MINIMUM STANDARDS REQUIRED
  UNLESS WAIVER OBTAINED. An abortion facility must comply with the
  minimum standards for an ambulatory surgical center adopted under
  Section 245.051 for an abortion to be performed or induced at the
  facility unless the facility obtains a waiver under Section
  245.053.
         Sec. 245.053.  WAIVER REQUEST PROCEDURES.  (a)  To obtain a
  waiver described by Section 245.052, an abortion facility must
  submit to the executive commissioner, in the form and manner
  required by the executive commissioner, a waiver request and
  supporting evidence to demonstrate that:
               (1)  the abortion facility has made every reasonable
  effort to comply with each minimum standard adopted under Section
  245.051 related to ambulatory surgical centers;
               (2)  the abortion facility is unable to comply and
  raise the money necessary to bring the facility into compliance
  with one or more specific minimum standards related to ambulatory
  surgical centers and, as a result of the facility's inability to
  comply with those specific minimum standards that it has
  identified, must stop providing abortions; and
                     (3)  the abortion facility's inability to provide
  abortions in compliance with each minimum standard adopted under
  Section 245.051 will impose an undue burden on the facility's
  patients.
         (b)  For purposes of Subsection (a), an abortion facility
  demonstrates an undue burden only by submitting evidence that, as a
  result of the facility's inability to provide abortions in
  compliance with the minimum standards, the facility's patients
  will:
               (1)  be unable to obtain an abortion from another
  abortion provider; or
               (2)  encounter a substantial obstacle to obtaining an
  abortion.
         (c)  Not later than the 60th day after the date the executive
  commissioner receives a waiver request under Subsection (a), the
  executive commissioner shall:
               (1)  if the requesting abortion facility submits
  evidence the executive commissioner determines is sufficient to
  satisfy the requirements of that subsection for all or some of the
  minimum standards, provide to the facility a written statement
  approving the waiver for the specific minimum standards that the
  facility is unable to comply with and explaining the specific
  reasons for the approval; or
               (2)  if the requesting abortion facility submits
  evidence the executive commissioner determines is insufficient to
  satisfy the requirements of that subsection for all or some of the
  minimum standards, provide to the facility a written statement
  denying the waiver for all or some of the minimum standards, as
  applicable, and explaining the specific reasons for the denial.
         (d)  A waiver obtained under this section expires on the
  first anniversary of the date the executive commissioner approves
  the waiver.
         (e)  The executive commissioner may conduct any
  investigation necessary to verify evidence provided with a waiver
  request under Subsection (a).
         (f)  If the executive commissioner fails to approve or deny a
  waiver request before the date required by Subsection (c), the
  requesting abortion facility may seek a writ of mandamus from the
  supreme court to compel the executive commissioner to approve or
  deny the waiver.
         Sec. 245.054.  APPEAL OF APPROVAL OR DENIAL OF WAIVER.  (a)
  An abortion facility that submits a waiver request denied by the
  executive commissioner under Section 245.053, including partial
  denial of a waiver request for one or more minimum standards under
  Section 245.051, may appeal the denial by applying for a writ of
  mandamus from the supreme court to review the executive
  commissioner's decision.
         (b)  A citizen of this state may appeal the executive
  commissioner's approval of a waiver request under Section 245.053
  by applying for a writ of mandamus from the supreme court to review
  the executive commissioner's decision.
         (c)  The supreme court has exclusive jurisdiction over an
  action brought under this section and shall review de novo the
  executive commissioner's decision to approve or deny a waiver
  request under Section 245.053.
         (d)  In an action brought under this section, the abortion
  facility at all times has the burden of proving by a preponderance
  of the evidence that the evidence the facility submits with the
  waiver request under Section 245.053 satisfies the requirements of
  Section 245.053(a).
         Sec. 245.055.  CIVIL LIABILITY FOR VIOLATION. (a)  Any
  person, other than an officer or employee of a state or local
  governmental entity in this state, may bring a civil action against
  an abortion facility that performs or induces an abortion in
  violation of this subchapter.
         (b)  If a claimant prevails in an action brought under this
  section, the court shall award:
               (1)  injunctive relief;
               (2)  statutory damages in an amount of not less than
  $10,000 for each violation; and
                     (3)  costs and attorney's fees if the court awards
  a remedy described by Subdivision (1) or (2).
         (c)  Notwithstanding Subsection (b), a defendant is not
  required to pay statutory damages under this section if the
  defendant demonstrates that the defendant previously paid
  statutory damages in a previous action for that particular
  violation.
         (d)  Notwithstanding Chapter 16, Civil Practice and Remedies
  Code, a person must bring an action under this section not later
  than the sixth anniversary of the date the cause of action accrues.
         (e)  The following are not a defense to an action brought
  under this section:
               (1)  ignorance or mistake of law;
               (2)  a defendant's belief that the requirements of this
  subchapter are unconstitutional or were unconstitutional;
               (3)  a defendant's reliance on any court decision that
  has been overruled on appeal or by a subsequent court, even if that
  court decision had not been overruled when the defendant engaged in
  conduct that violates this subchapter;
               (4)  a defendant's reliance on any state or federal
  court decision that is not binding on the court in which the action
  has been brought;
               (5)  nonmutual issue preclusion or nonmutual claim
  preclusion;
               (6)  the consent of the unborn child's mother to the
  abortion; or
               (7)  any claim that the enforcement of this subchapter
  or the imposition of civil liability against the defendant will
  violate the constitutional rights of third parties.
         Sec. 245.056.  CIVIL LIABILITY:  MANDATORY VENUE.
  Notwithstanding any other law, including Section 15.002, Civil
  Practice and Remedies Code, a civil action brought under Section
  245.055 must be brought in:
               (1)  the county in which all or a substantial part of
  the events or omissions giving rise to the claim occurred;
               (2)  the county of residence for any one of the natural
  person defendants at the time the cause of action accrued;
               (3)  the county of the principal office in this state of
  any one of the defendants that is not a natural person; or
               (4)  the county of residence for the claimant if the
  claimant is a natural person residing in this state.
         Sec. 245.057.  RULES. The executive commissioner shall
  adopt the rules necessary to implement this subchapter.
         Sec. 245.058.  AUTOMATIC REVOCATION OF WAIVER.  A waiver
  obtained under this subchapter is automatically revoked and the
  executive commissioner may not approve a waiver on the issuance of a
  decision by the United States Supreme Court overruling Whole
  Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016)., 136 S. Ct. 2292 (2016).
         SECTION 11.  As soon as practicable after the effective date
  of this Act, the attorney general, the Texas Medical Board, and the
  executive commissioner of the Health and Human Services Commission
  shall adopt the rules necessary to implement the changes in law made
  by this Act.
         SECTION 12.  The changes in law made by this Act apply to the
  performance or inducement of an abortion that occurs on or after
  January 1, 2022.
         SECTION 13.  This Act takes effect September 1, 2021.
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