Bill Text: TX SB8 | 2021-2022 | 87th Legislature | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to abortion, including abortions after detection of an unborn child's heartbeat; authorizing a private civil right of action.

Spectrum: Partisan Bill (Republican 90-1)

Status: (Passed) 2021-05-19 - Effective on 9/1/21 [SB8 Detail]

Download: Texas-2021-SB8-Comm_Sub.html
 
 
  By: Hughes, et al.  S.B. No. 8
         (In the Senate - Filed March 11, 2021; March 11, 2021, read
  first time and referred to Committee on State Affairs;
  March 22, 2021, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 7, Nays 2; March 22, 2021,
  sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 8 By:  Hughes
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to abortion, including abortions after detection of an
  unborn child's heartbeat; authorizing a private civil right of
  action.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as the Texas Heartbeat
  Act.
         SECTION 2.  The legislature finds that the State of Texas
  never repealed, either expressly or by implication, the state
  statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113
  (1973), that prohibit and criminalize abortion unless the mother's
  life is in danger.
         SECTION 3.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter H to read as follows:
  SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT
         Sec. 171.201.  DEFINITIONS. In this subchapter:
               (1)  "Fetal heartbeat" means cardiac activity or the
  steady and repetitive rhythmic contraction of the fetal heart
  within the gestational sac.
               (2)  "Gestational age" means the amount of time that
  has elapsed from the first day of a woman's last menstrual period.
               (3)  "Gestational sac" means the structure comprising
  the extraembryonic membranes that envelop the unborn child and that
  is typically visible by ultrasound after the fourth week of
  pregnancy.
               (4)  "Physician" means an individual licensed to
  practice medicine in this state, including a medical doctor and a
  doctor of osteopathic medicine.
               (5)  "Pregnancy" means the human female reproductive
  condition that:
                     (A)  begins with fertilization;
                     (B)  occurs when the woman is carrying the
  developing human offspring; and
                     (C)  is calculated from the first day of the
  woman's last menstrual period.
               (6)  "Standard medical practice" means the degree of
  skill, care, and diligence that an obstetrician of ordinary
  judgment, learning, and skill would employ in like circumstances.
               (7)  "Unborn child" means a human fetus or embryo in any
  stage of gestation from fertilization until birth.
         Sec. 171.202.  LEGISLATIVE FINDINGS. The legislature finds,
  according to contemporary medical research, that:
               (1)  fetal heartbeat has become a key medical predictor
  that an unborn child will reach live birth;
               (2)  cardiac activity begins at a biologically
  identifiable moment in time, normally when the fetal heart is
  formed in the gestational sac;
               (3)  Texas has compelling interests from the outset of
  a woman's pregnancy in protecting the health of the woman and the
  life of the unborn child; and
               (4)  to make an informed choice about whether to
  continue her pregnancy, the pregnant woman has a compelling
  interest in knowing the likelihood of her unborn child surviving to
  full-term birth based on the presence of cardiac activity.
         Sec. 171.203.  DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
  REQUIRED; RECORD. (a) For the purposes of determining the presence
  of a fetal heartbeat under this section, "standard medical
  practice" includes employing the appropriate means of detecting the
  heartbeat based on the estimated gestational age of the unborn
  child and the condition of the woman and her pregnancy.
         (b)  Except as provided by Section 171.205, a physician may
  not knowingly perform or induce an abortion on a pregnant woman
  unless the physician has determined, in accordance with this
  section, whether the woman's unborn child has a detectable fetal
  heartbeat.
         (c)  In making a determination under Subsection (b), the
  physician must use a test that is:
               (1)  consistent with the physician's good faith and
  reasonable understanding of standard medical practice; and
               (2)  appropriate for the estimated gestational age of
  the unborn child and the condition of the pregnant woman and her
  pregnancy.
         (d)  A physician making a determination under Subsection (b)
  shall record in the pregnant woman's medical record:
               (1)  the estimated gestational age of the unborn child;
               (2)  the method used to estimate the gestational age;
  and
               (3)  the test used for detecting a fetal heartbeat,
  including the date, time, and results of the test.
         Sec. 171.204.  PROHIBITED ABORTION OF UNBORN CHILD WITH
  DETECTABLE FETAL HEARTBEAT; EFFECT. (a) Except as provided by
  Section 171.205, a physician may not knowingly perform or induce an
  abortion on a pregnant woman if the physician detected a fetal
  heartbeat for the unborn child as required by Section 171.203 or
  failed to perform a test to detect a fetal heartbeat.
         (b)  A physician does not violate this section if the
  physician performed a test for a fetal heartbeat as required by
  Section 171.203 and did not detect a fetal heartbeat.
         (c)  This section does not affect:
               (1)  the provisions of this chapter that restrict or
  regulate an abortion by a particular method or during a particular
  stage of pregnancy; or
               (2)  any other provision of state law that regulates or
  prohibits abortion.
         Sec. 171.205.  EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a)
  Section 171.204 does not apply if a physician believes a medical
  emergency exists that prevents compliance with this subchapter.
         (b)  A physician who performs or induces an abortion under
  circumstances described by Subsection (a) shall make written
  notations in the pregnant woman's medical record of:
               (1)  the physician's belief that a medical emergency
  necessitated the abortion; and
               (2)  the medical condition of the pregnant woman that
  prevented compliance with this subchapter.
         (c)  A physician performing or inducing an abortion under
  this section shall maintain in the physician's practice records a
  copy of the notations made under Subsection (b).
         Sec. 171.206.  CONSTRUCTION OF SUBCHAPTER. (a) This
  subchapter does not create or recognize a right to abortion before a
  fetal heartbeat is detected.
         (b)  This subchapter may not be construed to:
               (1)  authorize the initiation of a cause of action
  against or the prosecution of a woman on whom an abortion is
  performed or induced or attempted to be performed or induced in
  violation of this subchapter;
               (2)  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
               (3)  restrict a political subdivision from regulating
  or prohibiting abortion in a manner that is at least as stringent as
  the laws of this state.
         Sec. 171.207.  LIMITATIONS ON PUBLIC ENFORCEMENT. (a) The
  requirements of this subchapter shall be enforced exclusively
  through the private civil actions described in Section 171.208. No
  enforcement of this subchapter, and no enforcement of Chapters 19
  and 22, Penal Code, in response to violations of this subchapter,
  may be taken or threatened by this state, a political subdivision, a
  district or county attorney, or an executive or administrative
  officer or employee of this state or a political subdivision
  against any person, except as provided in Section 171.208.
         (b)  Subsection (a) may not be construed to:
               (1)  legalize the conduct prohibited by this subchapter
  or by Chapter 6-1/2, Title 71, Revised Statutes;
               (2)  limit in any way or affect the availability of a
  remedy established by Section 171.208; or
               (3)  limit the enforceability of any other laws that
  regulate or prohibit abortion.
         Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR
  ABETTING 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 any person who:
               (1)  performs or induces an abortion in violation of
  this chapter; or
               (2)  knowingly engages in conduct that aids or abets
  the performance or inducement of an abortion, including paying for
  or reimbursing the costs of an abortion through insurance or
  otherwise, if the abortion is performed or induced in violation of
  this chapter, regardless of whether the person knew or should have
  known that the abortion would be performed or induced in violation
  of this chapter.
         (b)  If a claimant prevails in an action brought under this
  section, the court shall award:
               (1)  injunctive relief sufficient to prevent the
  defendant from violating this chapter or engaging in acts that aid
  or abet violations of this chapter;
               (2)  statutory damages in an amount of not less than
  $10,000 for each abortion that the defendant performed or induced
  in violation of this chapter, and for each abortion performed or
  induced in violation of this chapter that the defendant aided or
  abetted; and
               (3)  costs and attorney's fees.
         (c)  Notwithstanding Subsection (b), a court may not award
  relief under this section if the defendant demonstrates that the
  defendant previously paid statutory damages in a previous action
  for that particular abortion performed or induced in violation of
  this chapter, or for the particular conduct that aided or abetted an
  abortion performed or induced in violation of this chapter.
         (d)  Notwithstanding Chapter 16, Civil Practice and Remedies
  Code, a person may bring an action under this section not later than
  the sixth anniversary of the date the cause of action accrues.
         (e)  Notwithstanding any other law, 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
  chapter 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 chapter;
               (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)  non-mutual issue preclusion or non-mutual claim
  preclusion;
               (6)  the consent of the unborn child's mother to the
  abortion; or
               (7)  any claim that the enforcement of this chapter or
  the imposition of civil liability against the defendant will
  violate the constitutional rights of third parties, except as
  provided by Section 171.209.
         (f)  It is an affirmative defense if a person sued under
  Subsection (a)(2) reasonably believed, after conducting a
  reasonable investigation, that the physician performing or
  inducing the abortion had complied or would comply with this
  chapter. The defendant has the burden of proving the affirmative
  defense under this subsection by a preponderance of the evidence.
         (g)  This section may not be construed to impose liability on
  any speech or conduct protected by the First Amendment of the United
  States Constitution, as made applicable to the states through the
  United States Supreme Court's interpretation of the Fourteenth
  Amendment of the United States Constitution, or by Section 8,
  Article I, Texas Constitution.
         (h)  Notwithstanding any other law, this state, a state
  official, or a district or county attorney may not intervene in an
  action brought under this section. This subsection does not
  prohibit a person described by this subsection from filing an
  amicus curiae brief in the action.
         (i)  Notwithstanding any other law, a court may not award
  costs or attorney's fees under the Texas Rules of Civil Procedure or
  any other rule adopted by the supreme court under Section 22.004,
  Government Code, to a defendant in an action brought under this
  section.
         Sec. 171.209.  CIVIL LIABILITY: UNDUE BURDEN DEFENSE
  LIMITATIONS. (a) A defendant against whom an action is brought
  under Section 171.208 does not have standing to assert the rights of
  women seeking an abortion as a defense to liability under that
  section unless:
               (1)  the United States Supreme Court holds that the
  courts of this state must confer standing on that defendant to
  assert the third-party rights of women seeking an abortion in state
  court as a matter of federal constitutional law; or
               (2)  the defendant is an abortion provider, an employee
  of an abortion provider, or a physician who performs or induces
  abortions.
         (b)  A defendant in an action brought under Section 171.208
  may assert an affirmative defense to liability under this section
  only if:
               (1)  the defendant has standing to assert the
  third-party rights of women seeking an abortion in accordance with
  Subsection (a); and
               (2)  the defendant demonstrates that the relief sought
  by the claimant will impose an undue burden on women seeking an
  abortion.
         (c)  A court may not find an undue burden under Subsection
  (b) unless the defendant introduces evidence proving that:
               (1)  an award of relief will prevent an identifiable
  woman or an identifiable group of women from obtaining an abortion;
  or
               (2)  an award of relief will place a substantial
  obstacle in the path of an identifiable woman or an identifiable
  group of women who are seeking an abortion.
         (d)  A defendant may not establish an undue burden under this
  section by:
               (1)  merely demonstrating that an award of relief will
  prevent women from obtaining support or assistance, financial or
  otherwise, from others in their effort to obtain an abortion; or
               (2)  arguing or attempting to demonstrate that an award
  of relief against other defendants or other potential defendants
  will impose an undue burden on women seeking an abortion.
         (e)  The affirmative defense under Subsection (b) is not
  available if the United States Supreme Court overrules Roe v. Wade,
  410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833
  (1992), regardless of whether the conduct on which the cause of
  action is based under Section 171.208 occurred before the Supreme
  Court overruled either of those decisions.
         Sec. 171.210.  CIVIL LIABILITY: VENUE. Notwithstanding any
  other law, including Section 15.002, Civil Practice and Remedies
  Code, a civil action brought under Section 171.208 shall 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. 171.211.  SOVEREIGN, GOVERNMENTAL, AND OFFICIAL
  IMMUNITY PRESERVED. (a) This section prevails over any conflicting
  law, including:
               (1)  the Uniform Declaratory Judgments Act; and
               (2)  Chapter 37, Civil Practice and Remedies Code.
         (b)  This state has sovereign immunity, a political
  subdivision has governmental immunity, and each officer and
  employee of this state or a political subdivision has official
  immunity in any action, claim, or counterclaim or any type of legal
  or equitable action that challenges the validity of any provision
  or application of this chapter, on constitutional grounds or
  otherwise.
         (c)  A provision of state law may not be construed to waive or
  abrogate an immunity described by Subsection (b) unless it
  expressly waives immunity under this section.
         Sec. 171.212.  SEVERABILITY. (a) Mindful of Leavitt v. Jane
  L.
  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 chapter, and every application of the provisions in
  this chapter, are severable from each other.
         (b)  If any application of any provision in this chapter to
  any person, group of persons, or circumstances is found by a court
  to be invalid or unconstitutional, 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 chapter 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 chapter 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.
         (c)  The legislature further declares that it would have
  enacted this chapter, and each provision, section, subsection,
  sentence, clause, phrase, or word, and all constitutional
  applications of this chapter, irrespective of the fact that any
  provision, section, subsection, sentence, clause, phrase, or word,
  or applications of this chapter, were to be declared
  unconstitutional or to represent an undue burden.
         (d)  If any provision of this chapter 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.
         (e)  No court may decline to enforce the severability
  requirements of Subsections (a), (b), (c), and (d) on the ground
  that severance would rewrite the statute or involve the court in
  legislative or lawmaking activity.  A court that declines to
  enforce or enjoins a state official from enforcing a statutory
  provision does not rewrite a statute, as the statute continues to
  contain the same words as before the court's decision.  A judicial
  injunction or declaration of unconstitutionality:
               (1)  is nothing more than an edict prohibiting
  enforcement that may subsequently be vacated by a later court if
  that court has a different understanding of the requirements of the
  Texas Constitution or United States Constitution;
               (2)  is not a formal amendment of the language in a
  statute; and
               (3)  no more rewrites a statute than a decision by the
  executive not to enforce a duly enacted statute in a limited and
  defined set of circumstances.
         (f)  If any federal or state court declares unconstitutional
  or enjoins the enforcement of a provision in this chapter and fails
  to enforce the severability requirements of Subsections (a), (b),
  (c), (d), and (e), the executive commissioner shall:
               (1)  adopt rules that enforce the requirements
  described by this chapter to the maximum possible extent while
  avoiding the constitutional problems or other problems identified
  by the federal or state court; and
               (2)  issue notice of those rules, not later than the
  30th day after the date of the court ruling.
         (g)  If the executive commissioner fails to adopt the rules
  and issue notice under Subsection (f), a person may petition for a
  writ of mandamus requiring the executive commissioner to adopt the
  rules and issue notice.
         SECTION 4.  Chapter 30, Civil Practice and Remedies Code, is
  amended by adding Section 30.022 to read as follows:
         Sec. 30.022.  AWARD OF ATTORNEY'S FEES IN ACTIONS
  CHALLENGING ABORTION LAWS. (a)  Notwithstanding any other law, any
  person, including an entity, attorney, or law firm, who seeks
  declaratory or injunctive relief to prevent this state, a political
  subdivision, or any governmental entity or public official in this
  state from enforcing any statute, ordinance, rule, regulation, or
  any other type of law that regulates or restricts abortion or that
  limits taxpayer funding for individuals or entities that perform or
  promote abortions, in any state or federal court, or that
  represents any litigant seeking such relief in any state or federal
  court, is jointly and severally liable to pay the costs and
  attorney's fees of the prevailing party.
         (b)  For purposes of this section, a party is considered a
  prevailing party if a state or federal court:
               (1)  dismisses any claim or cause of action brought
  against the party that seeks the declaratory or injunctive relief
  described by Subsection (a), regardless of the reason for the
  dismissal; or
               (2)  enters judgment in the party's favor on any such
  claim or cause of action.
         (c)  Regardless of whether a prevailing party sought to
  recover costs or attorney's fees in the underlying action, a
  prevailing party under this section may bring a civil action to
  recover costs and attorney's fees against a person, including an
  entity, attorney, or law firm, that sought declaratory or
  injunctive relief described by Subsection (a) not later than the
  third anniversary of the date on which, as applicable:
               (1)  the dismissal or judgment described by Subsection
  (b) becomes final on the conclusion of appellate review; or
               (2)  the time for seeking appellate review expires.
         (d)  It is not a defense to an action brought under
  Subsection (c) that:
               (1)  a prevailing party under this section failed to
  seek recovery of costs or attorney's fees in the underlying action;
  or
               (2)  the court in the underlying action declined to
  recognize or enforce the requirements of this section.
         SECTION 5.  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 6.  Subchapter A, Chapter 171, Health and Safety
  Code, is amended by adding Section 171.008 to read as follows:
         Sec. 171.008.  REQUIRED DOCUMENTATION. (a) If an abortion
  is performed or induced on a pregnant woman because of a medical
  emergency, the physician who performs or induces the abortion shall
  execute a written document that certifies the abortion is necessary
  due to a medical emergency and specifies the woman's medical
  condition requiring the abortion.
         (b)  A physician shall:
               (1)  place the document described by Subsection (a) in
  the pregnant woman's medical record; and
               (2)  maintain a copy of the document described by
  Subsection (a) in the physician's practice records.
         (c)  A physician who performs or induces an abortion on a
  pregnant woman shall:
               (1)  if the abortion is performed or induced to
  preserve the health of the pregnant woman, execute a written
  document that:
                     (A)  specifies the medical condition the abortion
  is asserted to address; and
                     (B)  provides the medical rationale for the
  physician's conclusion that the abortion is necessary to address
  the medical condition; or
               (2)  for an abortion other than an abortion described
  by Subdivision (1), specify in a written document that maternal
  health is not a purpose of the abortion.
         (d)  The physician shall maintain a copy of a document
  described by Subsection (c) in the physician's practice records.
         SECTION 7.  Section 171.012, Health and Safety Code, is
  amended by amending Subsection (a) and adding Subsection (g) to
  read as follows:
         (a)  Consent to an abortion is voluntary and informed only
  if:
               (1)  the physician who is to perform or induce the
  abortion informs the pregnant woman on whom the abortion is to be
  performed or induced of:
                     (A)  the physician's name;
                     (B)  the particular medical risks associated with
  the particular abortion procedure to be employed, including, when
  medically accurate:
                           (i)  the risks of infection and hemorrhage;
                           (ii)  the potential danger to a subsequent
  pregnancy and of infertility; and
                           (iii)  the possibility of increased risk of
  breast cancer following an induced abortion and the natural
  protective effect of a completed pregnancy in avoiding breast
  cancer;
                     (C)  the probable gestational age of the unborn
  child at the time the abortion is to be performed or induced; and
                     (D)  the medical risks associated with carrying
  the child to term;
               (2)  the physician who is to perform or induce the
  abortion or the physician's agent informs the pregnant woman that:
                     (A)  medical assistance benefits may be available
  for prenatal care, childbirth, and neonatal care;
                     (B)  the father is liable for assistance in the
  support of the child without regard to whether the father has
  offered to pay for the abortion; and
                     (C)  public and private agencies provide
  pregnancy prevention counseling and medical referrals for
  obtaining pregnancy prevention medications or devices, including
  emergency contraception for victims of rape or incest;
               (3)  the physician who is to perform or induce the
  abortion or the physician's agent:
                     (A)  provides the pregnant woman with the printed
  materials described by Section 171.014; and
                     (B)  informs the pregnant woman that those
  materials:
                           (i)  have been provided by the commission
  [Department of State Health Services];
                           (ii)  are accessible on an Internet website
  sponsored by the commission [department];
                           (iii)  describe the unborn child and list
  agencies that offer alternatives to abortion; and
                           (iv)  include a list of agencies that offer
  sonogram services at no cost to the pregnant woman;
               (4)  before any sedative or anesthesia is administered
  to the pregnant woman and at least 24 hours before the abortion or
  at least two hours before the abortion if the pregnant woman waives
  this requirement by certifying that she currently lives 100 miles
  or more from the nearest abortion provider that is a facility
  licensed under Chapter 245 or a facility that performs more than 50
  abortions in any 12-month period:
                     (A)  the physician who is to perform or induce the
  abortion or an agent of the physician who is also a sonographer
  certified by a national registry of medical sonographers performs a
  sonogram on the pregnant woman on whom the abortion is to be
  performed or induced;
                     (B)  the physician who is to perform or induce the
  abortion displays the sonogram images in a quality consistent with
  current medical practice in a manner that the pregnant woman may
  view them;
                     (C)  the physician who is to perform or induce the
  abortion provides, in a manner understandable to a layperson, a
  verbal explanation of the results of the sonogram images, including
  a medical description of the dimensions of the embryo or fetus, the
  presence of cardiac activity, and the presence of external members
  and internal organs; [and]
                     (D)  the physician who is to perform or induce the
  abortion or an agent of the physician who is also a sonographer
  certified by a national registry of medical sonographers makes
  audible the heart auscultation for the pregnant woman to hear, if
  present, in a quality consistent with current medical practice and
  provides, in a manner understandable to a layperson, a simultaneous
  verbal explanation of the heart auscultation; and
                     (E)  if a fetal heartbeat is detected under
  Section 171.203, the physician who is to perform or induce the
  abortion informs the woman in writing of the statistical
  probability of bringing the unborn child to term:
                           (i)  to the best of the physician's
  knowledge, based on the gestational age of the unborn child; or
                           (ii)  as provided by commission rule;
               (5)  before receiving a sonogram under Subdivision
  (4)(A) and before the abortion is performed or induced and before
  any sedative or anesthesia is administered, the pregnant woman
  completes and certifies with her signature an election form that
  states as follows:
  "ABORTION AND SONOGRAM ELECTION
               (1)  THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY
  SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN
  PROVIDED AND EXPLAINED TO ME.
               (2)  I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN
  ABORTION.
               (3)  TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR
  TO RECEIVING AN ABORTION.
               (4)  I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE
  SONOGRAM IMAGES.
               (5)  I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE
  HEARTBEAT.
               (6)  I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN
  EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO
  ONE OF THE FOLLOWING:
               ___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,
  INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN
  REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN
  REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT
  RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
               ___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE
  WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY
  CODE.
               ___ MY UNBORN CHILD [FETUS] HAS AN IRREVERSIBLE MEDICAL
  CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC
  PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.
               (7)  I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND
  WITHOUT COERCION.
               (8)  FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE
  NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER
  245, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE
  THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
               I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR
  MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED
  UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS
  IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS
  AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION
  PROCEDURE. MY PLACE OF RESIDENCE IS:__________.
         ____________________
  ____________________
         SIGNATURE DATE";
               (6)  before the abortion is performed or induced, the
  physician who is to perform or induce the abortion receives a copy
  of the signed, written certification required by Subdivision (5);
  and
               (7)  the pregnant woman is provided the name of each
  person who provides or explains the information required under this
  subsection.
         (g)  The executive commissioner may adopt rules that specify
  the information required under Subsection (a)(4)(E) regarding the
  statistical probability of bringing an unborn child to term based
  on the gestational age of the child. The information in the rules
  must be based on available medical evidence.
         SECTION 8.  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 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;
               (10)  whether the abortion was performed or induced
  because of a medical emergency and any medical condition of the
  pregnant woman that required the abortion;
               (11)  whether the physician made a determination of the
  presence of a fetal heartbeat in accordance with Section 171.203;
  and
               (12)  whether the physician performed or induced the
  abortion under circumstances described by Section 171.205.
         SECTION 9.  Every provision in this Act and every
  application of the provision in this Act are severable from each
  other. If any provision or application of any provision in this Act
  to any person, group of persons, or circumstance is held by a court
  to be invalid, the invalidity does not affect the other provisions
  or applications of this Act.
         SECTION 10.  The change in law made by this Act applies only
  to an abortion performed or induced on or after the effective date
  of this Act.
         SECTION 11.  This Act takes effect September 1, 2021.
 
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