87R5610 KKR-F

By: Schaefer H.B. No. 4339

A BILL TO BE ENTITLED

AN ACT

relating to prohibiting discriminatory abortions; authorizing disciplinary action; providing a civil remedy; creating a criminal offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act may be cited as the Preborn Nondiscrimination Act.

SECTION 2. The legislature finds that:

(1) Texas has a compelling state interest in protecting all Texans from discrimination based on sex, race, and disability; and

(2) Texas enforces prohibitions against discrimination based on sex, race, and disability in various areas, including housing, employment, education, insurance, and health program and service provision.

SECTION 3. Chapter 170, Health and Safety Code, is amended by designating Sections 170.001 and 170.002 as Subchapter A and adding a subchapter heading to read as follows:

SUBCHAPTER A. GENERAL PROVISIONS; POST-VIABILITY ABORTION

PROHIBITED

SECTION 4. Chapter 170, Health and Safety Code, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. DISCRIMINATORY ABORTION PROHIBITED

Sec. 170.051. DEFINITION. In this subchapter, "disability" means:

(1) a physical or mental impairment that would substantially limit one or more of an individual's major life activities;

(2) an assessment referencing an individual's impairment described by Subdivision (1); or

(3) a physical disfigurement, scoliosis, dwarfism, Down syndrome, albinism, amelia, or any other type of physical, mental, or intellectual abnormality or disease.

Sec. 170.052. DISCRIMINATORY ABORTION. A person may not:

(1) knowingly perform, induce, or attempt to perform or induce on a pregnant woman an abortion based on the race, ethnicity, sex, or disability of the woman's preborn child, including a probability of diagnosis that the child has a disability; or

(2) use force or the threat of force to intentionally injure or intimidate a person to coerce the performance, inducement, or attempted performance or inducement of an abortion based on the race, ethnicity, sex, or disability of the woman's preborn child, including a probability of diagnosis that the child has a disability.

Sec. 170.053. CRIMINAL PENALTY. (a) A person who violates Section 170.052 commits an offense. An offense under this subsection is a Class A misdemeanor.

(b) A woman on whom an abortion is performed, induced, or attempted in violation of Section 170.052 may not be prosecuted for a violation of that section or for conspiracy to commit a violation of that section.

Sec. 170.054. LICENSE SUSPENSION OR REVOCATION. A physician who violates Section 170.052 engages in unprofessional conduct for which the physician's license may be suspended or revoked under Chapter 164, Occupations Code.

Sec. 170.055. CIVIL REMEDIES. (a) A civil action may be brought against a person who violates Section 170.052 by:

(1) the woman on whom an abortion was performed, induced, or attempted in violation of Section 170.052;

(2) the father of the preborn child for an abortion performed, induced, or attempted on a pregnant woman in violation of Section 170.052, unless the woman's pregnancy resulted from the father's criminal conduct; or

(3) a maternal grandparent of the preborn child for an abortion performed, induced, or attempted in violation of Section 170.052 on a pregnant woman who was less than 18 years of age at the time of the violation, unless the woman's pregnancy resulted from the maternal grandparent's criminal conduct.

(b) A person who brings an action under this section may obtain:

(1) injunctive relief;

(2) damages incurred by the person, including:

(A) actual damages for all psychological, emotional, and physical injuries resulting from the violation of Section 170.052;

(B) court costs; and

(C) reasonable attorney's fees; or

(3) both injunctive relief and damages.

(c) An action for damages or injunctive relief under this section must be filed:

(1) in a district court in the county in which the woman on whom an abortion was performed, induced, or attempted in violation of Section 170.052 resides; and

(2) not later than the sixth anniversary of the date the abortion was performed, induced, or attempted in violation of Section 170.052.

(d) The damages and injunctive relief authorized by this section are in addition to any other remedy available by law.

(e) A civil action under this section may not be brought against a woman on whom an abortion is performed, induced, or attempted in violation of Section 170.052.

SECTION 5. Section 171.002, Health and Safety Code, is amended by adding Subdivision (3-a) to read as follows:

(3-a) "Preborn child" means an unborn child as defined by Section 171.061.

SECTION 6. Section 171.012(a), Health and Safety Code, is amended 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 preborn [unborn] child at the time the abortion is to be performed or induced; [and]

(D) the medical risks associated with carrying the preborn child to term; and

(E) the state law prohibiting abortion of a preborn child solely on the basis of the preborn child's race, ethnicity, sex, or disability as defined by Section 170.051, including a probability of diagnosis that the child has a disability;

(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 Health and Human Services Commission [Department of State Health Services];

(ii) are accessible on an Internet website sponsored by the commission [department];

(iii) describe the preborn [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;

(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 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, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY IN WHICH [THAT PERFORMS] MORE THAN 50 ABORTIONS ARE PERFORMED 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.

SECTION 7. Section 171.014(a), Health and Safety Code, is amended to read as follows:

(a) The department shall publish informational materials that include:

(1) the information required to be provided under Sections 171.012(a)(1)(B), [and] (D), and (E) and (a)(2)(A), (B), and (C); and

(2) the materials required by Sections 171.015 and 171.016.

SECTION 8. 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 preborn [unborn] child, as defined by Section 171.002, Health and Safety Code, during the third trimester of the pregnancy unless:

(A) the abortion is necessary to prevent the death of the woman;

(B) the viable preborn [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;

(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; or

(23) performs, induces, or attempts to perform or induce an abortion or engages in other conduct in violation of Section 170.052, Health and Safety Code.

SECTION 9. 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 170.052, Health and Safety Code, or Subchapter C, F, or G, Chapter 171, Health and Safety Code.

SECTION 10. Not later than December 1, 2021:

(1) the Health and Human Services Commission shall update any forms and informational materials under Subchapter B, Chapter 171, Health and Safety Code, as amended by this Act; and

(2) the executive commissioner of the Health and Human Services Commission shall adopt any rules necessary to implement Subchapter B, Chapter 171, Health and Safety Code, as amended by this Act.

SECTION 11. The changes in law made by this Act to Chapters 170 and 171, Health and Safety Code, and Chapter 164, Occupations Code, apply only to an abortion performed, induced, or attempted or other conduct that occurred on or after January 1, 2022. An abortion performed, induced, or attempted or other conduct that occurred before that date 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 12. 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 to each person or entity, 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 for any reason, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected.

SECTION 13. This Act takes effect September 1, 2021.