BILL ANALYSIS

C.S.H.B. 7

By: Leach

State Affairs

Committee Report (Substituted)

BACKGROUND AND PURPOSE

The bill author has informed the committee that, following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization (2022), which overturned Roe v. Wade, states have regained the authority to protect women and unborn children from abortion but that in recent years, abortion-inducing drugs are being purchased online from out-of-state abortion providers and entities. As reported in the Texas Tribune, an average of 2,800 Texans receive abortion-inducing drugs each month according to #WeCount, a tracking project from the Society of Family Planning. The bill author also has informed the committee that, without in-person medical care, follow-up care, or preventative testing—such as a physical exam, diagnostic ultrasound, or blood test—it is possible that serious health risks from the use of abortion-inducing drugs may arise, including sepsis, failure to detect Rh factor incompatibility or ectopic pregnancy, loss of fallopian tubes, hemorrhage, and death. Furthermore, the bill author has informed the committee that the use of abortion-inducing drugs that are purchased online from out-of-state providers and entities may lead to an increase in incidents of forced abortion, abuse, and crimes against women by abusers and human traffickers. C.S.H.B. 7 seeks to enact the Woman and Child Protection Act, providing certain prohibitions on the manufacture and provision of abortion-inducing drugs, including the jurisdiction of and the effect of certain judgments by courts within and outside Texas with respect to the manufacture and provision of those drugs, and providing protections from certain counter actions under the laws of other states and jurisdictions. Moreover, the bill authorizes qui tam actions under specified conditions.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

Abortion-Inducing Drugs

C.S.H.B. 7 amends the Health and Safety Code to set out provisions relating to abortion-inducing drugs.

General Provisions

Definitions

C.S.H.B. 7 defines the following terms for purposes of the bill's provisions:

· "abortion" by reference to the meaning assigned by the Texas Abortion Facility Reporting and Licensing Act;

· "abortion-inducing drug" by reference to the meaning assigned by the provisions of the Woman's Right to Know Act relating to abortion-inducing drugs;

· "delivery network company," "delivery person," "digital network," "digitally prearranged delivery," "digitally prearranged ride," "driver," and "transportation network company" by reference to the applicable meanings of those terms assigned by Occupations Code provisions governing transportation network companies;

· "health care facility" by reference to the meaning assigned by statutory provisions governing health care data collection, except the term does not include a hospital;

· "health care provider" as an individual who is licensed, certified, or otherwise authorized by the state to diagnose, prevent, alleviate, or cure a human illness or injury, except the term does not include a physician;

· "hospital" as the following:

o a hospital licensed under the Texas Hospital Licensing Law or under Texas Mental Health Code provisions relating to private mental hospitals and other mental health facilities; or

o a hospital owned, maintained, or operated by the state;

· "medical emergency" as a condition that, as described by state law providing for an exception to the application of the state law prohibiting a physician from knowingly performing, inducing, or attempting an abortion, in exercising reasonable medical judgment,  is a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced, wherein "life-threatening," for purposes of the described condition, means capable of causing death or potentially fatal and wherein the life-threatening condition is not necessarily one actively injuring the patient;

· "physician" as an individual licensed to practice medicine in Texas, including a medical doctor and a doctor of osteopathic medicine; and

· "physician group" as an entity, including an entity described in the definition of "physician" under Civil Practice and Remedies Code provisions governing medical liability, that is formed by a physician or group of physicians to provide medical services.

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Applicability and Construction of Bill Provisions

C.S.H.B. 7 establishes that the bill's provisions do not apply to and a civil action under the bill's provisions may not be brought against the following:

· a hospital;

· a health care facility licensed, owned, maintained, or operated by the state;

· a health care provider or a physician, other than a provider or physician against whom a qui tam action may be brought in accordance with the bill's provisions authorizing a qui tam action, as subsequently described, unless the qui tam relator pleads and proves that the provider or physician engaged in conduct constituting a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs while located outside Texas;

· a physician group;

· an Internet service provider or the provider's affiliates or subsidiaries;

· an Internet search engine;

· a cloud service provider solely providing access or connection to or from a website or other information or content on the Internet or on a facility, system, or network that is not under the provider's control, including transmission, downloading, intermediate storage, access software, or other services; or

· a person who manufactures, distributes, mails, transports, delivers, prescribes, provides, or possesses abortion-inducing drugs in Texas solely for one or more of the following purposes:

o treating a medical emergency;

o removing an ectopic pregnancy;

o removing a dead, unborn child whose death was caused by spontaneous abortion; or

o a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency.

The bill expressly prohibits its provisions from being construed to require the actual performance, inducement, or attempted performance of an abortion in order for a person to bring a civil action authorized by the bill's provisions.

Protection From Abortion-Inducing Drugs

Prohibitions Related to Abortion-Inducing Drugs

C.S.H.B. 7 establishes that, except as otherwise provided by this bill's provision establishing prohibitions related to abortion-inducing drugs or by the previously described bill provisions providing for the applicability and construction of its provisions, a person may not do the following:

· manufacture or distribute an abortion-inducing drug in Texas; or

· mail, transport, deliver, prescribe, or provide an abortion-inducing drug in any manner to or from any person or location in Texas.

However, this bill provision expressly does not prohibit the following:

· speech or conduct protected by the First Amendment to the U.S. Constitution, as made applicable to the states through the U.S. Supreme Court's interpretation of the Fourteenth Amendment to the U.S. Constitution or protected by provisions of the Texas Constitution relating to the freedom of speech and press and to libel;

· conduct a pregnant woman takes in the course of aborting or attempting to abort the woman's unborn child;

· the manufacture, distribution, mailing, transport, delivery, prescribing, provision, or possession of an abortion-inducing drug solely for one or more of the purposes, as previously described by the bill's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency; or

· conduct a person takes under the direction of a federal agency, contractor, or employee to carry out a duty under federal law, if prohibiting that conduct would violate the doctrine of preemption or intergovernmental immunity.

Exclusive Enforcement; Effect of Other Law

C.S.H.B. 7 establishes the following:

· the bill's provisions relating to protection from abortion-inducing drugs may be enforced only through a qui tam action brought under the bill's provisions, as subsequently described, regarding such qui tam enforcement of the bill's prohibitions relating to abortion-inducing drugs; and

· no other direct or indirect enforcement of the bill's provisions relating to protection from abortion-inducing drugs may be taken or threatened by the state, a political subdivision of the state, a district or county attorney, or any officer or employee of the state or a political subdivision of the state against any person, by any means whatsoever, except as provided in the bill's provisions, as subsequently described, regarding the qui tam enforcement of the bill's prohibitions relating to abortion-inducing drugs.

These bill provisions regarding exclusive enforcement of the bill's provisions relating to protection from abortion-inducing drugs and the effect of other law expressly do not preclude or limit the enforcement of any other law or regulation against conduct that is independently prohibited by the other law or regulation and that would remain prohibited by the other law or regulation in the absence of the bill's provisions relating to protection from abortion-inducing drugs.

Qui Tam Enforcement of Prohibitions Relating to Abortion-Inducing Drugs

Qui Tam Action Authorized

C.S.H.B. 7 establishes that a person, other than the state, a political subdivision of the state, or an officer or employee of the state or a political subdivision of the state, has standing to bring and may bring a qui tam action against a person who violates the previously described bill provisions relating to prohibitions related to abortion-inducing drugs or who intends to violate those bill provisions.

C.S.H.B. 7 provides for the following with respect to such a qui tam action:

· an action brought under the bill's provisions authorizing such an action must be brought in the name of the qui tam relator, who is an assignee of the state's claim for relief and, notwithstanding any other law, the transfer of the state's claim to the qui tam relator is absolute, with the state retaining no interest in the subject matter of the claim;

· a qui tam relator may not bring an action under the bill's provisions authorizing such an action if the action is preempted by specified federal law relating to protections for "Good Samaritan" blocking and screening of offensive material;

· a qui tam action may not be brought, as follows, under the bill's provisions authorizing such an action:

o against a woman for using, obtaining, or seeking to obtain abortion-inducing drugs to abort or attempt to abort her unborn child;

o against a person acting under the direction of a federal agency, contractor, or employee who is carrying out a duty under federal law if the imposition of liability would violate the doctrine of preemption or intergovernmental immunity;

o by any person who:

§ impregnated a woman through conduct constituting sexual assault or aggravated sexual assault under the applicable Penal Code provisions;

§ committed an offense for which an affirmative finding of family violence was made under the applicable Code of Criminal Procedure provisions;

§ provided an abortion-inducing drug to a pregnant woman for the purpose of performing, inducing, or attempting an abortion without the woman's consent or knowledge;

§ has been convicted of a stalking offense under the applicable Penal Code provisions; or

§ acts in concert or participation with such a person described by these provisions;

o against a transportation network company or a driver for using a transportation network company's digital network to provide a digitally prearranged ride;

o against a delivery network company or a delivery person for using a delivery network company's digital network to provide a digitally prearranged delivery;

o against an air carrier conducting domestic, flag, or supplemental operations under specified federal regulations relating to operating requirements for such purposes or a foreign air carrier conducting scheduled operations under specified federal regulations relating to operations for purposes of foreign air carriers and foreign operators of U.S.-registered aircraft engaged in common carriage;

o against a person to whom the bill's provisions do not apply and against whom a civil action under the bill's provisions may not be brought under the previously described bill's provisions providing for the applicability and construction of bill provisions;

o against a health care provider or physician, unless the qui tam relator pleads and proves that the provider or physician engaged in conduct constituting a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs while located outside Texas; or

o against a pharmaceutical manufacturer, pharmaceutical distributor, or common carrier, unless the qui tam relator pleads and proves that the defendant failed to adopt and implement a policy to not distribute, mail, transport, deliver, provide, or possess abortion-inducing drugs other than for one or more of the purposes, as previously described by the bill's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency;

· notwithstanding any other law, including rules of civil procedure adopted under Civil Practice and Remedies Code provisions governing class actions, an action brought under the bill's provisions authorizing a qui tam action may not be litigated on behalf of a claimant class or a defendant class, and a court may not certify a class in the action;

· in an action brought under the bill's provisions, a qui tam relator or a defendant against whom an action is brought under these bill provisions authorizing a qui tam action may not, without the consent of the person to whom the information belongs, publicly disclose or improperly obtain the following:

o any personally identifiable information of a pregnant woman who sought or obtained an abortion-inducing drug from a defendant against whom a qui tam action is brought under these bill provisions authorizing a qui tam action, including any written, electronic, audio, or visual document or media that identifies the pregnant woman;

o any information protected from public disclosure under the federal Health Insurance Portability and Accountability Act of 1996 and regulations adopted under that act; or

o any personal data of a pregnant woman who sought or obtained an abortion-inducing drug from a defendant against whom a qui tam action is brought under these bill provisions authorizing a qui tam action that is protected from public disclosure under federal or state law; and

· notwithstanding any other law, a court may not order in response to the filing of a petition by a qui tam relator the taking of a deposition under Rule 202, Texas Rules of Civil Procedure, relating to depositions before a suit or to investigate claims, of a woman who is the subject of a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs, unless the woman consents to the deposition.

Defenses

C.S.H.B. 7 establishes as an affirmative defense to an action brought under the bill's provisions authorizing a qui tam action that the defendant, as follows:

· was unaware the defendant was engaged in the conduct prohibited by the bill's provisions regarding prohibitions related to abortion-inducing drugs; and

· took reasonable precautions to ensure the defendant would not violate those bill provisions regarding such prohibitions.

The bill also establishes as an affirmative defense to an action brought under the bill's provision authorizing a qui tam action that, as follows:

· the imposition of civil liability on the defendant will violate the defendant's rights under federal law, including the U.S. Constitution;

· the defendant has standing to assert the rights of a third party under the tests for third-party standing established by the U.S. Supreme Court and demonstrates that the imposition of civil liability on the defendant will violate the third party's rights under federal law, including the U.S. Constitution;

· the imposition of civil liability on the defendant will violate the defendant's rights under the Texas Constitution; or

· the imposition of civil liability on the defendant will violate limits on extraterritorial jurisdiction imposed by the U.S. Constitution or the Texas Constitution.

The bill establishes that a defendant has the burden of proving an affirmative defense under these bill provisions regarding defenses by a preponderance of the evidence.

C.S.H.B. 7 establishes that the following are not defenses to a qui tam action brought under the bill's provisions authorizing a qui tam action:

· a defendant's ignorance or mistake of law, including a defendant's mistaken belief that the bill's requirements or the bill's provisions are unconstitutional or were unconstitutional;

· a defendant's reliance on a state or federal court decision that is not binding on the court in which the action has been brought;

· a defendant's reliance on a federal agency rule or action that has been repealed, superseded, or declared invalid or unconstitutional, even if the federal agency rule or action had not been repealed, superseded, or declared invalid or unconstitutional when the cause of action accrued;

· the laws of another state or jurisdiction, including an abortion shield law, unless the Texas Constitution or federal law compels the court to enforce that law;

· non-mutual issue preclusion or non-mutual claim preclusion;

· sovereign immunity, governmental immunity, or official immunity, other than sovereign immunity, governmental immunity, or official immunity applicable to the following:

o a hospital owned, maintained, or operated by the state that facilitates the availability of or makes available abortion-inducing drugs solely for one or more of the purposes, as previously described by the bill's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency;

o a political subdivision of the state, including a hospital district, that facilitates the availability of or makes available abortion-inducing drugs solely for one or more of the purposes, as previously described by the bill's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency; or

o a physician or other health care professional employed by a hospital owned or operated by the state or a political subdivision of the state, including a hospital district, acting within the scope of the physician's or professional's employment who prescribes, distributes, administers, or otherwise makes available abortion-inducing drugs solely for one or more of the purposes, as previously described by the bill's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency;

· a claim that the enforcement of the bill's provisions or the imposition of civil liability against the defendant will violate the constitutional or federally protected rights of third parties, except as provided by the previously described affirmative defense, with respect to the imposition of civil liability, established under these bill provisions regarding defenses; or

· consent to the abortion by the claimant or the unborn child's mother.

Statute of Limitations

C.S.H.B. 7 authorizes a person to bring a qui tam action under the bill's provisions not later than the sixth anniversary of the date the cause of action accrues.

Remedies

C.S.H.B. 7 establishes that, notwithstanding any other law and except as provided under this bill provision regarding remedies and subsequently described, if a qui tam relator prevails in a qui tam action brought under the bill's provisions, the court must award the following to the relator:

· injunctive relief sufficient to prevent the defendant from violating the bill's provisions relating to prohibitions related to abortion-inducing drugs;

· an amount of not less than $100,000 for each violation of the bill's provisions relating to prohibitions related to abortion-inducing drugs, to be allocated in accordance with these bill provisions regarding remedies as subsequently described; and

· costs and reasonable attorney's fees.

In awarding the amount previously described for each violation of the bill's provisions relating to the applicable prohibitions, the court must ensure that:

· the qui tam relator receives the entire amount awarded under these bill provisions for an action in which the relator is:

o a woman who was pregnant at the time the woman obtained or received an abortion-inducing drug that was manufactured, distributed, mailed, transported, delivered, prescribed, provided, or possessed in violation of the bill's provisions relating to prohibitions related to abortion-inducing drugs; or

o the father, sibling, or grandparent of the unborn child with which the previously described woman was pregnant at the time the woman obtained or received the abortion-inducing drug; and

· for an action in which the qui tam relator is a person other than such a previously described woman, father, sibling, or grandparent:

o the relator receives $10,000 of the total amount awarded under these bill provisions with respect to the amount so awarded under these bill provisions; and

o the remainder of the amount so awarded under these bill provisions is held in trust by the relator for the benefit of a charitable organization designated by the relator, except that the relator may not designate a charitable organization under this provision from which the relator or any of the relator's family members receives a salary, stipend, or any type of remuneration or financial benefit.

C.S.H.B. 7 establishes, however, that a court may not award those previously described amounts or costs and attorney's fees in response to a violation of the bill's provisions relating to prohibitions related to abortion-inducing drugs if the defendant demonstrates that:

· a court previously ordered the defendant to pay an amount as previously described under these bill provisions in another action for that particular violation; and

· that court order has not been vacated, reversed, or overturned.

C.S.H.B. 7 prohibits a court from awarding costs or attorney's fees under the Texas Rules of Civil Procedure or any other rule adopted by the Texas Supreme Court under the applicable Government Code provisions relating to rules of civil procedure to a defendant against whom a qui tam action is brought under the bill's provisions. However, this bill provision establishing the prohibition expressly does not preclude a court from doing the following:

· awarding sanctions under Civil Practice and Remedies Code provisions relating to sanctions for frivolous pleadings and motions; or

· sanctioning a litigant or attorney for frivolous, malicious, or bad-faith conduct.

Coordinated Enforcement Prohibited

C.S.H.B. 7 prohibits the state, a political subdivision of the state, or an officer or employee of the state or a political subdivision of the state from doing the following:

· acting in concert or participation with a qui tam relator bringing an action under the bill's provisions authorizing a qui tam action;

· establishing or attempting to establish any type of agency or fiduciary relationship with a qui tam relator bringing an action under the bill's provisions authorizing a qui tam action;

· attempting to control or influence a person's decision to bring an action under the bill's provisions authorizing a qui tam action or that person's conduct of the litigation; or

· intervening in an action brought under the bill's provisions authorizing a qui tam action.

These bill provisions regarding prohibited coordinated enforcement expressly do not prohibit the state, a political subdivision of the state, or an officer or employee of the state or a political subdivision of the state from filing an amicus curiae brief in an action brought under the bill's provisions authorizing a qui tam action if the state, the political subdivision, the officer, or the employee does not act in concert or participation with the qui tam relator.

Jurisdiction; Applicability of State Law

C.S.H.B. 7 establishes that, notwithstanding any other law, including specified Civil Practice and Remedies Code provisions regarding long-arm jurisdiction in a suit on a business transaction or tort, Texas courts have personal jurisdiction over a defendant sued under the bill's provisions authorizing a qui tam action to the maximum extent permitted by the Fourteenth Amendment to the U.S. Constitution and establishes that the defendant may be served outside Texas. The bill also establishes the following and specifies that the following apply notwithstanding any other law:

· state law applies to an action brought under the bill's provisions authorizing a qui tam action to the maximum extent permitted by the Texas Constitution and federal law, including the U.S. Constitution;

· any contractual provision that requires or purports to require application of the laws of a different jurisdiction, or that requires or purports to require a qui tam action under the bill's provisions to be litigated in a particular forum, is void based on the state's public policy and is not enforceable in any court; and

· Civil Practice and Remedies Code provisions relating to actions involving the exercise of certain constitutional rights do not apply to an action brought under the bill's provisions authorizing a qui tam action.

Appeals

C.S.H.B. 7 grants the Fifteenth Court of Appeals exclusive intermediate appellate jurisdiction over any appeal or original proceeding arising out of an action brought under the bill's provisions authorizing a qui tam action in Texas courts.

Application of Other Law

C.S.H.B. 7 establishes that, notwithstanding any other law, a court may not apply the law of another state or jurisdiction to any qui tam action brought under the bill's provisions unless the Texas Constitution or federal law compels the court to apply that law.

Protection From Certain Counteractions

Effect of Clawback Provisions

C.S.H.B. 7 establishes that, for purposes of the bill's provisions relating to the effect of clawback provisions, the term "clawback provision" refers to any law of another state or jurisdiction that authorizes the bringing of a civil action against a person for the following conduct:

· bringing or engaging in an action authorized by the bill's provisions relating to abortion-inducing drugs, including an action under the subsequently described bill provision entitling a person to certain injunctive relief and damages with respect to an applicable action brought or judgment entered against the person under a clawback provision;

· bringing or engaging in an action that alleges a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs;

· attempting, intending, or threatening to bring or engage in either of those previously described actions; or

· providing legal representation or any type of assistance to a person who brings or engages in either of those previously described actions.

C.S.H.B. 7 establishes that, notwithstanding any other law and except as otherwise provided by federal law or the Texas Constitution, the state's laws apply to the following:

· the conduct as previously described by the bill's provisions specifying such conduct for purposes of the use of the term "clawback provision";

· an action brought against a person for engaging in that previously described conduct;

· an action brought under a clawback provision against a Texas resident; and

· an action brought under the subsequently described bill provision that entitles a person to certain injunctive relief and damages with respect to an applicable action brought or judgment entered against the person under a clawback provision.

C.S.H.B. 7 establishes that, in an action previously described by the bill provision with respect to a person who brings or engages in such an action, the court must, on request, issue a temporary, preliminary, or permanent injunction that restrains each defendant in the action, each person in privity with the defendant, and each person with whom the defendant is in active concert or participation from the following:

· bringing an action under any clawback provision against a claimant or prosecutor, a person in privity with the claimant or prosecutor, or a person providing legal representation or any type of assistance to the claimant or prosecutor; and

· continuing to litigate an action under any clawback provision that has been brought against a claimant or prosecutor, a person in privity with the claimant or prosecutor, or a person providing legal representation or any type of assistance to the claimant or prosecutor.

The bill specifies that this requirement for the court to issue an applicable injunction applies notwithstanding any other law.

C.S.H.B. 7 establishes that, notwithstanding any other law, the doctrines of res judicata and collateral estoppel preclude a defendant against whom a judgment is entered in an action previously described by the bill's provision with respect to a person who brings or engages in such an action and each person in privity with the defendant from litigating or relitigating any claim or issue under any clawback provision against a claimant, prosecutor, or person in privity with the claimant or prosecutor that was raised or could have been raised as a claim, cross claim, counterclaim, or affirmative defense under the federal or the state's rules of civil procedure.

C.S.H.B. 7 establishes that, notwithstanding any other law, a Texas court, may not enforce an out‑of‑state judgment obtained in an action brought under a clawback provision unless federal law or the Texas Constitution requires the court to enforce the judgment.

C.S.H.B. 7 establishes that, notwithstanding any other law, if an action is brought or judgment is entered against a person under a clawback provision based wholly or partly on the person's decision to engage in conduct as previously described by the bill's provision specifying such conduct for purposes of the use of the term "clawback provision," that person is entitled to injunctive relief and damages from any person who brought the action or obtained the judgment or who sought to enforce the judgment. The bill also establishes that, notwithstanding any other law, the relief described by this bill provision must include the following:

· compensatory damages, including money damages in an amount equal to the judgment damages and costs, expenses, and reasonable attorney's fees spent in defending the action;

· costs, expenses, and reasonable attorney's fees incurred in bringing an action under this bill provision;

· additional amounts consisting of the greater of the following:

o twice the sum of such damages, costs, expenses, and fees described by these provisions; or

o $100,000; and

· injunctive relief that restrains each person who brought the action under the clawback provision, each person in privity with the person, and each person acting in concert or participation with the person from the following:

o bringing further actions under any clawback provision against the person against whom the action was brought, each person in privity with the person, or any person providing legal representation or any type of assistance to the person;

o continuing to litigate any actions brought under a clawback provision against those previously described persons; and

o enforcing or attempting to enforce any judgment obtained in any actions brought under a clawback provision against those previously described persons.

Moreover, the bill establishes that it is not a defense to an action brought under these bill provisions that the claimant failed to seek recovery under these bill provisions in an action brought against the claimant under a clawback provision or that a court in a preceding action brought against the claimant declined to recognize or enforce these bill provisions or held any provision of these bill provisions invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion. The bill also establishes that:

· notwithstanding any other law, provisions of the Civil Practice and Remedies Code relating to actions involving the exercise of certain constitutional rights do not apply to an action brought under these bill provisions; and

· the Fifteenth Court of Appeals has exclusive intermediate appellate jurisdiction over any appeal or original proceeding arising out of a civil action brought under these bill provisions in the courts of the state.

Applicability

C.S.H.B. 7 applies only to a cause of action that accrues on or after the bill's effective date.

Severability

C.S.H.B. 7 establishes that it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in the bill, and every application of the provisions in the bill to every person, group of persons, or circumstances, is severable from each other and establishes that, if any application of any provision in the bill 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 must be severed and may not be affected.

EFFECTIVE DATE

91st day after the last day of the legislative session.

COMPARISON OF INTRODUCED AND SUBSTITUTE

While C.S.H.B. 7 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

Applicability and Construction of Bill Provisions

Both the introduced and the substitute establish that the bill's provisions do not apply to and a civil action under the bill's provisions may not be brought against certain entities or persons. However, the two versions differ with respect to the entities or persons included for purposes of that provision, as follows:

· whereas the introduced included a health care provider who practices exclusively in Texas or a physician who resides and practices medicine exclusively in Texas, the substitute instead includes a health care provider or physician, other than a provider or physician against whom a qui tam action may be brought in accordance with the bill's provisions authorizing a qui tam action, unless the qui tam relator pleads and proves that the provider or physician engaged in conduct constituting a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs while located outside Texas; and

· both the introduced and the substitute include a physician group, but the substitute omits the specification from the introduced that the physician group be located entirely in Texas.

Moreover, while both the introduced and the substitute provide that the bill's provisions do not apply to and a civil action may not be brought against a person who manufactures, distributes, mails, transports, delivers, prescribes, provides, or possesses abortion-inducing drugs solely for one or more of certain purposes as specified by the bill, the versions differ as follows:

· the substitute specifies that such manufacturing, distribution, mailing, transporting, delivering, prescribing, providing, or possessing apply with respect to such actions in Texas, but the introduced did not make that specification; and

· the introduced made the provision applicable to a purpose that does not include performing, inducing, attempting, or assisting an abortion, whereas the substitute makes the provision applicable to a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency.

The substitute includes a provision, absent from the introduced, expressly prohibiting the bill's provisions from being construed to require the actual performance, inducement, or attempted performance of an abortion in order for a person to bring a civil action authorized by the bill's provisions.

Prohibitions Related to Abortion-Inducing Drugs

The introduced and the substitute both establish that the bill provision establishing that a person may not take certain actions with respect to abortion-inducing drugs does not prohibit the distribution, mailing, transport, delivery, provision, or possession of an abortion-inducing drug for certain specified purposes. However, the substitute additionally makes that provision applicable to the manufacture and prescribing of an abortion-inducing drug for those purposes, which the introduced did not do.

Qui Tam Enforcement of Prohibitions Relating to Abortion-Inducing Drugs

Qui Tam Action Authorized

With respect to a qui tam action authorized under both the introduced and the substitute, while both the introduced and the substitute establish that a qui tam action may not be brought by or against certain persons or entities, as applicable, the introduced and the substitute differ as follows:

· whereas the introduced established that such a qui tam action may not be brought by any person who impregnated a woman through conduct constituting an offense for which an affirmative finding of family violence was made under the applicable Code of Criminal Procedure provisions or by another person who acts in concert or participation with such a person, the substitute makes the prohibition applicable to a person who committed an such an offense for which that finding is made, with regard to whether the person impregnated the woman;

· the substitute includes provisions, absent from the introduced, establishing that a qui tam action may not be brought by any person who, as follows:

o provided an abortion-inducing drug to a pregnant woman for the purpose of performing, inducing, or attempting an abortion without the woman's consent or knowledge; or

o has been convicted of a stalking offense under the applicable Penal Code provisions;

· the substitute establishes that such a qui tam action may not be brought against an air carrier conducting domestic or flag operations under applicable federal regulations or a foreign air carrier conducting scheduled operations under applicable federal regulations, which the introduced did not establish; and

· the substitute includes a provision clarifying that such a qui tam action may not be brought against a person to whom the bill's provisions do not apply and against whom a civil action under the bill's provisions may not be brought with regard to the applicability and construction of the substitute's provisions.

Moreover, the substitute does not include the provisions of the introduced establishing that a qui tam action may not be brought against a health care provider, pharmacy, pharmaceutical manufacturer, pharmaceutical distributor, physician, or common carrier unless the qui tam relator pleads and proves the defendant, as follows:

· knowingly failed to take reasonable precautions to ensure that the defendant would not manufacture, distribute, mail, transport, deliver, prescribe, provide, possess, or aid or abet the manufacture, distribution, mailing, transportation, delivery, prescription, provision, or possession of abortion-inducing drugs other than solely for a purpose, as described by the introduced version's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion; or

· failed to adopt and implement a policy to not manufacture, distribute, mail, transport, deliver, prescribe, provide, possess, or aid or abet the manufacture, distribution, mailing, transportation, delivery, prescription, provision, or possession of abortion-inducing drugs other than for that previously described purpose.

The substitute, however, establishes that a qui tam action instead may not be brought against the following:

· a health care provider or physician, unless the qui tam relator pleads and proves that the provider or physician engaged in conduct constituting a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs while located outside Texas; or

· a pharmaceutical manufacturer, pharmaceutical distributor, or common carrier, unless the qui tam relator pleads and proves that the defendant failed to adopt and implement a policy to not distribute, mail, transport, deliver, provide, or possess abortion-inducing drugs other than solely for one or more of the purposes, as described by the substitute's provisions, of treating a medical emergency, removing an ectopic pregnancy, removing a dead, unborn child whose death was caused by spontaneous abortion, or a purpose that does not include performing, inducing, attempting, or assisting an abortion, other than an abortion performed in response to a medical emergency.

Whereas the introduced established that a qui tam relator may not disclose the name of a pregnant woman who sought or obtained abortion-inducing drugs from the defendant in any publicly available court filing, the substitute establishes that a qui tam relator or a defendant against whom an action is brought under the bill's provisions authorizing a qui tam action may not, without the consent of the person to whom the information belongs, publicly disclose or improperly obtain the following:

· any personally identifiable information of a pregnant woman who sought or obtained an abortion-inducing drug from a defendant against whom a qui tam action is brought, including any written, electronic, audio, or visual document or media that identifies the pregnant woman;

· any information protected from public disclosure under the federal Health Insurance Portability and Accountability Act of 1996 and regulations adopted under that act; or

· any personal data of a pregnant woman who sought or obtained an abortion-inducing drug from a defendant against whom a qui tam action is brought that is protected from public disclosure under federal or state law.

The substitute includes a provision, absent from the introduced, establishing that, notwithstanding any other law, a court may not order in response to the filing of a petition by a qui tam relator the taking of a deposition under Rule 202, Texas Rules of Civil Procedure, relating to depositions before a suit or to investigate claims, of a woman who is the subject of a violation of the bill's provisions regarding prohibitions related to abortion-inducing drugs, unless the woman consents to the deposition

Venue

The substitute omits the provisions from the introduced that established the following regarding venue of a qui tam action:

· that, notwithstanding any other law, including Civil Practice and Remedies Code provisions relating to venues for purposes of trial matters, a qui tam action may be brought in the following venues:

o the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

o the county of a defendant's residence at the time the cause of action accrued if a defendant is an individual;

o the county of the principal office in Texas of a defendant that is not an individual; or

o the county of the claimant's residence if the claimant is an individual residing in Texas;

· that, if a qui tam action is brought in such a described venue, the action may not be transferred to a different venue without the written consent of all parties to the action; and

· that any contractual choice-of-forum provision that requires or purports to require a qui tam action to be litigated in a particular forum is void based on the state's public policy and is not enforceable in any court.

Defenses

The substitute omits the provision from the introduced that established that a defendant's reliance on a court decision, other than a decision of the U.S. Supreme Court, the Supreme Court of Texas, or the Fifteenth Court of Appeals, that has been vacated, reversed, or overruled on appeal or by a subsequent court, even if the court decision had not been vacated, reversed, or overruled when the cause of action accrued, is not a defense to a qui tam action.

Statute of Limitations

The substitute extends the date by which a person may bring a qui tam action under the bill's provisions from not later than the fourth anniversary of the date the cause of action accrues, as in the introduced, to not later than the sixth anniversary of that date.

Remedies

The introduced and the substitute both provide for remedies with regard to a qui tam relator who prevails in a qui tam action. However, they differ in that the introduced established that, notwithstanding any other law and except as provided by the introduced version's provisions, if a qui tam relator prevails in a qui tam action, the court must award to the relator statutory damages in an amount of not less than $100,000 for each violation of the applicable prohibitions but the substitute does not include the specification the amount is statutory damages and includes the specification that the amount instead is to be allocated in accordance with the substitute's provisions requiring that the court ensure that, as follows:

· the qui tam relator receives the entire amount awarded under the substitute's provisions for an action in which the relator is:

o a woman who was pregnant at the time the woman obtained or received an abortion-inducing drug that was manufactured, distributed, mailed, transported, delivered, prescribed, provided, or possessed in violation of the applicable prohibitions; or

o the father, sibling, or grandparent of the unborn child with which the woman was pregnant at the time the woman obtained or received the abortion-inducing drug; and

· for an action in which the qui tam relator is a person other than the woman or the father, sibling, or grandparent of the unborn child:

o the relator receives $10,000 of the total amount awarded; and

o the remainder of the amount awarded is held in trust by the relator for the benefit of a charitable organization designated by the relator, except that the relator may not designate a charitable organization from which the relator or any of the relator's family members receives a salary, stipend, or any type of remuneration or financial benefit.

Jurisdiction; Applicability of State Law

While both the introduced and the substitute both void certain contractual provisions that require or purport to require application of the laws of a different jurisdiction based on the state's public policy and establishes that such a provision is not enforceable in any court, they differ as follows:

· the introduced specified that those contractual provisions are choice-of law provisions but the substitute does not specify those provisions as such, thereby making the provision applicable to any contractual provision;

· the substitute, in a provision absent from the introduced, makes the provision applicable to any contractual provision that requires or purports to require a qui tam action to be litigated in a particular forum.

While both the introduced and the substitute make Civil Practice and Remedies Code provisions relating to actions involving the exercise of certain constitutional rights inapplicable to a qui tam action, the substitute does not include the provision from the introduced that made Civil Practice and Remedies Code provisions relating to religious freedoms inapplicable to qui tam actions.

Standing to Seek Certain Relief

The substitute omits the provision from the introduced that established that, notwithstanding Civil Practice and Remedies Code provisions relating to declaratory judgments, a person does not have standing to seek declaratory or injunctive relief in Texas courts to restrain a qui tam relator from bringing a qui tam action under the bill's provisions.

Effect of Clawback Provisions

The substitute and the introduced both include provisions establishing that, for purposes of the bill's provisions relating to the effect of clawback provisions, the term "clawback provision" refers to any law of another state or jurisdiction that authorizes the bringing of a civil action against a person for certain actions. However, whereas the introduced included among those certain actions the bringing or engaging in a criminal prosecution of an offense involving a person who intentionally, knowingly, or recklessly violates provisions of the Woman's Right to Know Act relating to abortion-inducing drugs that is based on a violation of the prohibition under that act against a manufacturer, supplier, physician, or any other person providing an abortion-inducing drug to a patient by courier, delivery, or mail service, the substitute does not include such an action in that definition but, rather, includes among those certain actions bringing or engaging in an action that alleges a violation of the substitute's prohibitions related to abortion-inducing drugs. The substitute accordingly does the following:

· replaces references to such a criminal prosecution described by the introduced version's provisions with references to the applicable action regarding the prohibitions described by the substitute's provisions for purposes of the clawback provisions; and

· omits the reference to the state's rules of criminal procedure in the introduced version's provision that established that, notwithstanding any other law, the doctrines of res judicata and collateral estoppel preclude an applicable defendant and each person in privity with the defendant from litigating or relitigating any claim or issue under any clawback provision against a claimant, prosecutor, or person in privity with the claimant or prosecutor that was raised or could have been raised as a claim, cross claim, counterclaim, or affirmative defense under the federal or the state's rules of civil or criminal procedure.

The substitute omits the specification that the relief described by the bill's provision entitling a person to certain injunctive relief and damages with respect to an applicable action brought or judgment entered against the person under a clawback provision must include additional statutory damages, costs, expenses, and reasonable attorney's fees consisting of the greater of twice the sum of statutory damages, costs, expenses, and fees as described by the bill's provisions or $100,000. The substitute specifies that such relief instead must include additional amounts consisting of the greater of that sum or $100,000.