By Berman H.B. No. 1244
77R4567 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to fetal pain during abortion; providing a penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 170, Health and Safety Code, is amended by
1-5 adding Subchapter B to read as follows:
1-6 SUBCHAPTER B. PREVENTION OF FETAL PAIN
1-7 Sec. 170.051. DEFINITIONS. In this subchapter:
1-8 (1) "Fetus" means a member of the species Homo sapiens
1-9 from fertilization until birth.
1-10 (2) "Gestational age" means what, in the judgment of
1-11 the physician, will with reasonable probability be the gestational
1-12 age of the fetus at the time the abortion is to be performed.
1-13 (3) "Medical emergency" means any condition that so
1-14 complicates the medical condition of a pregnant woman as to
1-15 necessitate the immediate abortion of her pregnancy to avert her
1-16 death or for which a delay will create serious risk of substantial
1-17 and irreversible impairment of a major bodily function.
1-18 Sec. 170.052. FETAL PAIN INFORMATION. (a) Before an abortion
1-19 is performed on a woman whose fetus has a gestational age of at
1-20 least 20 weeks, the physician performing the abortion or the
1-21 physician's agent shall offer to the woman information and
1-22 counseling on fetal pain. The information and counseling must
1-23 include information relating to:
1-24 (1) the development of the nervous system of the fetus
2-1 and information on fetal responsiveness to adverse stimuli; and
2-2 (2) a description of the actual steps in the abortion
2-3 procedure to be performed.
2-4 (b) Before an abortion that is subject to this section is
2-5 performed, the pregnant woman must certify in writing that the
2-6 information described by Subsection (a) has been provided to her.
2-7 Sec. 170.053. FETAL PAIN PREVENTION. A physician performing
2-8 an abortion on a woman whose fetus has a gestational age of at
2-9 least 20 weeks, or the physician's agent, shall administer an
2-10 anesthetic or analgesic to eliminate or alleviate organic pain to
2-11 the fetus caused by the particular method of abortion to be
2-12 performed.
2-13 Sec. 170.054. EXCEPTIONS; MEDICAL EMERGENCY. (a) Sections
2-14 170.052 and 170.053 do not apply if in the good faith medical
2-15 judgment of the physician who is to perform the abortion or of the
2-16 referring physician, and based on the particular facts of the case
2-17 before the physician, a medical emergency exists. A physician who
2-18 performs an abortion under this subsection shall inform the
2-19 pregnant woman, before the abortion if possible, of the medical
2-20 indications supporting the physician's judgment that a medical
2-21 emergency exists.
2-22 (b) Section 170.053 does not apply if:
2-23 (1) in the good faith medical judgment of the
2-24 physician who is to perform the abortion or of the referring
2-25 physician, and based on the particular facts of the case before the
2-26 physician, the administration of an anesthetic or analgesic would:
2-27 (A) decrease, to a medically significant degree,
3-1 the possibility of sustained survival of the fetus apart from the
3-2 body of the mother, with or without artificial support; or
3-3 (B) increase the risk to the woman's life or
3-4 physical health; or
3-5 (2) the woman, on being informed by the physician or
3-6 the physician's agent of the existence of organic pain to the fetus
3-7 and the availability of anesthetics or analgesics to alleviate the
3-8 pain, refuses her consent to the administration of the analgesic or
3-9 anesthetic.
3-10 Sec. 170.055. CRIMINAL PENALTY. A person who recklessly
3-11 performs an abortion in violation of this subchapter commits an
3-12 offense. An offense under this section is a state jail felony.
3-13 Sec. 170.056. CIVIL REMEDIES. (a) A person who recklessly
3-14 performs an abortion in violation of this subchapter is liable to
3-15 the woman on whom the abortion is performed for:
3-16 (1) the actual damages incurred by the woman; and
3-17 (2) exemplary damages.
3-18 (b) Sections 41.003, 41.004, and 41.008, Civil Practice and
3-19 Remedies Code, do not apply to the award of exemplary damages under
3-20 this section.
3-21 (c) If judgment is rendered in favor of the claimant, the
3-22 court shall also award reasonable attorney's fees to the claimant
3-23 against the defendant. If judgment is rendered in favor of the
3-24 defendant and the court finds that the suit is frivolous and
3-25 brought in bad faith, the court shall award reasonable attorney's
3-26 fees to the defendant against the claimant.
3-27 Sec. 170.057. PROTECTION OF PRIVACY. (a) In a civil action
4-1 or criminal proceeding under this subchapter, the court, on its own
4-2 motion or the motion of any party, shall determine whether the
4-3 identity of a woman on whom an abortion has been performed must be
4-4 protected from public disclosure.
4-5 (b) A court that determines that the identity of the woman
4-6 must be protected from public disclosure shall, to the extent
4-7 necessary to protect the woman's identity from public disclosure,
4-8 issue appropriate orders to:
4-9 (1) ensure that the parties, witnesses, and attorneys
4-10 protect the identity of the woman from public disclosure;
4-11 (2) seal the record of the proceeding; and
4-12 (3) exclude individuals from the court or hearing
4-13 room.
4-14 (c) Each order issued under Subsection (b) must be
4-15 accompanied by specific written findings stating:
4-16 (1) the reasons that:
4-17 (A) the identity of the woman must be protected
4-18 from public disclosure;
4-19 (B) the order is necessary to protect the
4-20 woman's identity from public disclosure; and
4-21 (C) no reasonable less restrictive alternative
4-22 exists; and
4-23 (2) the manner in which the order is narrowly tailored
4-24 to serve the interest described by Subdivision (1)(A).
4-25 (d) Notwithstanding an order of a court under this section,
4-26 a woman on whom an abortion has been performed may consent to the
4-27 disclosure of her identity.
5-1 (e) This section does not authorize the concealment of the
5-2 identity of the claimant or any witnesses from the defendant.
5-3 Sec. 170.058. WOMAN NOT LIABLE. A woman on whom an abortion
5-4 has been performed is not criminally or civilly liable under this
5-5 subchapter.
5-6 Sec. 170.059. SEVERABILITY OF PROVISIONS. If any provision
5-7 of this subchapter or its application to any person or circumstance
5-8 is held invalid, the invalidity does not affect other provisions or
5-9 applications of this subchapter that can be given effect without
5-10 the invalid provision or application, and to this end the
5-11 provisions of this subchapter are severable.
5-12 SECTION 2. Sections 170.001 and 170.002, Health and Safety
5-13 Code, are redesignated as Subchapter A, Chapter 170, Health and
5-14 Safety Code, and a subchapter heading is added to read as follows:
5-15 SUBCHAPTER A. GENERAL PROVISIONS
5-16 SECTION 3. This Act takes effect September 1, 2001, and
5-17 applies only to an abortion performed on or after that date. An
5-18 abortion performed before the effective date of this Act is
5-19 governed by the law as it existed immediately before the effective
5-20 date of this Act, and that law is continued in effect for that
5-21 purpose.