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78R3446 DLF-F
By: Berman H.B. No. 569
A BILL TO BE ENTITLED
AN ACT
relating to fetal pain prevention; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 170, Health and Safety Code, is amended
by adding Subchapter B to read as follows:
SUBCHAPTER B. FETAL PAIN PREVENTION
Sec. 170.051. DEFINITIONS. In this subchapter:
(1) "Abortion" means the use or prescription of any
instrument, medicine, drug, or any other substance or device
intentionally to terminate the pregnancy of a female known to be
pregnant with an intention other than to increase the probability
of a live birth, to preserve the life or health of the child after
live birth, or to remove a dead fetus.
(2) "Attempt to perform an abortion" means an act, or
an omission of a statutorily required act, that, under the
circumstances as the actor believes them to be, constitutes a
substantial step in a course of conduct planned to culminate in the
performance of an abortion in this state in violation of law.
(3) "Medical emergency" means any condition which, on
the basis of the physician's good faith clinical judgment, so
complicates the medical condition of a pregnant female as to
necessitate the immediate abortion of her pregnancy to avert her
death or for which a delay will create serious risk of substantial
and irreversible impairment of a major bodily function.
(4) "Physician" means a physician licensed to practice
medicine in this state, including an osteopath.
(5) "Probable gestational age" means what, in the
judgment of the physician, will with reasonable probability be the
gestational age of the unborn child at the time the abortion is
planned to be performed.
(6) "Unborn child" means a member of the species Homo
sapiens from fertilization until birth.
Sec. 170.052. FETAL PAIN INFORMATION. (a) At least 24
hours before the time an abortion is begun on an unborn child whose
probable gestational age is 20 weeks or more, the physician
performing the abortion or the physician's agent shall inform the
pregnant female, by telephone or in person, that she has the right
to review the printed materials described in Section 170.054, that
these materials are available on a state-sponsored website, and
what the website address is. The physician or the physician's agent
shall orally inform the female that the materials have been
provided by this state and that they contain information on fetal
pain. If the female chooses to view the materials other than on the
website, the materials must either be given to her at least 24 hours
before the abortion or mailed to her at least 72 hours before the
abortion by certified mail, restricted delivery to addressee, which
means the postal employee can deliver the mail to only the
addressee. The information required by this subsection may be
provided by a tape recording if provision is made to record or
otherwise register specifically whether the female does or does not
choose to have the printed materials given or mailed to her.
(b) Before an abortion subject to this section is performed,
the female shall certify in writing that the information described
in this subsection has been provided to her and that she has been
informed of her opportunity to review the printed materials
described in Section 170.054. Before the abortion is performed,
the physician who is to perform the abortion or the physician's
agent shall obtain a copy of the written certification and retain it
on file with the female's medical record until at least the third
anniversary of the date the certification was received.
(c) This section does not apply in the case of a medical
emergency.
Sec. 170.053. FETAL PAIN PREVENTION. Except in the case of
a medical emergency, before an abortion is performed on an unborn
child who is 20 weeks gestational age or more, the physician
performing the abortion or the physician's agent shall inform the
female if an anesthetic or analgesic would eliminate or alleviate
organic pain to the unborn child caused by the particular method of
abortion to be employed and inform her of the particular medical
risks associated with the particular anesthetic or analgesic. With
her consent, the physician shall administer the anesthetic or
analgesic.
Sec. 170.054. PRINTED MATERIALS. (a) The department shall
publish, in English and in each language that is the primary
language of two percent or more of the state's population, printed
materials with the following information concerning unborn
children of 20 weeks gestational age and for each two-week
gestational increment after that age:
(1) the development of the nervous system of the
unborn child;
(2) fetal responsiveness to adverse stimuli and other
indicators of capacity to experience organic pain; and
(3) the methods of abortion procedures commonly
employed at this stage of pregnancy.
(b) The information provided in the printed materials must
be objective, nonjudgmental, and designed to convey only accurate
scientific information.
(c) The information provided in the printed materials must
be presented in such a way as to ensure that the information is
easily comprehensible.
(d) The information provided in the printed materials must
be printed in a typeface large enough to be clearly legible.
(e) The printed materials required by this section must be
available at no cost from the department on request and in
appropriate numbers to any person, facility, or hospital.
(f) The department shall make the information provided in
the printed materials available on the website required under
Section 170.055.
Sec. 170.055. INTERNET WEBSITE. (a) The department shall
develop and maintain a stable Internet website to provide the
information described by Section 170.054.
(b) Information regarding who uses the website may not be
collected or maintained.
(c) The department shall monitor the website on a daily
basis to prevent and correct tampering.
(d) The website must be maintained at a minimum resolution
of 70 dots per inch. A picture appearing on the website must be a
minimum size of 200x300 pixels. The letters used by the department
on the website must be in 11-point or larger type. All information
and pictures must be accessible with an industry-standard browser
and may not require the use of an additional plug-in.
Sec. 170.056. PROCEDURE IN CASE OF MEDICAL EMERGENCY. When
a medical emergency compels the performance of an abortion, the
physician shall inform the female, before the abortion if possible,
of the medical indications supporting the physician's judgment that
an abortion is necessary to avert her death or that a 24-hour delay
will create serious risk of substantial and irreversible impairment
of a major bodily function.
Sec. 170.057. REPORTING REQUIREMENTS. (a) The department
shall prepare a reporting form for physicians containing the text
of this subchapter and blanks for listing:
(1) the number of females to whom the physician or an
agent of the physician provided the information described by
Section 170.052(a), separately identifying:
(A) the number of females to whom the information
was provided by telephone, separately identifying:
(i) the number of females to whom the
information was provided in the capacity of a referring physician;
and
(ii) the number of females to whom the
information was provided in the capacity of a physician who is to
perform the abortion or agent of such a physician; and
(B) the number of females to whom the information
was provided in person, separately identifying:
(i) the number of females to whom the
information was provided in the capacity of a referring physician;
and
(ii) the number of females to whom the
information was provided in the capacity of a physician who is to
perform the abortion or agent of such a physician;
(2) the number of females who:
(A) availed themselves of the opportunity to
obtain a copy of the printed information described in Section
170.054, other than on the website, separately identifying the
number of these females who, to the best of the reporting
physician's information and belief, obtained the abortion; and
(B) did not avail themselves of the opportunity
to obtain a copy of the printed information described in Section
170.054, other than on the website, separately identifying the
number of these females who, to the best of the reporting
physician's information and belief, obtained the abortion;
(3) the number of abortions performed by the physician
in which information otherwise required to be provided at least 24
hours before the abortion was not provided because an immediate
abortion was necessary to avert the female's death; and
(4) the number of abortions performed by the physician
in which information otherwise required to be provided at least 24
hours before the abortion was not provided because a delay would
create serious risk of substantial and irreversible impairment of a
major bodily function.
(b) The department shall ensure that copies of the reporting
forms are provided to each physician:
(1) at the same time the physician is notified that the
physician has become licensed in this state; and
(2) not later than December 1 of each year.
(c) Not later than February 28 of each year, a physician who
provided, or whose agent provided, information to one or more
females in accordance with Section 170.052 during the previous
calendar year shall submit to the department a copy of the form
required by this section, with the required information entered
accurately and completely.
(d) A physician who fails to submit a complete report before
March 28 of the year in which the report is required to be filed must
pay a late reporting fee of $500 for each additional 30-day period
or portion of a 30-day period the report remains overdue.
(e) At the request of the department, the attorney general
may bring an action against a physician who fails to submit a
complete report before the first anniversary of the date the report
is due to compel the physician to submit a complete report within a
period stated by court order. The physician is subject to sanctions
for civil contempt if the physician does not comply with a court
order issued under this subsection.
(f) Not later than June 30 of each year, the department
shall issue a public report providing statistics for the previous
calendar year compiled from all of the reports covering that year
submitted in accordance with this section for each of the items
listed in Subsection (a). The public report must also provide the
statistics for all previous calendar years, adjusted to reflect any
additional information from late or corrected reports. The
department shall take care to ensure that none of the information
included in a public report under this subsection could reasonably
lead to the identification of any individual providing or provided
information in accordance with Section 170.052.
(g) The board by rule may alter the dates established by
Subsection (b)(2), (e), or (f) or consolidate the forms or reports
described in this section with other forms or reports to achieve
administrative convenience or fiscal savings or to reduce the
burden of reporting requirements. In acting under this subsection,
the board shall ensure that reporting forms are sent to all licensed
physicians in this state at least once each year and the public
report described by Subsection (f) is issued at least once each
year.
Sec. 170.058. CRIMINAL PENALTIES. (a) A person commits an
offense if the person knowingly or recklessly performs or attempts
to perform an abortion in violation of this subchapter. An offense
under this subsection is a state jail felony.
(b) A person commits an offense if the person is a physician
and knowingly or recklessly submits a false report under Section
170.057. An offense under this subsection is a Class C misdemeanor.
Sec. 170.059. CIVIL REMEDIES. (a) A person who knowingly
or recklessly performs an abortion in violation of this subchapter
is liable in a civil action for actual damages and exemplary damages
in accordance with Chapter 41, Civil Practice and Remedies Code,
to:
(1) the person on whom the abortion has been
performed;
(2) the father of the unborn child who was the subject
of the abortion; or
(3) a grandparent of the unborn child.
(b) A person who knowingly or recklessly attempts to perform
an abortion in violation of this subchapter is liable in a civil
action for actual damages and exemplary damages in accordance with
Chapter 41, Civil Practice and Remedies Code, to the person on whom
the abortion has been attempted.
Sec. 170.060. ACTION TO COMPEL STATISTICAL REPORT. If the
department fails to issue the public report required by Section
170.057(f), a group of 10 or more residents of this state may bring
an action against the commissioner for an injunction requiring that
a complete report be issued within a period stated by court order.
The commissioner is subject to sanctions for civil contempt if the
department does not comply with a court order issued under this
section.
Sec. 170.061. ATTORNEY'S FEES. (a) If judgment is
rendered in favor of the plaintiff in an action under Section
170.059 or 170.060, the court shall award reasonable attorney's
fees in favor of the plaintiff against the defendant.
(b) If judgment is rendered in favor of the defendant in an
action under Section 170.059 or 170.060 and the court finds that the
action was frivolous and brought in bad faith, the court shall award
reasonable attorney's fees in favor of the defendant against the
plaintiff.
Sec. 170.062. DEFENSE. (a) It is a defense to prosecution
under Section 170.058 for failure to obtain the written
certification under Section 170.052 that the department had not
made the printed materials available at the time the physician or
the physician's agent was required to inform the female of her right
to review them.
(b) A person may not be found civilly liable for violation
of the requirement to obtain the written certification under
Section 170.052 in the circumstances described by Subsection (a).
Sec. 170.063. FEMALE NOT LIABLE. A female on whom the
abortion is performed or attempted to be performed is not
criminally or civilly liable under this subchapter.
Sec. 170.064. PROTECTION OF PRIVACY IN COURT
PROCEEDINGS. (a) In a civil or criminal proceeding or action
brought under this subchapter, the court shall rule whether the
anonymity of any female on whom an abortion has been performed or
attempted to be performed, and who does not consent to public
disclosure of her identity, shall be preserved from public
disclosure.
(b) The court, on motion of a party or sua sponte, shall make
a ruling under this section and, on determining that the female's
anonymity should be preserved, shall issue orders to the parties,
witnesses, and counsel and shall direct the sealing of the record
and exclusion of individuals from courtrooms or hearing rooms to
the extent necessary to safeguard the female's identity from public
disclosure.
(c) Each order issued under Subsection (b) must be
accompanied by specific written findings explaining:
(1) why the anonymity of the female should be
preserved from public disclosure;
(2) why the order is essential to preserve the
anonymity of the female;
(3) how the order is narrowly tailored to serve the
interest identified by the court; and
(4) why no reasonable less restrictive alternative
exists.
(d) In the absence of written consent of the female on whom
an abortion has been performed or attempted to be performed, any
person, other than a public official, who brings an action under
Section 170.059 must bring the action under a pseudonym. This
section may not be construed to conceal the identity of the
plaintiff or of witnesses from the defendant.
Sec. 170.065. SEVERABILITY. If any one or more provisions,
sections, subsections, sentences, clauses, phrases, or words of
this subchapter or the application of this subchapter to any person
or circumstance is found to be unconstitutional, the provision,
section, subsection, sentence, clause, phrase, or word is declared
to be severable and the balance of this subchapter remains
effective notwithstanding that unconstitutionality. The
legislature declares that the legislature would have enacted this
subchapter, and each provision, section, subsection, sentence,
clause, phrase, or word of this subchapter, irrespective of the
fact that any one or more provisions, sections, subsections,
sentences, clauses, phrases, or words are declared
unconstitutional.
SECTION 2. Sections 170.001 and 170.002, Health and Safety
Code, are redesignated as Subchapter A, Chapter 170, Health and
Safety Code, and a subchapter heading is added to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 3. Section 170.001, Health and Safety Code, is
amended to read as follows:
Sec. 170.001. DEFINITIONS. In this subchapter [chapter]:
(1) "Abortion" means an act involving the use of an
instrument, medicine, drug, or other substance or device developed
to terminate the pregnancy of a woman if the act is done with an
intention other than to:
(A) increase the probability of a live birth of
the unborn child of the woman;
(B) preserve the life or health of the child; or
(C) remove a dead fetus.
(2) "Physician" means an individual licensed to
practice medicine in this state.
(3) "Viable" means the stage of fetal development
when, in the medical judgment of the attending physician based on
the particular facts of the case, an unborn child possesses the
capacity to live outside its mother's womb after its premature
birth from any cause. The term does not include a fetus whose
biparietal diameter is less than 60 millimeters.
SECTION 4. (a) Not later than the 90th day after the
effective date of this Act, the Texas Department of Health shall
publish the printed materials required by Section 170.054, Health
and Safety Code, as added by this Act, and shall make available the
website required by Section 170.055, Health and Safety Code, as
added by this Act.
(b) Not later than the 90th day after the effective date of
this Act, the Texas Department of Health shall prepare the
reporting form for physicians required by Section 170.057, Health
and Safety Code, as added by this Act. Not later than the 120th day
after the effective date of this Act, the department shall
distribute the reporting form to each physician licensed to
practice medicine in this state. Notwithstanding Section
170.057(b)(2), Health and Safety Code, as added by this Act, the
department is not required to distribute reporting forms to
physicians on December 1 of the year in which the initial
distribution of reporting forms is made under this subsection.
(c) Each physician required to report under Section
170.057, Health and Safety Code, as added by this Act, shall make
the initial required report in accordance with that section not
later than February 28, 2004. The report made under this subsection
shall cover the period beginning on the effective date of this Act
and ending on December 31, 2003.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2003.