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78R455 JTS-F
By: Williams S.B. No. 835
A BILL TO BE ENTITLED
AN ACT
relating to regulation of abortion; creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 171 to read as follows:
CHAPTER 171. ABORTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 171.001. DEFINITION. In this chapter, "abortion" means
the use of any means to terminate the pregnancy of a female known by
the attending physician to be pregnant with the intention that the
termination of the pregnancy by those means will, with reasonable
likelihood, cause the death of the fetus.
Sec. 171.002. PHYSICIAN TO PERFORM. An abortion may be
performed only by a physician licensed to practice medicine in this
state.
Sec. 171.003. ABORTION OF FETUS AGE 16 WEEKS OR MORE. An
abortion of a fetus age 16 weeks or more may be performed only at an
ambulatory surgical center or hospital licensed to perform the
abortion.
Sec. 171.004. DEPARTMENT TO ENFORCE. The department shall
enforce this chapter.
[Sections 171.005-171.010 reserved for expansion]
SUBCHAPTER B. INFORMED CONSENT
Sec. 171.011. INFORMED CONSENT REQUIRED. A person may not
perform an abortion without the voluntary and informed consent of
the woman on whom the abortion is to be performed.
Sec. 171.012. VOLUNTARY AND INFORMED CONSENT. (a) Except
in the case of a medical emergency, consent to an abortion is
voluntary and informed only if:
(1) the physician who is to perform the abortion or the
referring physician informs the woman on whom the abortion is to be
performed of:
(A) the name of the physician who will perform
the abortion;
(B) the particular medical risks associated with
the particular abortion procedure to be employed, including, when
medically accurate:
(i) the risks of infection, hemorrhage, and
breast cancer; and
(ii) the potential danger to a subsequent
pregnancy and of infertility;
(C) the probable gestational age of the unborn
child at the time the abortion is to be performed; and
(D) the medical risks associated with carrying
the child to term;
(2) the physician who is to perform the abortion or the
physician's agent informs the 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;
(C) public and private agencies provide
pregnancy prevention counseling and medical referrals for
obtaining pregnancy prevention medications or devices; and
(D) the woman has the right to review the printed
materials described by Section 171.014, that those materials have
been provided by the Texas Department of Health and are accessible
on an Internet website sponsored by the department, and that the
materials describe the unborn child and list agencies that offer
alternatives to abortion;
(3) the woman certifies in writing before the abortion
is performed that the information described by Subdivisions (1) and
(2) and by Section 171.017 has been provided to her and that she has
been informed of her opportunity to review the information
described by Section 171.014; and
(4) before the abortion is performed, the physician
who is to perform the abortion receives a copy of the written
certification required by Subdivision (3).
(b) The information required to be provided under
Subsections (a)(1) and (2) must be provided:
(1) orally by telephone or in person; and
(2) at least 24 hours before the abortion is to be
performed.
(c) When providing the information under Subsection
(a)(2)(D), the physician or the physician's agent must provide the
woman with the address of the Internet website on which the printed
materials described by Section 171.014 may be viewed as required by
Section 171.014(e).
Sec. 171.013. DISTRIBUTION OF STATE MATERIALS. (a) If the
woman chooses to view the materials described by Section 171.014,
the physician or the physician's agent shall furnish copies of the
materials to her at least 24 hours before the abortion is to be
performed. A physician or the physician's agent may furnish the
materials to the woman by mail if the materials are mailed,
restricted delivery to addressee, at least 72 hours before the
abortion is to be performed.
(b) Except as provided by Section 171.017, a physician or
the physician's agent is not required to furnish copies of the
materials if the woman provides the physician with a written
statement that she chooses to view the materials on the Internet
website sponsored by the department.
(c) The physician and the physician's agent may
disassociate themselves from the materials and may choose to
comment on the materials or to refrain from commenting.
Sec. 171.014. INFORMATIONAL MATERIALS. (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 (a)(2)(A), (B), and (C); and
(2) the materials required by Sections 171.015,
171.016, and 171.017.
(b) The materials shall be published in:
(1) English and Spanish;
(2) an easily comprehensible form; and
(3) a typeface large enough to be clearly legible.
(c) The materials shall be available at no cost from the
department on request. The department shall provide appropriate
quantities of the materials to any person.
(d) The department shall annually review the materials to
determine if changes to the contents of the materials are
necessary. The department shall adopt rules necessary for
considering and making changes to the materials.
(e) The department shall develop and maintain an Internet
website to display the information required to be published under
this section. In developing and maintaining the website the
department shall, to the extent reasonably practicable, safeguard
the website against alterations by anyone other than the department
and shall monitor the website each day to prevent and correct
tampering. The department shall ensure that the website does not
collect or maintain information regarding access to the website.
Sec. 171.015. INFORMATION RELATING TO PUBLIC AND PRIVATE
AGENCIES. The informational materials must include either:
(1) geographically indexed materials designed to
inform the woman of public and private agencies and services
available to assist a woman through pregnancy, childbirth, and the
child's dependency, including:
(A) a comprehensive list of adoption agencies;
(B) a description of the services the adoption
agencies offer; and
(C) a description of the manner, including
telephone numbers, in which an adoption agency may be contacted; or
(2) a toll-free, 24-hour telephone number that may be
called to obtain an oral list and description of agencies described
by Subdivision (1) that are located near the caller and of the
services the agencies offer.
Sec. 171.016. INFORMATION RELATING TO CHARACTERISTICS OF
UNBORN CHILD. (a) The informational materials must include
materials designed to inform the woman of the probable anatomical
and physiological characteristics of the unborn child at two-week
gestational increments from the time when a woman can be known to be
pregnant to full term, including any relevant information on the
possibility of the unborn child's survival.
(b) The materials must include color pictures representing
the development of the child at two-week gestational increments.
The pictures must contain the dimensions of the unborn child and
must be realistic.
(c) The materials provided under this section must be
objective and nonjudgmental and be designed to convey only accurate
scientific information about the unborn child at the various
gestational ages.
Sec. 171.017. INFORMATION RELATING TO PREVENTION OF
PREGNANCY. (a) The informational materials must include materials
that are designed to inform the woman of pregnancy prevention
methods for females and males and that:
(1) describe each method in detail; and
(2) include pictures or diagrams that illustrate the
proper use of each method.
(b) The physician who is to perform the abortion, the
referring physician, or the agent of either physician shall provide
a woman requesting an abortion with the materials published under
this section, without regard to whether the woman chooses to view
the informational materials under Section 171.012(a)(2)(D).
Sec. 171.018. PERIODS RUN CONCURRENTLY. If the woman is an
unemancipated minor subject to Chapter 33, Family Code, the 24-hour
periods established under Sections 171.012(b) and 171.013(a) may
run concurrently with the period during which actual or
constructive notice is provided under Section 33.002, Family Code.
Sec. 171.019. OFFENSE. A physician who intentionally
performs an abortion on a woman in violation of this subchapter
commits an offense. An offense under this section is a misdemeanor
punishable by a fine not to exceed $10,000. In this section,
"intentionally" has the meaning assigned by Section 6.03(a), Penal
Code.
SECTION 2. Section 245.004, Health and Safety Code, is
amended to read as follows:
Sec. 245.004. EXEMPTIONS FROM LICENSING
REQUIREMENT. (a) The following facilities need not be licensed
under this chapter:
(1) a hospital licensed under Chapter 241 (Texas
Hospital Licensing Law); or
(2) the office of a physician licensed under Subtitle
B, Title 3, Occupations Code, unless the office is used
substantially for the purpose of performing [more than 300]
abortions [in any 12-month period].
(b) For purposes of this section, a facility is used
substantially for the purpose of performing abortions if the
facility:
(1) is a provider for performing:
(A) at least 10 abortion procedures during any
month; or
(B) at least 100 abortion procedures in a year;
(2) operates less than 20 days in a month and the
facility, in any month, is a provider for performing a number of
abortion procedures that would be equivalent to at least 10
procedures in a month if the facility were operating at least 20
days in a month;
(3) holds itself out to the public as an abortion
provider by advertising by any public means, including advertising
placed in a newspaper, telephone directory, magazine, or electronic
medium, that the facility performs abortions; or
(4) applies for an abortion facility license.
(c) For purposes of this section, an abortion facility is
operating if the facility is open for any period of time during a
day and has on site at the facility or on call a physician available
to perform abortions. [In computing the number of abortions
performed in the office of a physician under Subsection (a)(2), an
abortion performed in accordance with Section 245.016 is not
included.]
SECTION 3. Section 245.010(a), Health and Safety Code, is
amended to read as follows:
(a) The rules must contain minimum standards to protect the
health and safety of a patient of an abortion facility and must
contain provisions requiring compliance with the requirements of
Subchapter B, Chapter 171.
SECTION 4. Chapter 245, Health and Safety Code, is amended
by adding Section 245.0104 to read as follows:
Sec. 245.0104. LOCATION OF ABORTION FACILITY. (a) In this
section:
(1) "Church" means a facility that is owned by a
religious organization and that is used primarily for religious
services.
(2) "School" means a public or private school that
provides any part of kindergarten through 12th grade.
(b) Except as provided by Subsection (c), an abortion
facility may not be located within 1,500 feet of the property on
which a church or school is located.
(c) The measurement of the distance between an abortion
facility and a church or school is from the nearest property line of
the church or school to the property line of the property on which
the abortion facility is located, along street lines and in direct
lines across intersections.
(d) Subsection (a) does not apply to an abortion facility
that began operation before September 1, 2003. An abortion
facility does not violate Subsection (a) if the facility is in
compliance with that subsection on the date the facility begins
operation and a church or school subsequently is located within
1,500 feet of the facility.
SECTION 5. The Texas Department of Health shall prepare the
informational materials required by Section 171.014, Health and
Safety Code, as added by this Act, and shall have the materials
available for distribution as required by Chapter 171, Health and
Safety Code, as added by this Act, not later than December 1, 2003.
SECTION 6. If any provision of this Act or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of the Act that can be
given effect without the invalid provision or application, and to
this end the provisions of this Act are severable.
SECTION 7. This Act takes effect September 1, 2003, and
applies only to an abortion that is performed on or after January 1,
2004. An abortion that is performed before January 1, 2004, is
governed by the law as it existed immediately before the effective
date of this Act, and that law is continued in effect for that
purpose.