|
|
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A BILL TO BE ENTITLED
|
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AN ACT
|
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relating to informed and voluntary consent for an abortion and the |
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collection and reporting of information related to the performance |
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of an abortion; providing penalties. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Subchapter B, Chapter 171, Health |
|
and Safety Code, is amended to read as follows: |
|
SUBCHAPTER B. VOLUNTARY AND INFORMED CONSENT |
|
SECTION 2. Section 171.018, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 171.018. OFFENSE. A physician who intentionally |
|
performs an abortion on a woman in violation of Section 171.011 |
|
[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 3. Subchapter B, Chapter 171, Health and Safety |
|
Code, is amended by adding Sections 171.019, 171.020, 171.021, and |
|
171.022 to read as follows: |
|
Sec. 171.019. PREVENTION OF COERCED ABORTIONS. (a) Before |
|
performing an abortion, a physician shall: |
|
(1) verbally inform the woman on whom the abortion is |
|
to be performed that a person cannot coerce or force her to have an |
|
abortion and that the physician cannot perform the abortion unless |
|
the woman provides her voluntary and informed consent; and |
|
(2) provide the woman on whom the abortion is to be |
|
performed with the coerced abortion form described by Section |
|
171.021: |
|
(A) in both English and Spanish; and |
|
(B) in a language other than English or Spanish, |
|
if applicable, under Section 171.021(c). |
|
(b) A doctor may not perform an abortion on a woman unless, |
|
before the abortion, the woman certifies on the coerced abortion |
|
form described by Section 171.021 that she received from the |
|
physician the information and materials required by Subsection (a). |
|
(c) If the woman indicates on the coerced abortion form or |
|
on the abortion reporting form required by Section 171.051 that she |
|
is being coerced to have an abortion performed, the physician: |
|
(1) shall report abuse or neglect under Chapter 261, |
|
Family Code, if applicable; |
|
(2) shall provide the referral required by Section |
|
171.020(2); |
|
(3) shall provide the woman with access to a telephone |
|
in a private room; and |
|
(4) may not perform the abortion until the woman |
|
provides her voluntary and informed consent that the woman states |
|
is not a result of coercion. |
|
Sec. 171.020. REFERRAL TO DOMESTIC VIOLENCE ASSISTANCE. |
|
The department shall require each physician who performs an |
|
abortion to: |
|
(1) maintain a list of domestic violence shelters and |
|
assistance programs that do not provide or refer for abortions; and |
|
(2) provide a referral to a domestic violence shelter |
|
or assistance program that does not provide or refer for abortions |
|
if the woman seeking an abortion communicates to the facility, the |
|
physician, or an agent of the physician who is performing the |
|
abortion that the woman is being abused or is being coerced to have |
|
the abortion. |
|
Sec. 171.021. CONTENTS OF FORM. (a) The department shall |
|
develop a coerced abortion form to be completed by each woman on |
|
whom an abortion is performed in this state. The form must include: |
|
(1) the following title centered on the page in |
|
boldfaced capital letters in 18-point font or larger: "NOTICE"; |
|
(2) the following statement printed in 14-point font |
|
or larger: "It is against the law for a person, regardless of that |
|
person's relationship to you, to coerce or force you to have an |
|
abortion. By law, a physician cannot perform an abortion, including |
|
inducing, prescribing for, or otherwise providing the means for an |
|
abortion, unless you give your voluntary and informed consent |
|
without coercion or force. It is against the law for a physician to |
|
perform an abortion against your will. You have the right to contact |
|
any local or state law enforcement agency to receive protection |
|
from any actual or threatened physical abuse or violence."; |
|
(3) the following statements printed in 14-point font |
|
or larger followed by spaces for the woman to initial: |
|
(A) "I have been informed in person that no one |
|
can coerce or force me to have an abortion and that an abortion |
|
cannot be provided to me unless I provide my voluntary and informed |
|
consent."; and |
|
(B) "I have read the above notice and understand |
|
that I have legal protection against being coerced or forced to have |
|
an abortion."; |
|
(4) spaces for the signature of the woman on whom an |
|
abortion is to be performed and the date the form was completed; and |
|
(5) spaces for the license number, area of specialty, |
|
and signature of the physician who performed the abortion. |
|
(b) The department shall provide the form required by |
|
Subsection (a) in both English and Spanish. |
|
(c) If the department determines that a substantial number |
|
of residents in this state speak a primary language other than |
|
English or Spanish, the department shall provide the form required |
|
by Subsection (a) in that language. The department shall instruct a |
|
facility that provides abortions to provide the coerced abortion |
|
form in a language other than English or Spanish if the department |
|
determines that a substantial number of residents in the area speak |
|
a primary language other than English or Spanish. |
|
Sec. 171.022. PROVISION AND RETENTION OF COERCED ABORTION |
|
FORM. (a) The department shall provide a copy of this section and |
|
Sections 171.019-171.021 and the coerced abortion form required by |
|
Section 171.019 to: |
|
(1) a physician who becomes newly licensed to practice |
|
in this state, not later than the 30th day after the date the |
|
physician receives the license; and |
|
(2) all physicians licensed to practice in this state, |
|
not later than December 1 of each year. |
|
(b) A copy of the coerced abortion form certified by the |
|
woman shall be placed in the woman's medical file and kept until at |
|
least the seventh anniversary of the date on which the form was |
|
signed or, if the woman is a minor, at least until the date the woman |
|
reaches 20 years of age, whichever is later. |
|
(c) The woman on whom an abortion is performed shall be |
|
given a copy of the completed coerced abortion form in person before |
|
the woman leaves the facility where the abortion is performed. |
|
SECTION 4. Chapter 171, Health and Safety Code, is amended |
|
by adding Subchapter C to read as follows: |
|
SUBCHAPTER C. ABORTION REPORTING |
|
Sec. 171.051. ABORTION REPORTING FORM. (a) A physician who |
|
performs an abortion must submit a report by mail to the department |
|
on each abortion the physician performs. The report must be |
|
submitted on a form provided by the department. |
|
(b) The report may not identify the name of the patient by |
|
any means. |
|
(c) The abortion reporting form for each abortion must |
|
include the following information to be completed by the patient: |
|
(1) the patient's age, race or ethnicity, and marital |
|
status and municipality, county, state, and nation of residence; |
|
(2) the age of the father of the unborn child at the |
|
time of the abortion; |
|
(3) a space for the patient to indicate the specific |
|
reason the abortion was performed, including: |
|
(A) the mother feels coerced or forced to have |
|
the abortion; |
|
(B) the mother has all the children she wants; |
|
(C) the mother cannot afford the child; |
|
(D) the child has been diagnosed with one or more |
|
health problems that are documented in the medical records of the |
|
mother; |
|
(E) the father of the child opposes the |
|
pregnancy; |
|
(F) a parent of the mother of the unborn child |
|
opposes the pregnancy; |
|
(G) the mother fears a loss of family support; |
|
(H) the mother fears losing her job; |
|
(I) a school counselor recommends abortion; |
|
(J) a physician recommends abortion; |
|
(K) the pregnancy was a result of rape; |
|
(L) the pregnancy was a result of incest; or |
|
(M) the mother does not wish to complete this |
|
section; |
|
(4) the number of previous live births of the patient; |
|
(5) the number of previous induced abortions of the |
|
patient; |
|
(6) the number of previous miscarriages or spontaneous |
|
abortions of the patient; |
|
(7) the source of referral for the abortion, |
|
including: |
|
(A) a physician; |
|
(B) self; |
|
(C) a friend or family member; |
|
(D) a member of the clergy; |
|
(E) a school counselor; |
|
(F) a social services agency; |
|
(G) the Department of State Health Services; |
|
(H) a family planning agency; or |
|
(I) other (specify): ___________________; and |
|
(8) whether or not the woman availed herself of the |
|
opportunity to view the printed information required by Subchapter |
|
B, and, if so, whether the woman viewed the information described in |
|
Section 171.014, through the Internet or by booklet. |
|
(d) The abortion reporting form for each abortion must |
|
include the following information to be completed by the physician: |
|
(1) the name of the abortion facility at which the |
|
abortion was performed, the municipality and county in which the |
|
facility is located, and whether the facility: |
|
(A) is licensed as an abortion facility under |
|
Chapter 245; |
|
(B) is operating as the private office of a |
|
licensed physician; |
|
(C) is a licensed hospital; |
|
(D) is a licensed hospital satellite clinic; or |
|
(E) is a licensed ambulatory surgical center; |
|
(2) the license number, area of specialty, and |
|
signature of the physician who performed or induced the abortion; |
|
(3) a statement that the physician screened the |
|
patient for coercion in compliance with Section 171.019; |
|
(4) the type of abortion procedure, including: |
|
(A) nonsurgical abortion, specifying the |
|
medication or chemical used; |
|
(B) suction and curettage; |
|
(C) dilation and curettage; |
|
(D) dilation and evacuation; |
|
(E) labor and induction; |
|
(F) dilation and extraction; |
|
(G) hysterotomy or hysterectomy; or |
|
(H) other (specify): ________; |
|
(5) the date the abortion was performed; |
|
(6) whether the patient survived the abortion, and if |
|
the patient did not survive, the cause of death; |
|
(7) the number of fetuses the patient was carrying; |
|
(8) the number of weeks of gestation based on the best |
|
medical judgment of the attending physician at the time of the |
|
procedure and the weight of the fetus or fetuses, if determinable; |
|
(9) the method of pregnancy verification, including: |
|
(A) urine test; |
|
(B) clinical lab test; |
|
(C) ultrasound; |
|
(D) not tested; or |
|
(E) other (specify): ____________________; |
|
(10) whether the abortion was paid for by: |
|
(A) private insurance; |
|
(B) a public health plan; or |
|
(C) personal payment by patient; |
|
(11) whether there was no insurance coverage or |
|
insurance coverage was provided by: |
|
(A) a fee-for-service insurance company; |
|
(B) a managed care company; or |
|
(C) another source (specify): ________________; |
|
(12) the total fee collected for performing the |
|
abortion, including any services related to the abortion; |
|
(13) the type of anesthetic, if any, used for each |
|
abortion performed, and whether anesthetic was used for the woman, |
|
the unborn child or children, or both; |
|
(14) the method used to dispose of the fetal tissue and |
|
remains; |
|
(15) complications for each abortion, including: |
|
(A) none; |
|
(B) shock; |
|
(C) uterine perforation; |
|
(D) cervical laceration; |
|
(E) hemorrhage; |
|
(F) aspiration or allergic response; |
|
(G) infection or sepsis; |
|
(H) infant or infants born alive; |
|
(I) death of mother; or |
|
(J) other (specify): __________; and |
|
(16) if the infant or infants were born alive: |
|
(A) whether life-sustaining measures were |
|
provided to the infant or infants; and |
|
(B) the period of time the infant or infants |
|
survived. |
|
(e) If the patient is a minor, the report on each abortion |
|
must include: |
|
(1) whether the minor's parent, managing conservator, |
|
or legal guardian provided the written consent required by Section |
|
164.052(a)(19), Occupations Code, and, if so, whether the consent |
|
was given: |
|
(A) in person at the time of the abortion; or |
|
(B) at a place other than the location at which |
|
the abortion is performed or induced; |
|
(2) whether the physician concluded and documented in |
|
writing in the patient's medical record that on the basis of the |
|
physician's good faith clinical judgment a condition existed that |
|
complicated the medical condition of the pregnant minor and |
|
necessitated the immediate abortion of her pregnancy to avert her |
|
death or to avoid a serious risk of substantial impairment of a |
|
major bodily function and that there was insufficient time to |
|
obtain the consent of the minor's parent, managing conservator, or |
|
legal guardian; |
|
(3) whether the minor was emancipated and permitted to |
|
have the abortion without the written consent required by Section |
|
164.052(a)(19), Occupations Code; |
|
(4) whether judicial authorization was received, |
|
waiving the written consent required by Section 164.052(a)(19), |
|
Occupations Code; and |
|
(5) if judicial authorization was received, the |
|
process the physician or the physician's agent used to inform the |
|
minor of the judicial bypass, whether court forms were provided to |
|
her, and what entity made the court arrangement for the minor. |
|
(f) The patient must fill out sections of the form under |
|
Subsection (c). Sections to be filled out by the patient must be at |
|
the top of the form. The bottom portion of the reporting form must |
|
be completed by the physician performing the abortion. The |
|
requirement that the patient fill out the patient's portion of the |
|
form may be waived only if the abortion is performed to prevent the |
|
death of the mother or to avoid harm to a mother described by |
|
Section 164.052(a)(18), Occupations Code, or harm to a mother who |
|
is a minor described by Section 164.052(a)(19), Occupations Code. |
|
If the requirement that the patient fill out the patient's portion |
|
of the form is waived under this subsection, the physician |
|
performing the abortion shall include in the patient's medical |
|
records a signed written statement certifying the nature of the |
|
medical emergency. |
|
(g) A copy of the abortion reporting form must be maintained |
|
in the patient's medical file at least until the seventh |
|
anniversary of the date of the abortion. The patient must be given |
|
a copy of the completed abortion reporting form in person after the |
|
physician and patient complete the form. |
|
(h) The department shall provide the abortion reporting |
|
form required by this section, together with a copy of this section |
|
to: |
|
(1) a physician who becomes newly licensed to practice |
|
in this state, not later than the 30th day after the date the |
|
physician receives the license; and |
|
(2) all physicians licensed to practice in this state, |
|
not later than December 1 of each year. |
|
Sec. 171.052. ABORTION COMPLICATION REPORT. (a) A |
|
physician practicing in the state who treats an illness or injury |
|
related to complications from an abortion shall complete and submit |
|
an abortion complication report to the department. The report must |
|
be submitted by mail on the form provided by the department. |
|
(b) The department shall prepare an abortion complication |
|
report form for all physicians licensed and practicing in this |
|
state. A copy of this section must be attached to the form. The |
|
form must include: |
|
(1) the date and type of the original abortion, |
|
including: |
|
(A) nonsurgical abortion, specifying the |
|
medication or chemical used; |
|
(B) suction and curettage; |
|
(C) dilation and curettage; |
|
(D) dilation and evacuation; |
|
(E) labor and induction; |
|
(F) dilation and extraction; |
|
(G) hysterotomy or hysterectomy; or |
|
(H) other (specify): ______________; |
|
(2) the name and type of facility where the abortion |
|
complication was diagnosed and treated, including: |
|
(A) an abortion facility licensed under Chapter |
|
245; |
|
(B) a private office of a licensed physician; |
|
(C) a licensed hospital; |
|
(D) a licensed hospital satellite clinic; or |
|
(E) a licensed ambulatory surgical center; |
|
(3) the name and type of facility where the abortion |
|
was performed, if known; |
|
(4) the license number, area of specialty, and |
|
signature of the physician who treated the abortion complication; |
|
(5) the date on which the abortion complication was |
|
diagnosed and treated; |
|
(6) a description of the abortion complication, |
|
including: |
|
(A) none; |
|
(B) shock; |
|
(C) uterine perforation; |
|
(D) cervical laceration; |
|
(E) hemorrhage; |
|
(F) aspiration or allergic response; |
|
(G) infection or sepsis; |
|
(H) infant or infants born alive; |
|
(I) death of mother; or |
|
(J) other (specify): ________________; |
|
(7) the patient's age, race or ethnicity, and marital |
|
status and municipality, county, state, and nation of residence; |
|
(8) the number of weeks of gestation at which the |
|
abortion was performed based on the best medical judgment of the |
|
attending physician at the time of treatment for the abortion |
|
complication; |
|
(9) the number of previous live births of the patient; |
|
(10) the number of previous induced abortions for the |
|
patient; |
|
(11) the number of previous miscarriages or |
|
spontaneous abortions of the patient; |
|
(12) whether treatment for the abortion complication |
|
was paid for by: |
|
(A) private insurance; |
|
(B) a public health plan; or |
|
(C) personal payment by the patient; |
|
(13) the total fee collected for treatment for the |
|
abortion complication; |
|
(14) whether there was no insurance coverage or |
|
insurance coverage was provided by: |
|
(A) a fee-for-service insurance company; |
|
(B) a managed care company; or |
|
(C) another provider; and |
|
(15) the type of follow-up care recommended. |
|
(c) The department shall provide the abortion complication |
|
form required by this section, together with a copy of this section, |
|
to: |
|
(1) a physician who becomes newly licensed to practice |
|
in this state, not later than the 30th day after the date the |
|
physician receives the license; and |
|
(2) all physicians licensed to practice in this state, |
|
not later than December 1 of each year. |
|
(d) A copy of the abortion complication report form must be |
|
maintained in the patient's medical file until the seventh |
|
anniversary of the date the abortion complication was diagnosed and |
|
treated. The patient must receive a copy of the completed form in |
|
person before the patient leaves the facility. |
|
SECTION 5. Chapter 171, Health and Safety Code, is amended |
|
by adding Subchapter D to read as follows: |
|
SUBCHAPTER D. PROVISIONS RELATING TO REPORTS; PENALTIES |
|
Sec. 171.061. REPORTING REQUIREMENTS. (a) A physician |
|
performing an abortion shall complete and submit an abortion |
|
reporting form to the department for each abortion as required by |
|
Section 171.051 not later than the 15th day of each month for |
|
abortions performed in the previous calendar month. |
|
(b) A physician required to submit an abortion complication |
|
report to the department by Section 171.052 shall submit the report |
|
as soon as practicable after diagnosis or treatment of the abortion |
|
complication, but in no case more than seven days after the date of |
|
the diagnosis or treatment. |
|
(c) Not later than April 1 of each year, the department |
|
shall issue in aggregate a public report summarizing the |
|
information submitted on each individual report required by |
|
Sections 171.051 and 171.052. The public report shall cover the |
|
entire previous calendar year and shall be compiled from the data in |
|
all the abortion reporting forms and the abortion complication |
|
reports submitted to the department in accordance with Sections |
|
171.051 and 171.052. Each public report shall also provide |
|
information for all previous calendar years, adjusted to reflect |
|
any additional information from late or corrected reports. The |
|
department shall ensure that none of the information included in |
|
the public reports could reasonably lead to identification of any |
|
physician who performed an abortion or treated abortion-related |
|
complications or of any woman who has had an abortion. |
|
(d) Except as provided by Subsection (c) and Section |
|
245.023, all information and records held by the department under |
|
this subchapter and Subchapter C are confidential and are not open |
|
records for the purposes of Chapter 552, Government Code. That |
|
information may not be released or made public, except that release |
|
may be made: |
|
(1) for statistical purposes, but only if a person, |
|
patient, physician, or facility is not identified; |
|
(2) to medical personnel, appropriate state agencies, |
|
or county and district courts to enforce this chapter or Chapter |
|
245; or |
|
(3) to appropriate state licensing boards to enforce |
|
state licensing laws. |
|
(e) The department or an employee of the department may not |
|
disclose to a person or entity outside of the department the reports |
|
or contents of the reports required by this section and Sections |
|
171.051 and 171.052 in a manner or fashion that permits the person |
|
or entity to whom the form or report is disclosed to identify in any |
|
way a person who is the subject of the report. |
|
Sec. 171.062. PENALTIES. (a) A physician who does not |
|
submit a report required by Section 171.051 or 171.052 within 30 |
|
days of the date the report was due is subject to a late fee of $500 |
|
for each additional 30-day period or portion of a 30-day period the |
|
report is overdue. |
|
(b) A physician required to file a report by Section 171.051 |
|
or 171.052 who has not submitted a complete report before the first |
|
anniversary of the date the report was due is subject to a late fee |
|
under Subsection (a) and, in an action brought by the department, |
|
may be directed by a court to submit a complete report within a |
|
period stated by court order or be subject to sanctions for civil |
|
contempt. |
|
Sec. 171.063. OFFENSE. (a) A physician commits an offense |
|
if a physician: |
|
(1) fails to submit a report required by this |
|
subchapter or Subchapter C; |
|
(2) intentionally, knowingly, or recklessly submits |
|
false information on a report required by this subchapter or |
|
Subchapter C; |
|
(3) includes the name or identifying information of |
|
the woman who had the abortion in a report required by this |
|
subchapter or Subchapter C; or |
|
(4) includes the name or identifying information of a |
|
physician in a public report required by Section 171.061(c). |
|
(b) A physician who discloses confidential identifying |
|
information in violation of Section 171.061(e) commits an offense. |
|
(c) A physician commits an offense if the physician performs |
|
an abortion and the physician reasonably believes that the abortion |
|
is the result of coercion, as defined by Section 1.07, Penal Code. |
|
(d) An offense under this section is a Class A misdemeanor. |
|
SECTION 6. Section 245.001, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 245.001. SHORT TITLE. This chapter may be cited as the |
|
Texas Abortion Facility [Reporting and] Licensing Act. |
|
SECTION 7. Section 245.005(e), Health and Safety Code, is |
|
amended to read as follows: |
|
(e) As a condition for renewal of a license, the licensee |
|
must submit to the department the annual license renewal fee and an |
|
annual report[, including the report required under Section
|
|
245.011]. |
|
SECTION 8. Section 248.003, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 248.003. EXEMPTIONS. This chapter does not apply to: |
|
(1) a home and community support services agency |
|
required to be licensed under Chapter 142; |
|
(2) a person required to be licensed under Chapter 241 |
|
(Texas Hospital Licensing Law); |
|
(3) an institution required to be licensed under |
|
Chapter 242; |
|
(4) an ambulatory surgical center required to be |
|
licensed under Chapter 243 (Texas Ambulatory Surgical Center |
|
Licensing Act); |
|
(5) a birthing center required to be licensed under |
|
Chapter 244 (Texas Birthing Center Licensing Act); |
|
(6) a facility required to be licensed under Chapter |
|
245 (Texas Abortion Facility [Reporting and] Licensing Act); |
|
(7) a child care institution, foster group home, |
|
foster family home, and child-placing agency, for children in |
|
foster care or other residential care who are under the |
|
conservatorship of the Department of Protective and Regulatory |
|
Services; or |
|
(8) a person providing medical or nursing care or |
|
services under a license or permit issued under other state law. |
|
SECTION 9. Section 245.011, Health and Safety Code, is |
|
repealed. |
|
SECTION 10. (a) Not later than December 1, 2009, the |
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Department of State Health Services shall develop and make |
|
available the forms required by Subchapter B, Chapter 171, Health |
|
and Safety Code, as amended by this Act, and Subchapter C, Chapter |
|
171, Health and Safety Code, as added by this Act, along with |
|
instructions for completing the forms. |
|
(b) Not later than January 1, 2010, the Department of State |
|
Health Services shall distribute forms as required by Sections |
|
171.022(a), 171.051(h), and 171.052(c), Health and Safety Code, as |
|
added by this Act. |
|
(c) A physician is not required to submit a report under |
|
Section 171.051 or 171.052, Health and Safety Code, as added by this |
|
Act, before January 1, 2010. |
|
(d) Section 171.063, Health and Safety Code, as added by |
|
this Act, applies only to an offense committed on or after January |
|
1, 2010. For purposes of this section, an offense is committed |
|
before January 1, 2010, if any element of the offense occurs before |
|
that date. An offense committed before January 1, 2010, is covered |
|
by the law in effect when the offense was committed, and the former |
|
law is continued in effect for that purpose. |
|
SECTION 11. (a) Except as provided by Subsection (b) of |
|
this section, this Act takes effect September 1, 2009. |
|
(b) Section 171.063, Health and Safety Code, as added by |
|
this Act, Section 245.005, Health and Safety Code, as amended by |
|
this Act, and the repeal of Section 245.011, Health and Safety Code, |
|
by this Act take effect January 1, 2010. |