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A BILL TO BE ENTITLED
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AN ACT
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relating to providing a sonogram before an abortion; providing |
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penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 171, Health and Safety Code, is amended |
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by adding Subchapter C to read as follows: |
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SUBCHAPTER C. PERFORMANCE OF SONOGRAM BEFORE ABORTION |
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Sec. 171.051. DEFINITIONS. In this subchapter: |
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(1) "Abortion provider" means a facility where an |
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abortion is performed, including the office of a physician and a |
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facility licensed under Chapter 241, 243, or 245. |
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(2) "Medical emergency" means a life-threatening |
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physical condition aggravated by, caused by, or arising from a |
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pregnancy that, as certified by a physician, places the woman in |
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danger of death or a serious risk of substantial impairment of a |
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major bodily function unless an abortion is performed. |
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(3) "Sonogram" means the use of ultrasonic waves for |
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diagnostic or therapeutic purposes, specifically to monitor an |
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unborn child. |
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Sec. 171.052. INFORMATION REGARDING SONOGRAM PROVIDERS. |
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(a) Not more than 72 hours and not less than 24 hours before an |
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abortion begins, the physician who is to perform the abortion shall |
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in person and in a private, confidential setting: |
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(1) provide the pregnant woman on whom the abortion is |
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to be performed with the informational materials described by |
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Section 171.014 and orally provide the woman the information |
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required by Section 171.012(a)(1); |
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(2) orally inform the pregnant woman on whom the |
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abortion is to be performed that the materials required by Section |
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171.014: |
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(A) are provided by the Department of State |
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Health Services; |
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(B) are accessible on an Internet website |
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sponsored by the department; |
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(C) describe the unborn child; and |
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(D) list agencies that offer alternatives to |
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abortion; and |
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(3) provide the pregnant woman on whom the abortion is |
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to be performed with a comprehensive list of health care providers, |
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facilities, and clinics that offer obstetric sonogram services at |
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no cost to the pregnant woman and that do not: |
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(A) perform abortions or provide |
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abortion-related services; |
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(B) make referrals to any abortion provider; or |
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(C) affiliate or contract with any entity that |
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performs abortions, provides abortion-related services, or makes |
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referrals to any abortion provider. |
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(b) The department shall compile the list described by |
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Subsection (a)(3) and shall make the list available at no cost. The |
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department shall provide appropriate quantities of the list to an |
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abortion provider and to any other person. The list must include |
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the name, address, hours of operation, and telephone number for |
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each health care provider, facility, and clinic that satisfies the |
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requirements of Subsection (a)(3) and be: |
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(1) arranged by county; |
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(2) printed in a typeface large enough to be clearly |
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legible; and |
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(3) published in English and Spanish. |
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(c) The department is not required to republish the list |
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described by Subsection (a)(3) because of a change in information |
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described by Subsection (b) unless five percent or more of the |
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information contained in the list changes. |
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Sec. 171.053. PERFORMANCE OF SONOGRAM. (a) Not more than |
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72 hours and not less than 24 hours before the abortion begins and |
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before any sedative or anesthesia is administered to the pregnant |
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woman, the physician who is to perform the abortion or a sonographer |
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certified by a national registry of medical sonographers shall: |
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(1) perform a live, real-time obstetric sonogram on |
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the pregnant woman on whom the abortion is to be performed; |
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(2) display the live, real-time obstetric sonogram |
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images in a quality consistent with current medical practice in a |
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manner that the pregnant woman may view them; |
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(3) provide, in a manner understandable to a |
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layperson, a simultaneous verbal explanation of the results of the |
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live, real-time sonogram images, including a medical description of |
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the dimensions of the embryo or fetus, the presence of cardiac |
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activity, and the presence of arms, legs, external members, and |
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internal organs; and |
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(4) make audible the live, real-time heart |
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auscultation, when present, for the pregnant woman to hear, in a |
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quality consistent with current medical practice, and provide, in a |
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manner understandable to a layperson, a simultaneous verbal |
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explanation of the live, real-time heart auscultation. |
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(b) During a visit made to a facility to fulfill the |
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requirements of Subsection (a), the facility and any person at the |
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facility may not accept any form of payment, deposit, or exchange or |
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make any financial agreement for an abortion or abortion-related |
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services other than for payment of a service required by Subsection |
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(a). The amount charged for a service required by Subsection (a) |
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may not exceed the reimbursement rate established for the service |
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by the Health and Human Services Commission for statewide medical |
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reimbursement programs. |
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Sec. 171.054. CERTIFICATION OF SONOGRAM. (a) After the |
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live, real-time sonogram and the live, real-time heart auscultation |
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required under Section 171.053 and before any sedative or |
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anesthesia is administered to the pregnant woman and before the |
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abortion begins, the pregnant woman on whom the abortion is to be |
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performed shall certify by her signature that not more than 72 hours |
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and not less than 24 hours before the abortion begins: |
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(1) she was provided with a live, real-time sonogram |
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as required under Section 171.053; |
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(2) she had the opportunity to view the live, |
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real-time sonogram images as required under Section 171.053; |
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(3) she was provided, in a manner understandable to a |
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layperson, a simultaneous verbal explanation of the results of the |
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sonogram images as required under Section 171.053; and |
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(4) she heard the live, real-time heart auscultation, |
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when present, as required under Section 171.053. |
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(b) The department shall prepare the form to be used to make |
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the certification required under Subsection (a). The form must |
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include a space for the pregnant woman's signature and space for the |
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woman to sign her initials beside each of the following statements: |
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(1) "Not more than 72 hours and not less than 24 hours |
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before my abortion is to begin and at the facility where my abortion |
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is to be performed, the doctor who is performing an abortion on me |
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or a sonographer certified by a national registry of medical |
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sonographers performed a sonogram on me and displayed the live, |
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real-time sonogram images so that I could view them."; |
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(2) "The doctor who is performing an abortion on me or |
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a sonographer certified by a national registry of medical |
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sonographers has given me, in an understandable manner, a |
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simultaneous verbal explanation of the results of the live, |
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real-time sonogram images, including a medical description of the |
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dimensions of the embryo or fetus, the presence of cardiac |
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activity, and the presence of arms, legs, external members, and |
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internal organs."; and |
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(3) "The doctor performing an abortion on me or a |
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sonographer certified by a national registry of medical |
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sonographers has made audible the live, real-time heart activity, |
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when present, for me to hear. The doctor or sonographer has also |
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provided, in an understandable manner, a simultaneous verbal |
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explanation of the live, real-time heart activity." |
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(c) Before the abortion begins, a copy of the form required |
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under this section must be: |
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(1) given to the physician who is to perform the |
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abortion; and |
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(2) placed in the pregnant woman's medical records. |
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(d) A copy of the form required under this section shall be |
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retained by the abortion provider until: |
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(1) the seventh anniversary of the date it is signed; |
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or |
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(2) if the pregnant woman is a minor, the later of: |
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(A) the seventh anniversary of the date it is |
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signed; or |
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(B) the woman's 21st birthday. |
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Sec. 171.055. RECEIVING INFORMATION DURING SONOGRAM. The |
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physician and the pregnant woman are not subject to a penalty under |
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this subchapter solely because the pregnant woman chooses not to |
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receive the information required to be provided under Section |
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171.053. |
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Sec. 171.056. PATERNITY AND CHILD SUPPORT INFORMATION. If, |
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after being provided with a sonogram and the information required |
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under this subchapter, the pregnant woman chooses not to have an |
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abortion, the physician or an agent of the physician shall provide |
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the pregnant woman with a publication developed by the Title IV-D |
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agency that provides information about paternity establishment and |
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child support, including: |
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(1) the steps necessary for unmarried parents to |
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establish legal paternity; |
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(2) the benefits of paternity establishment for |
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children; |
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(3) the steps necessary to obtain a child support |
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order; |
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(4) the benefits of establishing a legal parenting |
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order; and |
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(5) financial and legal responsibilities of |
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parenting. |
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Sec. 171.057. EXCEPTION FOR MEDICAL EMERGENCY. (a) A |
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physician may perform an abortion without providing the sonogram |
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required under Section 171.053 only in a medical emergency. A |
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physician who performs an abortion in a medical emergency shall: |
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(1) include in the patient's medical records a |
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statement signed by the physician certifying the nature of the |
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medical emergency; and |
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(2) not later than the seventh day after the date the |
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abortion is performed, certify to the Department of State Health |
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Services the specific medical condition that constituted the |
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emergency. |
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(b) The statement required under Subsection (a)(1) shall be |
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placed in the patient's medical records and shall be kept by the |
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abortion provider until: |
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(1) the seventh anniversary of the date the abortion |
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is performed; or |
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(2) if the pregnant woman is a minor, the later of: |
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(A) the seventh anniversary of the date the |
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abortion is performed; or |
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(B) the woman's 21st birthday. |
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Sec. 171.058. VIOLATION. (a) A physician who performs an |
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abortion in violation of this subchapter engages in unprofessional |
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conduct for which the physician's license shall be revoked under |
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Chapter 164, Occupations Code. |
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(b) The department, in accordance with the procedures |
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established under Chapter 241, 243, or 245, as applicable, shall |
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revoke the license of an abortion provider that violates this |
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subchapter. |
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SECTION 2. Subchapter A, Chapter 241, Health and Safety |
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Code, is amended by adding Section 241.007 to read as follows: |
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Sec. 241.007. COMPLIANCE WITH CERTAIN REQUIREMENTS |
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REGARDING SONOGRAM BEFORE ABORTION. A hospital shall comply with |
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Subchapter C, Chapter 171. |
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SECTION 3. Subchapter A, Chapter 243, Health and Safety |
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Code, is amended by adding Section 243.017 to read as follows: |
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Sec. 243.017. COMPLIANCE WITH CERTAIN REQUIREMENTS |
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REGARDING SONOGRAM BEFORE ABORTION. An ambulatory surgical center |
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shall comply with Subchapter C, Chapter 171. |
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SECTION 4. Section 245.006(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The department shall [may] inspect an abortion facility |
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at reasonable times as necessary to ensure compliance with this |
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chapter and Subchapter C, Chapter 171. |
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SECTION 5. Chapter 245, Health and Safety Code, is amended |
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by adding Section 245.024 to read as follows: |
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Sec. 245.024. COMPLIANCE WITH CERTAIN REQUIREMENTS |
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REGARDING SONOGRAM BEFORE ABORTION. An abortion facility shall |
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comply with Subchapter C, Chapter 171. |
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SECTION 6. Subchapter B, Chapter 164, Occupations Code, is |
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amended by adding Section 164.0551 to read as follows: |
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Sec. 164.0551. COMPLIANCE WITH CERTAIN REQUIREMENTS |
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REGARDING SONOGRAM BEFORE ABORTION. A physician shall comply with |
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Subchapter C, Chapter 171, Health and Safety Code. |
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SECTION 7. The change in law made by this Act applies only |
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to an abortion performed on or after the 60th day after the |
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effective date of this Act. An abortion performed before the 60th |
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day after the effective date of this Act is governed by the law in |
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effect on the date the abortion was performed, and the former law is |
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continued in effect for that purpose. |
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SECTION 8. The Department of State Health Services shall |
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compile the list required by Section 171.052, Health and Safety |
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Code, as added by this Act, not later than the 60th day after the |
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effective date of this Act. |
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SECTION 9. The Title IV-D agency shall publish the |
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information required by Section 171.056, Health and Safety Code, as |
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added by this Act, not later than the 60th day after the effective |
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date of this Act. |
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SECTION 10. (a) The legislature finds the following |
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purposes and justifications for this law: |
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(1) States have "a substantial government interest |
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justifying a requirement that a woman be apprised of the health |
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risks of abortion and childbirth," including mental health |
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considerations. Planned Parenthood of Southeastern Pennsylvania |
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v. Casey, 505 U.S. 833, 882 (1992). "It cannot be questioned that |
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psychological well-being is a facet of health. Nor can it be |
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doubted that most women considering an abortion would deem the |
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impact on the fetus relevant, if not dispositive, to the decision. |
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In attempting to ensure that a woman apprehend the full |
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consequences of her decision, the State furthers the legitimate |
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purpose of reducing the risk that a woman may elect an abortion, |
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only to discover later, with devastating psychological |
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consequences, that her decision was not fully informed. If the |
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information the State requires to be made available to the woman is |
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truthful and not misleading, the requirement may be permissible." |
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Id. |
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(2) The consideration of an abortion's consequences to |
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a fetus is not contingent on the consideration of the health of the |
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mother. Rather, those considerations provide a stand-alone basis |
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for informed consent legislation. There is "no reason why the State |
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may not require doctors to inform a woman seeking an abortion of the |
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availability of materials relating to the consequences to the |
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fetus, even when those consequences have no direct relation to her |
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health." Id. |
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(3) In addition to the state's substantial interest in |
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promoting the health and well-being of a pregnant woman, the state |
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also has a "profound interest in potential life" of the unborn |
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fetus. Id. at 878; see also Gonzales v. Carhart, 550 U.S. 124, 125 |
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(2007) (recognizing that the state has a legitimate interest "in |
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protecting the life of the fetus that may become a child"). |
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(4) A statute furthering a state's "legitimate goal of |
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protecting the life of the unborn" by "ensuring a decision that is |
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mature and informed" is permitted "even when in so doing the State |
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expresses a preference for childbirth over abortion." Planned |
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Parenthood, 505 U.S. at 883. |
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(5) In addition, the Supreme Court has held that |
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"[r]egulations which do no more than create a structural mechanism |
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by which the State, or the parent or guardian of a minor, may |
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express profound respect for the life of the unborn are permitted, |
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if they are not a substantial obstacle to the woman's exercise of |
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the right to choose." Id. at 877. "Unless it has that effect on her |
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right of choice, a state measure designed to persuade her to choose |
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childbirth over abortion will be upheld if reasonably related to |
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that goal." Id. at 878. |
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(6) "The State also has an interest in protecting the |
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integrity and ethics of the medical profession." Washington v. |
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Glucksberg, 521 U.S. 702, 731 (1997). An abortion performed |
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without a medical professional's full disclosure to a pregnant |
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woman of the impact on the fetus and the potential health |
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consequences of an abortion could undermine the woman's trust in |
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medical professionals. This Act is intended to protect the |
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integrity and ethics of the medical profession by establishing |
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clear requirements that are designed to ensure the health and |
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informed consent of a pregnant woman who is contemplating an |
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abortion. |
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(b) Therefore, it is the legislature's intent in enacting |
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this Act to further the purposes stated in Subsection (a) of this |
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section. |
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(c) Furthermore, with regard to the severability clause |
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contained in this Act, the legislature finds: |
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(1) As the United States Supreme Court has explained, |
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when reviewing an abortion statute, "the proper means to consider |
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exceptions is by as-applied challenge." Gonzales, 550 U.S. at 167. |
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Moreover, when reviewing abortion statutes, "[t]he latitude given |
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facial challenges in the First Amendment context is inapplicable." |
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Id. See also U.S. v. Salerno, 481 U.S. 739, 745 (1987) ("The fact |
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that [a legislative Act] might operate unconstitutionally under |
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some conceivable set of circumstances is insufficient to render it |
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wholly invalid, since we have not recognized an 'overbreadth' |
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doctrine outside the limited context of the First Amendment."). |
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(2) The Unites States Supreme Court has made the role |
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of the court clear when reviewing statutes: "It is neither our |
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obligation nor within our traditional institutional role to resolve |
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questions of constitutionality with respect to each potential |
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situation that might develop." Gonzales, 550 U.S. at 168. "[I]t |
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would indeed be undesirable for this Court to consider every |
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conceivable situation which might possibly arise in the application |
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of complex and comprehensive legislation." Id. (quoting U.S. v. |
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Raines, 362 U.S. 17, 21 (1960) (internal quotation marks omitted)). |
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"For this reason, '[a]s-applied challenges are the basic building |
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blocks of constitutional adjudication.'" Gonzales, 550 U.S. at 168 |
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(quoting Richard Fallon, As-Applied and Facial Challenges and |
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Third-Party Standing, 113 Harv. L. Rev. 1321, 128 (2000)). |
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(3) Severability must be considered not only with |
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respect to certain clauses or provisions of a statute but also with |
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respect to applications of a statute or provision when some of the |
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applications are unconstitutional. See Norman J. Singer, Statutes |
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and Statutory Construction, Section 44.02 (4th ed. rev. 1986). |
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(4) Severability clauses in federal statutes treat |
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severability of clauses and applications the same. See, e.g., 2 |
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U.S.C. Section 1438 ("If any provision of this chapter or the |
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application of such provision to any person or circumstance is held |
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to be invalid, the remainder of this chapter and the application of |
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the provisions of the remainder to any person or circumstance shall |
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not be affected thereby."); Section 1103 of the Social Security Act |
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(42 U.S.C. Section 1303); Section 15 of the National Labor |
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Relations Act (29 U.S.C. Section 165); Section 11 of the Railway |
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Labor Act (45 U.S.C. Section 161); Section 14 of the Agricultural |
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Adjustment Act (7 U.S.C. Section 614). |
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(5) Courts have treated severability of clauses and |
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applications the same. See Robert L. Stern, Separability and |
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Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76 |
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(1937). |
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SECTION 11. The purposes of this Act are to: |
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(1) protect the physical and psychological health and |
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well-being of pregnant women; |
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(2) provide pregnant women access to information that |
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would allow a pregnant woman to consider the impact an abortion |
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would have on the pregnant woman's fetus; and |
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(3) protect the integrity and ethical standards of the |
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medical profession. |
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SECTION 12. Every provision in this Act and every |
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application of the provisions in this Act are severable from each |
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other. If any application of any provision in this Act to any |
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person or group of persons or circumstances is found by a court to |
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be invalid, the remainder of this Act and the application of the |
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Act's provisions to all other persons and circumstances may not be |
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affected. All constitutionally valid applications of this Act |
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shall be severed from any applications that a court finds to be |
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invalid, leaving the valid applications in force, because it is the |
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legislature's intent and priority that the valid applications be |
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allowed to stand alone. Even if a reviewing court finds a provision |
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of this Act invalid in a large or substantial fraction of relevant |
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cases, the remaining valid applications shall be severed and |
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allowed to remain in force. |
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SECTION 13. Each provision of this Act and every |
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application of this Act's provisions to any person or circumstance |
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shall be construed as severable as a matter of state law. If any |
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application of this Act to any person or circumstance is held |
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invalid by any court, the valid applications shall be severed and |
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remain in force. |
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SECTION 14. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2011. |