By: King of Parker H.B. No. 59

A BILL TO BE ENTITLED

AN ACT

relating to a prohibition on abortion after detection of a fetal heartbeat; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The legislature finds, according to contemporary medical research, that:

(1) as many as 30 percent of natural pregnancies end in spontaneous miscarriage;

(2) less than five percent of all natural pregnancies end in spontaneous miscarriage after detection of fetal cardiac activity;

(3) over 90 percent of in vitro pregnancies survive the first trimester if cardiac activity is detected in the gestational sac;

(4) nearly 90 percent of in vitro pregnancies do not survive the first trimester if cardiac activity is not detected in the gestational sac;

(5) fetal heartbeat, therefore, has become a key medical predictor that an unborn child will reach live birth;

(6) cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac;

(7) the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of an unborn child who may be born; and

(8) to make an informed choice about whether to continue her pregnancy, the pregnant woman has a legitimate interest in knowing the likelihood of the fetus surviving to full-term birth based on the presence of cardiac activity.

SECTION 2. Chapter 171, Health and Safety Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. ABORTION AFTER DETECTION OF FETAL HEARTBEAT

Sec. 171.101. FINDING BY ATTORNEY GENERAL ON ENFORCEABILITY AND APPLICABILITY OF CERTAIN LAW. (a) This subchapter is not enforceable until the 91st day after the date of publication in the Texas Register of a finding of fact made by the attorney general that:

(1) the United States Supreme Court has issued a decision overruling Roe v. Wade, 410 U.S. 113 (1973);

(2) any other state or federal court has issued an order or judgment restoring, expanding, or clarifying the authority of states to wholly or partly prohibit or regulate abortion under the United States Constitution; or

(3) an amendment to the United States Constitution that restores, expands, or clarifies the authority of states to wholly or partly prohibit or regulate abortion has been adopted.

(b) The attorney general shall monitor federal constitutional law and state and federal court cases related to abortions in this state to determine whether a finding is required under Subsection (a). The attorney general shall make the finding required under Subsection (a) not later than the 30th day after the date the attorney general determines the finding is required.

(c) On the 91st day after the publication date of the finding described by Subsection (a), Subchapter C has no effect.

(d) This subchapter applies only to an offense committed on or after the date described by Subsection (c). For purposes of this subchapter, an offense is committed before that date if any element of the offense occurs before that date. An offense committed before that date is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose.

Sec. 171.102. DEFINITIONS. In this subchapter:

(1) "Conception" means fertilization.

(2) "Contraceptive" means a drug, device, or chemical that prevents conception.

(3) "Fetal heartbeat" means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.

(4) "Fetus" means the human offspring developing during pregnancy from the moment of conception and includes the embryonic stage of development.

(5) "Gestational age" has the meaning assigned by Section 171.061.

(6) "Intrauterine pregnancy" means a pregnancy in which the fetus is attached to the placenta within the uterus of the pregnant woman.

(7) "Medical emergency" means a condition that in a physician's good faith medical judgment, based on the facts known to the physician at that time, so endangers the life of the pregnant woman, or so poses a serious risk of complicating the pregnancy of the woman by directly or indirectly causing the substantial and irreversible impairment of a major bodily function of the pregnant woman, as to necessitate the immediate performance or inducement of an abortion.

(8) "Physician" means an individual licensed to practice medicine in this state.

(9) "Pregnancy" means the human female reproductive condition that begins with fertilization, when the woman is carrying the developing human offspring, and that is calculated from the first day of the last menstrual period of the woman.

(10) "Spontaneous miscarriage" means the natural or accidental termination of a pregnancy and the expulsion of the fetus, typically caused by genetic defects in the fetus or physical abnormalities in the pregnant woman.

(11) "Standard medical practice" means the degree of skill, care, and diligence that a physician of the same medical specialty would employ in like circumstances. As applied to the method used to determine the presence of a fetal heartbeat for purposes of Section 171.103, "standard medical practice" includes employing the appropriate means of detection depending on the estimated gestational age of the fetus and the condition of the woman and her pregnancy.

(12) "Unborn child" has the meaning assigned by Section 171.061.

Sec. 171.103. DETERMINATION OF DETECTABLE HEARTBEAT REQUIRED. (a) Except as otherwise provided by Section 171.105, a physician may not perform or induce or attempt to perform or induce an abortion unless the physician has made a determination, in accordance with Subsection (c) and standard medical practice, of whether the unborn child has a detectable heartbeat.

(b) The physician who makes the determination on the presence or absence of a fetal heartbeat shall record in the pregnant woman's medical record:

(1) the estimated gestational age of the unborn child;

(2) the method used to test for the presence or absence of a fetal heartbeat;

(3) the date and time of the test used to determine the presence or absence of a fetal heartbeat; and

(4) the results of the test.

(c) The method of determining the presence or absence of a fetal heartbeat must be consistent with the physician's good faith understanding of standard medical practice in accordance with any rules adopted under this subsection. The executive commissioner of the Health and Human Services Commission may adopt rules specifying the appropriate method used to test for the presence or absence of a fetal heartbeat of an unborn child based on standard medical practice.

Sec. 171.104. FAILURE TO DETERMINE EXISTENCE OF DETECTABLE HEARTBEAT; OFFENSE. (a) Except as provided by Subsection (d), a person may not knowingly perform or induce or attempt to perform or induce an abortion on a pregnant woman before determining, in accordance with Section 171.103, whether the unborn child has a detectable heartbeat.

(b) A person who violates this section commits an offense. An offense under this section is a misdemeanor punishable by a fine not to exceed $10,000.

(c) A pregnant woman on whom an abortion is performed or attempted in violation of this section may not be prosecuted under this section or for attempting to commit or conspiracy to commit a violation of this section.

(d) It is an exception to the application of this section that a physician performing or inducing or attempting to perform or induce an abortion believes that a medical emergency exists that prevents compliance with Section 171.103.

Sec. 171.105. ABORTION OF UNBORN CHILD WITH DETECTABLE HEARTBEAT PROHIBITED; OFFENSE. (a) Except as otherwise provided by Subsection (d), a person may not knowingly perform or induce or attempt to perform or induce an abortion on a pregnant woman with the specific intent of causing or abetting the termination of the life of the unborn child if it has been determined, in accordance with Section 171.103, that the unborn child has a detectable heartbeat.

(b) A person who violates this section commits an offense. An offense under this section is a misdemeanor punishable by a fine not to exceed $10,000. In this section, "intent" has the meaning assigned by Section 6.03(a), Penal Code.

(c) A pregnant woman on whom an abortion is performed or attempted in violation of this section may not be prosecuted under this section or for attempting to commit or conspiracy to commit a violation of this section.

(d) It is an exception to the application of this section that a physician performing or inducing or attempting to perform or induce an abortion believes that a medical emergency exists that prevents compliance with Section 171.103.

Sec. 171.106. INFORMATION REQUIRED BEFORE ABORTION. (a) This section applies only to an abortion authorized under Section 171.107.

(b) A physician may not perform or induce or attempt to perform or induce an abortion on a pregnant woman if the unborn child has a detectable heartbeat, as determined under Section 171.103, unless:

(1) the physician intending to perform or induce the abortion informs the pregnant woman in writing that the unborn child the pregnant woman is carrying has a fetal heartbeat;

(2) the physician provides to the pregnant woman information, in accordance with any rules adopted under Subsection (d) or, if no rules are adopted, to the best of the physician's knowledge, on the statistical probability of bringing the unborn child possessing a detectable fetal heartbeat to term based on the gestational age of the unborn child;

(3) the pregnant woman signs a form acknowledging that she has received information from the physician that the unborn child the pregnant woman is carrying has a fetal heartbeat and that the pregnant woman is aware of the statistical probability of bringing the unborn child to term; and

(4) at least 24 hours have elapsed since the completion of the requirements under Subdivisions (1), (2), and (3).

(c) This section does not apply if the physician who intends to perform or induce the abortion believes that a medical emergency exists that prevents compliance with this section.

(d) The executive commissioner of the Health and Human Services Commission may adopt rules that specify the information a physician is required to provide to a pregnant woman under Subsection (b)(2) regarding the statistical probability of bringing an unborn child possessing a detectable heartbeat to term based on the gestational age of the unborn child. The rules must be based on available medical evidence.

(e) This section does not have the effect of repealing or limiting any other statutory provision relating to consent for an abortion.

Sec. 171.107. EXCEPTION; WRITTEN DECLARATION OF MEDICAL EMERGENCY. (a) The prohibitions and requirements under Sections 171.103, 171.104, 171.105, and 171.106 do not apply to an abortion performed or induced on a pregnant woman if, in the physician's reasonable medical judgment, the abortion is designed or intended to prevent the woman's death or prevent a serious risk of substantial and irreversible impairment of a major bodily function of the woman.

(b) A physician who performs or induces or attempts to perform or induce an abortion because the physician believes a medical emergency exists that prevents compliance with Section 171.103 or 171.106 shall make a written certification in the pregnant woman's medical record that:

(1) states the physician believes that a medical emergency necessitating the abortion existed; and

(2) specifies the medical condition of the pregnant woman that prevented compliance with Section 171.103 or 171.106 and the medical rationale for the physician's conclusion.

(c) The physician shall maintain in the pregnant woman's medical record the certification described by Subsection (b) until at least the seventh anniversary of the date the certification was made in the record.

Sec. 171.108. CONTRACEPTIVES. Nothing in this subchapter prohibits the use, dispensing, prescribing, or administration of a contraceptive.

Sec. 171.109. CIVIL CAUSE OF ACTION. A person is liable to a woman in a civil action for the wrongful death of her unborn child if the person performed or induced an abortion on the woman and:

(1) the abortion was performed or induced in violation of Section 171.004 or 171.005;

(2) the woman was not provided the information described in Section 171.106(b)(2); or

(3) the woman did not sign a form described in Section 171.106(b)(3).

Sec. 171.110. CONSTRUCTION OF SUBCHAPTER. (a) This subchapter shall be construed, as a matter of state law, to be enforceable up to but no further than the maximum possible extent consistent with federal constitutional requirements, even if that construction is not readily apparent, as such constructions are authorized only to the extent necessary to save the subchapter from judicial invalidation. Judicial reformation of statutory language is explicitly authorized only to the extent necessary to save the statutory provision from invalidity.

(b) If any court determines that a provision of this subchapter is unconstitutionally vague, the court shall interpret the provision, as a matter of state law, to avoid the vagueness problem and shall enforce the provision to the maximum possible extent. If a federal court finds any provision of this subchapter or its application to any person, group of persons, or circumstances to be unconstitutionally vague and declines to impose the saving construction described by this subsection, the Supreme Court of Texas shall provide an authoritative construction of the objectionable statutory provisions that avoids the constitutional problems while enforcing the statute's restrictions to the maximum possible extent, and shall agree to answer any question certified from a federal appellate court regarding the statute.

(c) A state executive or administrative official may not decline to enforce this subchapter, or adopt a construction of this subchapter in a way that narrows its applicability, based on the official's own beliefs about what the state or federal constitution requires, unless the official is enjoined by a state or federal court from enforcing this subchapter.

(d) This subchapter may not be construed to authorize the prosecution of or a cause of action to be brought against a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter.

SECTION 3. Section 164.052(a), Occupations Code, as amended by H.B. No. 2, Acts of the 83rd Legislature, 2nd Called Session, 2013, is amended to read as follows:

(a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an examination;

(4) uses alcohol or drugs in an intemperate manner that, in the board's opinion, could endanger a patient's life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 164.053, or injure the public;

(6) uses an advertising statement that is false, misleading, or deceptive;

(7) advertises professional superiority or the performance of professional service in a superior manner if that advertising is not readily subject to verification;

(8) purchases, sells, barters, or uses, or offers to purchase, sell, barter, or use, a medical degree, license, certificate, or diploma, or a transcript of a license, certificate, or diploma in or incident to an application to the board for a license to practice medicine;

(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma;

(10) uses a medical license, certificate, or diploma, or a transcript of a medical license, certificate, or diploma that has been:

(A) fraudulently purchased or issued;

(B) counterfeited; or

(C) materially altered;

(11) impersonates or acts as proxy for another person in an examination required by this subtitle for a medical license;

(12) engages in conduct that subverts or attempts to subvert an examination process required by this subtitle for a medical license;

(13) impersonates a physician or permits another to use the person's license or certificate to practice medicine in this state;

(14) directly or indirectly employs a person whose license to practice medicine has been suspended, canceled, or revoked;

(15) associates in the practice of medicine with a person:

(A) whose license to practice medicine has been suspended, canceled, or revoked; or

(B) who has been convicted of the unlawful practice of medicine in this state or elsewhere;

(16) performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion;

(17) directly or indirectly aids or abets the practice of medicine by a person, partnership, association, or corporation that is not licensed to practice medicine by the board;

(18) performs an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy unless:

(A) the abortion is necessary to prevent the death of the woman;

(B) the viable unborn child has a severe, irreversible brain impairment; or

(C) the woman is diagnosed with a significant likelihood of suffering imminent severe, irreversible brain damage or imminent severe, irreversible paralysis;

(19) performs an abortion on an unemancipated minor without the written consent of the child's parent, managing conservator, or legal guardian or without a court order, as provided by Section 33.003 or 33.004, Family Code, authorizing the minor to consent to the abortion, unless the physician concludes that on the basis of the physician's good faith clinical judgment, a condition exists that complicates the medical condition of the pregnant minor and necessitates 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 is insufficient time to obtain the consent of the child's parent, managing conservator, or legal guardian; [or]

(20) performs or induces or attempts to perform or induce an abortion in violation of Subchapter C, Chapter 171, Health and Safety Code; or

(21) performs or induces or attempts to perform or induce an abortion in violation of Subchapter E, Chapter 171, Health and Safety Code.

SECTION 4. Section 164.055(b), Occupations Code, as amended by H.B. No. 2, Acts of the 83rd Legislature, 2nd Called Session, 2013, is amended to read as follows:

(b) The sanctions provided by Subsection (a) are in addition to any other grounds for refusal to admit persons to examination under this subtitle or to issue a license or renew a license to practice medicine under this subtitle. The criminal penalties provided by Section 165.152 do not apply to a violation of Section 170.002 or Subchapter C or E, Chapter 171, Health and Safety Code.

SECTION 5. This Act may not be construed to repeal, by implication or otherwise, Section 164.052(a)(18), Occupations Code, Section 170.002, Health and Safety Code, or, except as provided by Section 171.101, Health and Safety Code, as added by this Act, any other provision of Texas law regulating or restricting abortion not specifically addressed by this Act. An abortion that complies with this Act but violates any other law is unlawful. An abortion that complies with another state law but violates this Act is unlawful as provided in this Act.

SECTION 6. (a) If some or all of the provisions of this Act are ever temporarily or permanently restrained or enjoined by judicial order, all other provisions of Texas law regulating or restricting abortion, including Subchapter C, Chapter 171, Health and Safety Code, shall be enforced as though the restrained or enjoined provisions had not been adopted; provided, however, that whenever the temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have effect, the provisions shall have full force and effect.

(b) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute regulating abortion the United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provisions in this Act, are severable from each other. If any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this Act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature's intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this Act to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed from the remaining provisions and shall remain in force, and shall be treated as if the legislature had enacted a statute limited to the persons, group of persons, or circumstances for which the statute's application does not present an undue burden. The legislature further declares that it would have passed this Act, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this Act, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this Act, were to be declared unconstitutional or to represent an undue burden.

(c) If Subchapter E, Chapter 171, Health and Safety Code, as added by this Act, prohibiting abortions performed on an unborn child after detection of a fetal heartbeat, is found by any court to be invalid or to impose an undue burden as applied to any person, group of persons, or circumstances, the prohibition shall apply to that person or group of persons or circumstances on the earliest date on which the subchapter can be applied constitutionally and in accordance with this Act.

SECTION 7. 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 on the 91st day after the last day of the legislative session.