83R7890 JSC-F
 
  By: Laubenberg H.B. No. 2364
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to abortion at or after 20 weeks post-fertilization.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  (a) This Act may be cited as the Preborn Pain
  Act.
         (b)  The legislature finds that:
               (1)  substantial medical evidence recognizes that an
  unborn child is capable of experiencing pain by not later than 20
  weeks after fertilization;
               (2)  the state has a compelling state interest in
  protecting the lives of unborn children from the stage at which
  substantial medical evidence indicates that these children are
  capable of feeling pain; and
               (3)  the compelling state interest in protecting the
  lives of unborn children from the stage at which substantial
  medical evidence indicates that an unborn child is capable of
  feeling pain is intended to be separate from and independent of the
  compelling state interest in protecting the lives of unborn
  children from the stage of viability, and neither state interest is
  intended to replace the other.
         SECTION 2.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter C to read as follows:
  SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS
  POST-FERTILIZATION
         Sec. 171.041.  DEFINITION. In this subchapter,
  "post-fertilization age" means the age of the unborn child as
  calculated from the fusion of a human spermatozoon with a human
  ovum.
         Sec. 171.042.  DETERMINATION OF POST-FERTILIZATION AGE
  REQUIRED.  Except as otherwise provided by Section 171.045, a
  physician may not perform or induce or attempt to perform or induce
  an abortion without, prior to the procedure:
               (1)  making a determination of the probable
  post-fertilization age of the unborn child; or
               (2)  possessing and relying on a determination of the
  probable post-fertilization age of the unborn child made by another
  physician.
         Sec. 171.043.  ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
  POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
  Section 171.045, a person may not perform or induce or attempt to
  perform or induce an abortion on a woman if it has been determined,
  by the physician performing, inducing, or attempting to perform or
  induce the abortion or by another physician on whose determination
  that physician relies, that the probable post-fertilization age of
  the unborn child is 20 or more weeks.
         Sec. 171.044.  METHOD OF ABORTION. (a) This section applies
  only to an abortion authorized under Section 171.045(a)(1) or (2)
  in which:
               (1)  the probable post-fertilization age of the unborn
  child is 20 or more weeks; or
               (2)  the probable post-fertilization age of the unborn
  child has not been determined but could reasonably be 20 or more
  weeks.
         (b)  Except as otherwise provided by Section 171.045(a)(3),
  a physician performing an abortion under Subsection (a) shall
  terminate the pregnancy in the manner that, in the physician's
  reasonable medical judgment, provides the best opportunity for the
  unborn child to survive.
         Sec. 171.045.  EXCEPTIONS. (a) The prohibitions and
  requirements under Sections 171.042, 171.043, and 171.044 do not
  apply to an abortion performed if there exists a condition that, in
  the physician's reasonable medical judgment, so complicates the
  medical condition of the woman that, to avert the woman's death or a
  serious risk of substantial or irreversible physical impairment of
  a major bodily function, other than a psychological condition, it
  necessitates, as applicable:
               (1)  the immediate abortion of her pregnancy without
  the delay necessary to determine the probable post-fertilization
  age of the unborn child;
               (2)  the abortion of her pregnancy even though the
  post-fertilization age of the unborn child is 20 or more weeks; or
               (3)  the use of a method of abortion other than a method
  described by Section 171.044(b).
         (b)  A physician may not take an action authorized under
  Subsection (a) if the risk of death or a substantial and
  irreversible physical impairment of a major bodily function arises
  from a claim or diagnosis that the woman will engage in conduct that
  may result in her death or in substantial and irreversible physical
  impairment of a major bodily function.
         Sec. 171.046.  PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
  (a) Except as otherwise provided by this section, in a civil or
  criminal proceeding or action involving an act prohibited under
  this subchapter, the identity of the woman on whom an abortion has
  been performed or induced or attempted to be performed or induced is
  not subject to public disclosure if the woman does not give consent
  to disclosure.
         (b)  Unless the court makes a ruling under Subsection (c) to
  allow disclosure of the woman's identity, the court shall issue
  orders to the parties, witnesses, and counsel and shall direct the
  sealing of the record and exclusion of individuals from courtrooms
  or hearing rooms to the extent necessary to protect the woman's
  identity from public disclosure.
         (c)  A court may order the disclosure of information that is
  confidential under this section if:
               (1)  a motion is filed with the court requesting
  release of the information and a hearing on that request;
               (2)  notice of the hearing is served on each interested
  party; and
               (3)  the court determines after the hearing and an in
  camera review that disclosure is essential to the administration of
  justice and there is no reasonable alternative to disclosure.
         Sec. 171.047.  CONSTRUCTION OF SUBCHAPTER. 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 245.011(c), Health and Safety Code, is
  amended to read as follows:
         (c)  The report must include:
               (1)  whether the abortion facility at which the
  abortion is performed is licensed under this chapter;
               (2)  the patient's year of birth, race, marital status,
  and state and county of residence;
               (3)  the type of abortion procedure;
               (4)  the date the abortion was performed;
               (5)  whether the patient survived the abortion, and if
  the patient did not survive, the cause of death;
               (6)  the probable post-fertilization age of the unborn
  child [period of gestation] based on the best medical judgment of
  the attending physician at the time of the procedure;
               (7)  the date, if known, of the patient's last menstrual
  cycle;
               (8)  the number of previous live births of the patient;
  and
               (9)  the number of previous induced abortions of the
  patient.
         SECTION 4.  Section 164.052(a), Occupations Code, 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; [or]
               (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.
         SECTION 5.  Section 164.055(b), Occupations Code, 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, Chapter 171, Health and Safety Code.
         SECTION 6.  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 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 7.  (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 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 noted
  that an explicit statement of legislative intent specifically made
  applicable to a particular statute is of greater weight than a
  general savings or severability clause, it is the intent of the
  legislature that if any provision, section, subsection, sentence,
  clause, phrase, or word of this Act or the application thereof to
  any person or circumstance is found to be unconstitutional, the
  provision, section, subsection, sentence, clause, phrase, or word
  is hereby declared to be severable and the balance of this Act
  remains effective notwithstanding such unconstitutionality.
  Moreover, the legislature declares that it would have passed this
  Act, and each provision, section, subsection, sentence, clause,
  phrase, or word thereof, irrespective of the fact that any
  provision, section, subsection, sentence, clause, phrase, or word,
  or any of their applications, were to be declared unconstitutional.
         SECTION 8.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2013.