86R9861 SCL-F
 
  By: Cain H.B. No. 1500
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to prohibiting abortions after detection of an unborn
  child's heartbeat and to requirements for performing or inducing an
  abortion; authorizing an administrative penalty; creating a
  criminal offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as the Texas Heartbeat
  Bill.
         SECTION 2.  Chapter 171, Health and Safety Code, is amended
  by adding Subchapter H to read as follows:
  SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT
         Sec. 171.201.  DEFINITIONS. In this subchapter:
               (1)  "Fetal heartbeat" means cardiac activity or the
  steady and repetitive rhythmic contraction of the fetal heart
  within the gestational sac.
               (2)  "Gestational age" means the amount of time that
  has elapsed from the first day of a woman's last menstrual period.
               (3)  "Gestational sac" means the structure comprising
  the extraembryonic membranes that envelop the unborn child and that
  is typically visible by ultrasound after the fourth week of
  pregnancy.
               (4)  "Physician" means an individual licensed to
  practice medicine in this state, including a medical doctor and a
  doctor of osteopathic medicine.
               (5)  "Pregnancy" means the human female reproductive
  condition that:
                     (A)  begins with fertilization;
                     (B)  occurs when the woman is carrying the
  developing human offspring; and 
                     (C)  is calculated from the first day of the  
  woman's last menstrual period.
               (6)  "Standard medical practice" means the degree of
  skill, care, and diligence that a physician of the same medical
  specialty would employ in similar circumstances.
               (7)  "Unborn child" means an offspring of human beings
  from fertilization until birth.
         Sec. 171.202.  LEGISLATIVE FINDINGS. 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 where 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)  Texas has legitimate interests from the outset of
  a woman's 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 unborn child surviving to
  full-term birth based on the presence of cardiac activity.
         Sec. 171.203.  DETERMINATION OF PRESENCE OF FETAL HEARTBEAT
  REQUIRED; RECORD. (a) Except as provided by Section 171.205, a
  physician may not intentionally perform or induce an abortion on a
  pregnant woman unless the physician has determined, in accordance
  with this section, whether the woman's unborn child has a
  detectable fetal heartbeat.
         (b)  In making a determination under Subsection (a), the
  physician must use a test that is:
               (1)  consistent with the physician's good faith
  understanding of standard medical practice;
               (2)  consistent with rules adopted under this
  subchapter; and
               (3)  appropriate for the estimated gestational age of
  the unborn child and the condition of the pregnant woman and her
  pregnancy.
         (c)  A physician making a determination under Subsection (a)
  shall record in the pregnant woman's medical record the estimated
  gestational age of the unborn child, the test used for detecting a
  fetal heartbeat, the date and time of the test, and the results of
  the test.
         (d)  The executive commissioner may adopt rules specifying
  the appropriate tests to be used in determining the presence of a
  fetal heartbeat based on standard medical practice.
         Sec. 171.204.  ABORTION OF UNBORN CHILD WITH DETECTABLE
  FETAL HEARTBEAT PROHIBITED. (a) Except as provided by Section
  171.205, a physician may not intentionally perform or induce an
  abortion on a pregnant woman with the specific intent of causing or
  abetting the termination of the life of the woman's unborn child if
  the physician detected a fetal heartbeat for the unborn child under
  Section 171.203 or failed to perform a test to detect a fetal
  heartbeat.
         (b)  A physician does not violate this section if the
  physician performed a test for a fetal heartbeat under Section
  171.203 and did not detect a fetal heartbeat.
         (c)  This section does not affect the provisions of this
  chapter that restrict or regulate an abortion by a particular
  method or during a particular stage of pregnancy.
         Sec. 171.205.  EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.
  (a) This subchapter does not apply if a physician believes a
  medical emergency exists that prevents compliance with this
  subchapter.
         (b)  A physician who performs or induces an abortion under
  circumstances described by Subsection (a) shall make written
  notations in the pregnant woman's medical record of:
               (1)  the physician's belief that a medical emergency
  necessitated the abortion; and
               (2)  the medical condition of the pregnant woman that
  prevented compliance with this subchapter.
         (c)  A physician performing or inducing an abortion under
  this section shall maintain in the physician's practice records a
  copy of the notations made under Subsection (b) until the seventh
  anniversary of the date that the abortion is performed or induced.
         Sec. 171.206.  CONSTRUCTION OF SUBCHAPTER. (a) This
  subchapter does not create or recognize a right to abortion before a
  fetal heartbeat is detected.
         (b)  This subchapter may not be construed to authorize the
  initiation of a cause of action against or the prosecution of a
  woman on whom an abortion is performed or induced or attempted to be
  performed or induced in violation of this subchapter.
         Sec. 171.207.  CRIMINAL OFFENSE. (a)  A person commits an
  offense if the person violates this subchapter.
         (b)  An offense under this section is a state jail felony.
         Sec. 171.208.  ADMINISTRATIVE PENALTY. The Texas Medical
  Board may take disciplinary action under Chapter 164, Occupations
  Code, or assess an administrative penalty under Subchapter A,
  Chapter 165, Occupations Code, against a person who violates this
  subchapter.
         Sec. 171.209.  WRONGFUL DEATH ACTION. (a) A woman on whom
  an abortion is performed or induced in violation of this subchapter
  may file a civil action for wrongful death under Section 71.002,
  Civil Practice and Remedies Code.
         (b)  Notwithstanding Section 71.010, Civil Practice and
  Remedies Code, a woman who prevails in an action described by
  Subsection (a) may:
               (1)  elect damages in the amount of $10,000 or an amount
  determined by the trier of fact after the consideration of evidence
  and before final judgment; and
               (2)  recover court costs and reasonable attorney's
  fees.
         (c)  If a physician prevails in an action described by
  Subsection (a) and the court finds that the pleading for the action
  violated Section 9.011, Civil Practice and Remedies Code, the court
  shall award reasonable attorney's fees to the physician.
         SECTION 3.  Subchapter A, Chapter 171, Health and Safety
  Code, is amended by adding Section 171.008 to read as follows:
         Sec. 171.008.  REQUIRED DOCUMENTATION. (a) If an abortion
  is performed or induced on a pregnant woman because of a medical
  emergency, the physician who performs or induces the abortion shall
  execute a written document that certifies the abortion is necessary
  due to a medical emergency and specifies the woman's medical
  condition requiring the abortion.
         (b)  A physician shall:
               (1)  place the document described by Subsection (a) in
  the pregnant woman's medical record; and 
               (2)  maintain a copy of the document described by
  Subsection (a) in the physician's practice records until the
  seventh anniversary of the date that the document is executed.
         SECTION 4.  Section 171.012, Health and Safety Code, is
  amended by amending Subsection (a) and adding Subsection (f) to
  read as follows:
         (a)  Consent to an abortion is voluntary and informed only
  if:
               (1)  the physician who is to perform the abortion
  informs the pregnant woman on whom the abortion is to be performed
  of:
                     (A)  the physician's name;
                     (B)  the particular medical risks associated with
  the particular abortion procedure to be employed, including, when
  medically accurate:
                           (i)  the risks of infection and hemorrhage;
                           (ii)  the potential danger to a subsequent
  pregnancy and of infertility; and
                           (iii)  the possibility of increased risk of
  breast cancer following an induced abortion and the natural
  protective effect of a completed pregnancy in avoiding breast
  cancer;
                     (C)  the probable gestational age of the unborn
  child at the time the abortion is to be performed; and
                     (D)  the medical risks associated with carrying
  the child to term;
               (2)  the physician who is to perform the abortion or the
  physician's agent informs the pregnant woman that:
                     (A)  medical assistance benefits may be available
  for prenatal care, childbirth, and neonatal care;
                     (B)  the father is liable for assistance in the
  support of the child without regard to whether the father has
  offered to pay for the abortion; and
                     (C)  public and private agencies provide
  pregnancy prevention counseling and medical referrals for
  obtaining pregnancy prevention medications or devices, including
  emergency contraception for victims of rape or incest;
               (3)  the physician who is to perform the abortion or the
  physician's agent:
                     (A)  provides the pregnant woman with the printed
  materials described by Section 171.014; and
                     (B)  informs the pregnant woman that those
  materials:
                           (i)  have been provided by the commission
  [Department of State Health Services];
                           (ii)  are accessible on an Internet website
  sponsored by the commission [department];
                           (iii)  describe the unborn child and list
  agencies that offer alternatives to abortion; and
                           (iv)  include a list of agencies that offer
  sonogram services at no cost to the pregnant woman;
               (4)  before any sedative or anesthesia is administered
  to the pregnant woman and at least 24 hours before the abortion or
  at least two hours before the abortion if the pregnant woman waives
  this requirement by certifying that she currently lives 100 miles
  or more from the nearest abortion provider that is a facility
  licensed under Chapter 245 or a facility that performs more than 50
  abortions in any 12-month period:
                     (A)  the physician who is to perform the abortion
  or an agent of the physician who is also a sonographer certified by
  a national registry of medical sonographers performs a sonogram on
  the pregnant woman on whom the abortion is to be performed;
                     (B)  the physician who is to perform the abortion
  displays the sonogram images in a quality consistent with current
  medical practice in a manner that the pregnant woman may view them;
                     (C)  the physician who is to perform the abortion
  provides, in a manner understandable to a layperson, a verbal
  explanation of the results of the sonogram images, including a
  medical description of the dimensions of the embryo or fetus, the
  presence of cardiac activity, and the presence of external members
  and internal organs; [and]
                     (D)  the physician who is to perform the abortion
  or an agent of the physician who is also a sonographer certified by
  a national registry of medical sonographers makes audible the heart
  auscultation for the pregnant woman to hear, if present, in a
  quality consistent with current medical practice and provides, in a
  manner understandable to a layperson, a simultaneous verbal
  explanation of the heart auscultation; and
                     (E)  if a fetal heartbeat is detected under
  Section 171.203, the physician who is to perform the abortion
  informs the woman in writing of the statistical probability of
  bringing the unborn child to term:
                           (i)  to the best of the physician's
  knowledge, based on the gestational age of the unborn child; or
                           (ii)  as provided by commission rule;
               (5)  before receiving a sonogram under Subdivision
  (4)(A) and before the abortion is performed and before any sedative
  or anesthesia is administered, the pregnant woman completes and
  certifies with her signature an election form that states as
  follows:
  "ABORTION AND SONOGRAM ELECTION
               (1)  THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY
  SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN
  PROVIDED AND EXPLAINED TO ME.
               (2)  I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN
  ABORTION.
               (3)  TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR
  TO RECEIVING AN ABORTION.
               (4)  I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE
  SONOGRAM IMAGES.
               (5)  I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE
  HEARTBEAT.
               (6)  I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN
  EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO
  ONE OF THE FOLLOWING:
               ___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,
  INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN
  REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN
  REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT
  RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
               ___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE
  WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY
  CODE.
               ___ MY FETUS HAS AN IRREVERSIBLE MEDICAL CONDITION OR
  ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND
  DOCUMENTED IN MY MEDICAL FILE.
               (7)  I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND
  WITHOUT COERCION.
               (8)  FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE
  NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER
  245, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE
  THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
               I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR
  MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED
  UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS
  IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS
  AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION
  PROCEDURE. MY PLACE OF RESIDENCE IS:__________.
         ________________________________________
         SIGNATURE DATE";
               (6)  before the abortion is performed, the physician
  who is to perform the abortion receives a copy of the signed,
  written certification required by Subdivision (5); and
               (7)  the pregnant woman is provided the name of each
  person who provides or explains the information required under this
  subsection.
         (f)  The executive commissioner may adopt rules that specify
  the information required under Subsection (a)(4)(E) regarding the
  statistical probability of bringing an unborn child to term based
  on the gestational age of the child. The information in the rules
  must be based on available medical evidence.
         SECTION 5.  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 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;
               (10)  whether the abortion was performed or induced
  because of a medical emergency and any medical condition of the
  pregnant woman that required the abortion;
               (11)  whether the physician made a determination of the
  presence of a fetal heartbeat in accordance with Section 171.203;
  and
               (12)  whether the physician performed or induced the
  abortion under circumstances described by Section 171.205.
         SECTION 6.  (a) After the issuance of a decision by the
  United States Supreme Court overruling any prior ruling that
  prohibits states from wholly or partly prohibiting abortion, the
  issuance of any court order or judgment restoring, expanding, or
  clarifying the authority of states to wholly or partly prohibit or
  regulate abortion, or the effective date of an amendment to the
  United States Constitution restoring, expanding, or clarifying the
  authority of states to wholly or partly prohibit or regulate
  abortion, the attorney general may apply to the appropriate state
  or federal court for:
               (1)  a declaration that any one or more provisions of
  this Act are constitutional; or
               (2)  a judgment or order lifting an injunction against
  the enforcement of any one or more provisions of this Act.
         (b)  If the attorney general fails to apply for the relief
  described by Subsection (a) of this section not later than the 30th
  day after the date an event described by that subsection occurs, any
  district attorney may apply to the appropriate state or federal
  court for the relief described by that subsection.
         SECTION 7.  (a) It is the intent of the legislature that if a
  court suspends enforcement of any provision of this Act, the
  suspension is not to be regarded as repealing that provision.
         (b)  If any provision of this Act is held invalid or if the
  application of any provision to any person or circumstance is held
  invalid, the invalidity of that provision or application does not
  affect any other provision or applications of this Act that can be
  given effect without the invalid provision or application, and to
  this end, the provisions of this Act are severable. It is the
  intent of the legislature that any invalidity or potential
  invalidity of a provision of this Act does not impair the immediate
  and continuing enforceability of the remaining provisions. It is
  furthermore the intent of the legislature that the provisions of
  this Act do not have the effect of repealing or limiting any other
  laws of this state.
         SECTION 8.  The change in law made by this Act applies only
  to an abortion performed or induced on or after the effective date
  of this Act.
         SECTION 9.  This Act takes effect September 1, 2019.