|
|
|
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. |