By: Hefner H.B. No. 4876

A BILL TO BE ENTITLED

AN ACT

imposing liability on those who perform or assist unlawful abortions.

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

SECTION 1. Section 71.001, Civil Practice And Remedies Code, is amended to read as follows:

Sec. 71.001. DEFINITIONS. In this subchapter:

(1) "Corporation" means a municipal, private, public, or quasi-public corporation other than a county or a common or independent school district.

(2) "Person" means an individual, association of individuals, joint-stock company, or corporation or a trustee or receiver of an individual, association of individuals, joint-stock company, or corporation.

(3) "Death" includes, for an individual who is an unborn child, the failure to be born alive.

(4) "Individual" includes an unborn child at every stage of gestation from fertilization until birth.

(5) "Wrongful act" includes, but is not limited to:

(A) The violation of any state or federal law, including 18 U.S.C. §§ 1461-1462;

(B) The manufacture, marketing, mailing, distribution, transportation, delivery, provision, or possession of mifepristone; and

(C) The marketing, mailing, distribution, transportation, delivery, provision, or possession of misoprostol with the intent of facilitating an unlawful abortion.

(6) "Abortion" means the act of using, prescribing, administering, procuring, or selling any instrument, medicine, drug, or any other substance, device, or means with the purpose to terminate the pregnancy of a woman, with knowledge that the termination by any of those means will with reasonable likelihood cause the death of a living human being in the womb. The term does not include:

(A) In vitro fertilization or fertility treatments of any type;

(B) The use, prescription, administration, procuring, or selling of Plan B, morning-after pills, intrauterine devices, or any other type of contraception or emergency contraception;

(C) An act performed with the purpose to:

(i) Save the life or preserve the health of the unborn child;

(ii) Remove a dead unborn child caused by spontaneous abortion; or

(iii) Remove or treat an ectopic pregnancy, the implantation of a fertilized egg or embryo outside of the uterus.

(7) "Unlawful abortion" includes, but is not limited to:

(A) An abortion performed in violation of any state or federal statute or any local or municipal ordinance, regardless of whether the executive or the judiciary is enforcing that statute or ordinance; and

(B) A drug-induced abortion in which any part of the drug regimen is swallowed, ingested, administered, or self-administered in a jurisdiction where the abortion is prohibited by statute or ordinance.

SECTION 2. Section 71.003, Civil Practice And Remedies Code, is amended to read as follows:

Sec. 71.003. APPLICATION; CERTAIN CONDUCT EXCEPTED. (a) This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if the individual had lived or had been born alive.

(b) This subchapter applies whether the injury occurs inside or outside this state.

(c) This subchapter does not apply to a claim for the death of an individual who is an unborn child that is brought against:

(1) the mother of the unborn child;

(2) a physician or other licensed health care provider, if the death is the intended result of a lawful medical procedure performed by the physician or health care provider with the requisite consent; or

(3) a person who dispenses or administers a drug in accordance with law, if the death is the result of the dispensation or administration of the drug; or

(4) a physician or other health care provider licensed in this state, if the death directly or indirectly is caused by, associated with, arises out of, or relates to a lawful medical or health care practice or procedure of the physician or the health care provider.

SECTION 3. Section 71.007, Civil Practice And Remedies Code, is amended to read as follows:

Sec. 71.007. INEFFECTIVE AGREEMENT. (a) An agreement between the owner of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant, or of other machinery and an individual, corporation, trustee, receiver, lessee, joint-stock association, or other entity in control of or operating the vehicle, plant, or other machinery does not release the owner or the entity controlling or operating the vehicle, plant, or other machinery from liability provided by this subchapter.

(b) Notwithstanding any other law, any agreement to waive or limit the right to sue or recover for the death of a pregnant woman or unborn child resulting from an unlawful abortion is void as against public policy, is not enforceable in any court, and does not release any person from liability under this subchapter.

SECTION 4. Section 71.009, Civil Practice And Remedies Code, is amended to read as follows:

Sec. 71.009. EXEMPLARY DAMAGES. (a) When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.

(b) When the death is caused by an unlawful abortion, the plaintiff shall be entitled to recover exemplary damages of not less than five million dollars $5,000,000 from each defendant that acted with the intent of causing or facilitating the death of an unborn child.

SECTION 5. Chapter 71, Civil Practice And Remedies Code, is amended by adding sections 71.013, 71.014, 71.015, 71.0151, 71.0152, 71.0153, 71.0154, 71.016, 71.017, and 71.018 to read as follows:

Sec. 71.013. MARKET-SHARE LIABILITY FOR MANUFACTURERS OF MIFEPRISTONE. When the death is caused by an unlawful abortion in which mifepristone was used, and the plaintiff is unable to identify the manufacturer of the mifepristone that was used, liability shall be apportioned among all manufacturers of mifepristone in proportion to each manufacturer's share of the market for mifepristone, in accordance with Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)., 607 P.2d 924 (Cal. 1980).

Sec. 71.014. PERMISSIBLE AND IMPERMISSIBLE DEFENSES. (a) Notwithstanding any other law, when the death is caused an unlawful abortion the following are not a defense to an action brought under this subchapter:

(1) ignorance or mistake of law;

(2) a defendant's belief that the requirements or provisions of this subchapter are unconstitutional or were unconstitutional;

(3) a defendant's reliance on any court decision that has been vacated, reversed, or overruled on appeal or by a subsequent court, even if that court decision had not been vacated, reversed, or overruled when the cause of action accrued;

(4) a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought;

(5) a defendant's reliance on any federal statute, agency rule or action, or treaty that has been repealed, superseded, or declared invalid or unconstitutional, even if that federal statute, agency rule or action, or treaty had not been repealed, superseded, or declared invalid or unconstitutional when the cause of action accrued;

(6) non-mutual issue preclusion or non-mutual claim preclusion;

(7) the consent of the plaintiff or the unborn child's mother to the abortion, or the consent of one or both of the parents of the unborn child's mother, if she was an unemancipated minor, or the consent of the legal guardian of the unborn child's mother;

(8) contributory or comparative negligence;

(9) assumption of risk;

(10) sovereign immunity, governmental immunity, official immunity, or qualified immunity; or

(11) any claim that the enforcement of this subchapter or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by Subsection (b).

(b) A defendant against whom an action is brought under this subchapter may assert an affirmative defense to liability if:

(1) the imposition of civil liability on the defendant will violate constitutional or federally protected rights that belong to the defendant personally; or

(2) the defendant

(A) has standing to assert the rights of a third party under the tests for third-party standing established by the Supreme Court of the United States; and

(B) demonstrates that the imposition of civil liability on the defendant will violate constitutional or federally protected rights belonging to that third party.

The defendant shall bear the burden of proving the affirmative defense in Subsection (a) by a preponderance of the evidence.

(c) Notwithstanding any other law, when the death is caused an unlawful abortion a civil action under this subchapter may not be brought:

(1) against the mother of the aborted unborn child;

(2) against any person that acted at the behest of federal agencies, contractors, or employees that are carrying out duties under federal law, if the imposition of liability would violate the doctrines of preemption or intergovernmental immunity;

(3) against any common carrier that transports a pregnant woman to an abortion provider, if the common carrier is unaware that the woman intends to abort her unborn child;

(4) against a provider or user of an interactive computer service if such a lawsuit would be preempted by 47 U.S.C. § 230(c);

(5) by any person who impregnated the mother of the aborted unborn child through an act of rape, sexual assault, or incest, or by anyone who acts in concert or participation with such a person; or

(6) against a manufacturer, marketer, mailer, distributor, transporter, deliverer, provider, or possessor of misoprostol, if the person did not act with the intent of facilitating an unlawful abortion.

(d) Nothing in this section or subchapter shall limit or preclude a defendant from asserting the unconstitutionality of any provision or application of this subchapter as a defense to liability, or from asserting any other defense that might be available under any other source of law.

Sec. 71.015. LIMITATIONS. Notwithstanding any other law, including Chapter 16, Civil Practice and Remedies Code, when death is caused by an unlawful abortion, a person may bring an action under this subchapter not later than the tenth anniversary of the date the cause of action accrues.

Sec. 71.0151. LONG-ARM JURISDICTION. Notwithstanding any other law, including Chapter 17, Civil Practice and Remedies Code, when death is caused by an unlawful abortion, the courts of this state shall have personal jurisdiction over any defendant sued under this subchapter to the maximum extent permitted by the Fourteenth Amendment to the United States Constitution.

Sec. 71.0152. VENUE. (a) Notwithstanding any other law, including Chapter 15, Civil Practice and Remedies Code, when death is caused by an unlawful abortion, a civil action brought under this subchapter may be brought in:

(1) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

(2) the county of residence for any one of the natural person defendants at the time the cause of action accrued;

(3) the county of the principal office in this state of any one of the defendants that is not a natural person; or

(4) the county of residence for the claimant if the claimant is a natural person residing in this state.

(b) Notwithstanding any other law, if a civil action is brought under this subchapter in response to a death caused by an unlawful abortion in any one of the venues described by Subsection (a), then the action may not be transferred to a different venue without the written consent of all parties.

(c) Any contractual choice-of-forum provision that purports to require a civil action under this subchapter to be litigated in another forum is void as against public policy, and may not be enforced in any state or federal court.

Sec. 71.0153. CHOICE OF LAW. (a) Notwithstanding any other law, the law of Texas shall apply to any abortion performed or induced by or upon a resident or citizen of Texas, regardless of where that abortion occurs, and to any civil action brought under this subchapter, to the maximum extent permitted by the Constitution of the United States and the Texas Constitution.

(b) Notwithstanding any other law, no court may apply the law of another state or jurisdiction to any civil action brought under this subchapter, unless the Constitution of the United States or the Texas Constitution compels it to do so.

(c) Any contractual choice-of-law provision that purports to require the law of another jurisdiction to govern a civil action brought under this subchapter is void as against public policy, and may not be enforced in any state or federal court.

Sec. 71.0154. ANTI-SLAPP AND TEXAS RFRA EXCLUSIONS. Notwithstanding any other law, a civil action under this subchapter shall not be subject to any provision of Chapter 27, Civil Practice and Remedies Code, or Chapter 110, Civil Practice and Remedies Code.

Sec. 71.016. PRIVATE ENFORCEMENT EXCLUSIVE. (a) Notwithstanding any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions established in this subchapter. No direct or indirect enforcement of this subchapter may be taken or threatened by the state or a political subdivision, by any means whatsoever, and no violation of this subchapter may be used to justify or trigger the enforcement of any other law or any type of adverse consequence under any other law, except as provided in this subchapter. This section does not preclude or limit the enforcement of any other law or regulation against conduct that is independently prohibited by such other law or regulation, and that would remain prohibited by such other law or regulation in the absence of this subchapter.

(b) Notwithstanding any other law, neither the state nor any of its political subdivisions may:

(1) act in concert or participation with anyone who brings suit under this subchapter;

(2) establish or attempt to establish any type of agency or fiduciary relationship with a person who brings suit under this subchapter;

(3) make any attempt to control or influence a person's decision to bring suit under this subchapter or that person's conduct of the litigation; or

(4) intervene in any action brought under this subchapter.

This subsection does not prohibit a person or entity described by this subsection from filing an amicus curiae brief in the action, so long as that person or entity does not act in concert or participation with the plaintiff or plaintiffs who sue under this subchapter or violate any provision of Subsection (b)(1)-(4).

Sec. 71.017. IMMUNITY FROM SUIT AND LIMITS ON STATE-COURT JURISDICTION. (a) Notwithstanding any other law, the state and each of its officers and employees shall have sovereign immunity, its political subdivisions and each of their officers and employees shall have governmental immunity, and each officer and employee of this state or a political subdivision shall have official immunity (as well as sovereign or governmental immunity, as appropriate) in any action, claim, counterclaim, or any type of legal or equitable action that challenges the validity of any provision or application of this subchapter, on constitutional grounds or otherwise, or that seeks to prevent or enjoin the state, its political subdivisions, or any officer or employee of this state or a political subdivision from enforcing any provision or application of this subchapter, or from hearing, adjudicating, or docketing a civil action brought under this subchapter, unless that immunity has been abrogated or preempted by federal law in a manner consistent with the Constitution of the United States. The sovereign immunity conferred by this section upon the state and each of its officers and employees includes the constitutional sovereign immunity recognized by the Supreme Court of the United States in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, , 517 U.S. 44 (1996), and Alden v. Maine, 527 U.S. 706 (1999), which applies in both state and federal court and which may not be abrogated by Congress or by any state or federal court except pursuant to legislation authorized by section 5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article I, or by Congress's powers to raise and support Armies and to provide and maintain a Navy.

(b) Notwithstanding any other law, the immunities conferred by Subsection (a) shall apply in every court, both state and federal, and in every adjudicative proceeding of any type whatsoever.

(c) Notwithstanding any other law, no provision of state law may be construed to waive or abrogate an immunity described in Subsection (a) unless it expressly waives or abrogates immunity with specific reference to this section.

(d) Notwithstanding any other law, no attorney representing the state, its political subdivisions, or any officer or employee of this state or a political subdivision is authorized or permitted to waive an immunity described in Subsection (a) or take any action that would result in a waiver of that immunity, and any such action or purported waiver shall be regarded as a legal nullity and an ultra vires act.

(e) Notwithstanding any other law, including Chapter 37, Civil Practice and Remedies Code, and sections 22.002, 22.221, and 24.007 through 24.011, Government Code, no court of this state may award declaratory or injunctive relief, or any type of writ, that would pronounce any provision or application of this subchapter invalid or unconstitutional, or that would restrain the state, its political subdivisions, any officer, employee, or agent of this state or a political subdivision, or any person from enforcing any provision or application of this subchapter, or from hearing, adjudicating, docketing, or filing a civil action brought under this subchapter, and no court of this state shall have jurisdiction to consider any action, claim, or counterclaim that seeks such relief.

(f) Nothing in this section or subchapter shall be construed to prevent a litigant from asserting the invalidity or unconstitutionality of any provision or application of this subchapter as a defense to any action, claim, or counterclaim brought against that litigant.

(g) Notwithstanding any other law, any judicial relief issued by a court of this state that disregards the immunities conferred by Subsection (a), or the jurisdictional limitations imposed by Subsection (e), shall be regarded as a legal nullity because it was issued by a court without jurisdiction, and may not be enforced or obeyed by any officer or employee of this state or a political subdivision, judicial or otherwise.

(h) Notwithstanding any other law, any writ, injunction, or declaratory judgment issued by a court of this state that purports to restrain the state, its political subdivisions, any officer or employee of this state or a political subdivision, or any person from hearing, adjudicating, docketing, or filing a civil action brought under this subchapter shall be regarded as a legal nullity and a violation of the Due Process Clause of the Fourteenth Amendment, and may not be enforced or obeyed by any officer or employee of this state or a political subdivision, judicial or otherwise.

(i) Notwithstanding any other law, any officer or employee of this state or a political subdivision, judicial or otherwise, who issues, enforces, or obeys a writ, injunction, or declaratory judgment described in Subsection (h) shall be subject to suit by any person who is prevented from or delayed in bringing a civil action under this subchapter, and a claimant who prevails in an action brought under this section shall recover:

(1) injunctive relief;

(2) compensatory damages;

(3) punitive damages of not less than $100,000; and

(4) costs and reasonable attorney's fees.

(j) Notwithstanding any other law, any person who violates Subsections (e) or (h):

(1) may not assert and shall not be entitled to any type of immunity defense, including sovereign immunity, governmental immunity, official immunity, or judicial immunity;

(2) may not and shall not be indemnified for any award of damages or costs and attorneys' fees entered against them, or for the costs of their legal defense; and

(3) may not and shall not receive or obtain legal representation from the attorney general of this state in any action brought under Subsection (i).

(k) Notwithstanding any other law, any person who sues and seeks any writ, injunction, or declaratory judgment that would restrain any person from hearing, adjudicating, docketing, or filing a civil action brought under this subchapter, shall pay the costs and attorneys' fees of the person sued. A person may bring a civil action to recover these costs and attorneys' fees in state or federal court. It shall not be defense to a civil action brought under this Subsection that:

(1) the plaintiff failed to seek recovery of costs or attorney's fees in the underlying action;

(2) the court in the underlying action declined to recognize or enforce the requirements of this Section; or

(3) the court in the underlying action held that any provisions of this Section are invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.

Sec. 71.018. SEVERABILITY. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the severability of a state statute the Supreme Court of the United States 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 subchapter, and every application of the provisions in this subchapter to every person, group of persons, or circumstances, are severable from each other.

(b) If any application of any provision in this subchapter to any person, group of persons, or circumstances is found by a court to be invalid, preempted, or unconstitutional, for any reason whatsoever, then the remaining applications of that provision to all other persons and circumstances shall be severed and preserved, and shall remain in effect. All constitutionally valid applications of the provisions in this subchapter shall be severed from any applications that a court finds to be invalid, preempted, or unconstitutional, because it is the legislature's intent and priority that every single valid application of every statutory provision be allowed to stand alone.

(c) The legislature further declares that it would have enacted this subchapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of the provisions of this subchapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this subchapter were to be declared invalid, preempted, or unconstitutional.

(d) If any provision of this subchapter is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force, consistent with the severability requirements of Subsections (a), (b), and (c).

(e) No court may decline to enforce the severability requirements of Subsections (a), (b), (c), and (d) on the ground that severance would "rewrite" the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision is never rewriting a statute or engaging in legislative or lawmaking activity, as the statute continues to contain the same words as before the court's decision. A judicial injunction or declaration of unconstitutionality:

(1) is nothing more than an edict prohibiting enforcement of the disputed statute against the named parties to that lawsuit, which may subsequently be vacated by a later court if that court has a different understanding of the requirements of the Texas State Constitution or United States Constitution;

(2) is not a formal amendment of the language in a statute; and

(3) no more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.

(f) If any state or federal court disregards any of the severability requirements in Subsections (a), (b), (c), (d), or (e), and declares or finds any provision of this subchapter facially invalid, preempted, or unconstitutional, when there are discrete applications of that provision that can be enforced against a person, group of persons, or circumstances without violating federal law or the federal or state constitutions, then that provision shall be interpreted, as a matter of state law, as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision's application will not violate federal law or the federal or state constitutions, and every court shall adopt this saving construction of that provision until the court ruling that pronounced the provision facially invalid, preempted, or unconstitutional is vacated or overruled.

SECTION 6. This Act takes effect September 1, 2023.