Bill Text: TX HB59 | 2013 | 83rd Legislature 2nd Special Session | Introduced
Bill Title: Relating to a prohibition on abortion after detection of a fetal heartbeat; providing penalties.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced - Dead) 2013-07-18 - Filed [HB59 Detail]
Download: Texas-2013-HB59-Introduced.html
By: King of Parker | H.B. No. 59 |
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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; [ |
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(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. |