By: Miller of Erath, et al. (Senate Sponsor - Patrick) H.B. No. 15
         (In the Senate - Received from the House March 8, 2011;
  April 5, 2011, read first time and referred to Committee on State
  Affairs; April 13, 2011, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 7, Nays 2;
  April 13, 2011, sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR H.B. No. 15 By:  Huffman
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to informed consent to an abortion.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 171.002, Health and Safety Code, is
  amended to read as follows:
         Sec. 171.002.  DEFINITIONS [DEFINITION].  In this chapter:
               (1)  "Abortion" [, "abortion"] means the use of any
  means to terminate the pregnancy of a female known by the attending
  physician to be pregnant with the intention that the termination of
  the pregnancy by those means will, with reasonable likelihood,
  cause the death of the fetus.
               (2)  "Abortion provider" means a facility where an
  abortion is performed, including the office of a physician and a
  facility licensed under Chapter 241, 243, or 245.
               (3)  "Medical emergency" means a life-threatening
  physical condition aggravated by, caused by, or arising from a
  pregnancy that, as certified by a physician, places the woman in
  danger of death or a serious risk of substantial impairment of a
  major bodily function unless an abortion is performed.
               (4)  "Rural county" means a county with a population of
  60,000 or less.
               (5)  "Sonogram" means the use of ultrasonic waves for
  diagnostic or therapeutic purposes, specifically to monitor an
  unborn child.
         SECTION 2.  Section 171.012, Health and Safety Code, is
  amended by amending Subsections (a), (b), and (c) and adding
  Subsection (a-1) to read as follows:
         (a)  Consent [Except in the case of a medical emergency,
  consent] to an abortion is voluntary and informed only if:
               (1)  the physician who is to perform the abortion [or
  the referring physician] informs the pregnant woman on whom the
  abortion is to be performed of:
                     (A)  the physician's name [of the physician who
  will perform the abortion];
                     (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; [and]
               (3)  the physician who is to perform the abortion or the
  physician's agent:
                     (A)  provides [(D)]  the pregnant woman with [has
  the right to review] the printed materials described by Section
  171.014; and
                     (B)  informs the pregnant woman[,] that those
  materials:
                           (i)  have been provided by the [Texas]
  Department of State Health Services;
                           (ii) [and]  are accessible on an Internet
  website sponsored by the department;
                           (iii) [, and that the materials]  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 right by certifying that she currently resides in a rural
  county or lives 100 miles or more from the nearest abortion
  provider:
                     (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;
               (5)  before receiving a sonogram under Subdivision
  (4)(A) and [(3) the woman certifies in writing] 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 A RIGHT TO VIEW THE
  SONOGRAM IMAGES. I ELECT ___ TO VIEW ___ NOT TO VIEW
  THE SONOGRAM IMAGES.
               (5)  I UNDERSTAND THAT I HAVE A RIGHT TO HEAR THE
  HEARTBEAT. I ELECT ___ TO HEAR ___ NOT 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.
               ___ I AM MAKING THIS ELECTION OF MY OWN FREE WILL
  AND WITHOUT COERCION OR SUGGESTION FROM THE DOCTOR,
  THE DOCTOR'S AGENT, OR THE SONOGRAPHER.
               FOR A RESIDENT OF A RURAL COUNTY ONLY:
               I CERTIFY THAT, BECAUSE I CURRENTLY RESIDE IN A
  RURAL COUNTY WITH A POPULATION OF 60,000 OR LESS OR I
  LIVE 100 MILES OR MORE FROM THE NEAREST ABORTION
  PROVIDER, I WAIVE MY RIGHT TO WAIT 24 HOURS AFTER THE
  SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION
  PROCEDURE. MY COUNTY OF RESIDENCE IS:__________.
         
         ________________________________________
         SIGNATURE                        DATE"
  [that the information described by Subdivisions (1) and (2) has
  been provided to her and that she has been informed of her
  opportunity to review the information described by Section
  171.014]; [and]
               (6) [(4)]  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 [(3)].
         (a-1)  During a visit made to a facility to fulfill the
  requirements of Subsection (a), the facility and any person at the
  facility may not accept any form of payment, deposit, or exchange or
  make any financial agreement for an abortion or abortion-related
  services other than for payment of a service required by Subsection
  (a). The amount charged for a service required by Subsection (a)
  may not exceed the reimbursement rate established for the service
  by the Health and Human Services Commission for statewide medical
  reimbursement programs.
         (b)  The information required to be provided under
  Subsections (a)(1) and (2) may not be provided by audio or video
  recording and must be provided at least 24 hours before the abortion
  is to be performed:
               (1)  orally and [by telephone or] in person in a private
  and confidential setting if the pregnant woman does not reside in a
  rural county; or [and]
               (2)  orally by telephone or in person in a private and
  confidential setting if the pregnant woman certifies that the woman
  currently resides in a rural county or lives 100 miles or more from
  the nearest abortion provider [at least 24 hours before the
  abortion is to be performed].
         (c)  When providing the information under Subsection (a)(3) 
  [(a)(2)(D)], the physician or the physician's agent must provide
  the pregnant woman with the address of the Internet website on which
  the printed materials described by Section 171.014 may be viewed as
  required by Section 171.014(e).
         SECTION 3.  Subchapter B, Chapter 171, Health and Safety
  Code, is amended by adding Sections 171.0121, 171.0122, 171.0123,
  and 171.0124 to read as follows:
         Sec. 171.0121.  MEDICAL RECORD.  (a)  Before the abortion
  begins, a copy of the signed, written certification received by the
  physician under Section 171.012(a)(6) must be placed in the
  pregnant woman's medical records.
         (b)  A copy of the signed, written certification required
  under Sections 171.012(a)(5) and (6) shall be retained by the
  abortion provider until:
               (1)  the seventh anniversary of the date it is signed;
  or
               (2)  if the pregnant woman is a minor, the later of:
                     (A)  the seventh anniversary of the date it is
  signed; or
                     (B)  the woman's 21st birthday.
         Sec. 171.0122.  VIEWING PRINTED MATERIALS AND SONOGRAM
  IMAGE; HEARING HEART AUSCULTATION OR VERBAL EXPLANATION. (a)  A
  pregnant woman may choose not to view the printed materials
  provided under Section 171.012(a)(3) after she has been provided
  the materials.
         (b)  A pregnant woman may choose not to view the sonogram
  images required to be provided to and reviewed with the pregnant
  woman under Section 171.012(a)(4).
         (c)  A pregnant woman may choose not to hear the heart
  auscultation required to be provided to and reviewed with the
  pregnant woman under Section 171.012(a)(4).
         (d)  A pregnant woman may choose not to receive the verbal
  explanation of the results of the sonogram images under Section
  171.012(a)(4)(C) if:
               (1)  the woman's pregnancy is a result of a sexual
  assault, incest, or other violation of the Penal Code that has been
  reported to law enforcement authorities or that has not been
  reported because she has a reason that she declines to reveal
  because she reasonably believes that to do so would put her at risk
  of retaliation resulting in serious bodily injury;
               (2)  the woman is a minor and obtaining an abortion in
  accordance with judicial bypass procedures under Chapter 33, Family
  Code; or
               (3)  the fetus has an irreversible medical condition or
  abnormality, as previously identified by reliable diagnostic
  procedures and documented in the woman's medical file.
         (e)  The physician and the pregnant woman are not subject to
  a penalty under this chapter solely because the pregnant woman
  chooses not to view the printed materials or the sonogram images,
  hear the heart auscultation, or receive the verbal explanation, if
  waived as provided by this section.
         Sec. 171.0123.  PATERNITY AND CHILD SUPPORT INFORMATION.  
  If, after being provided with a sonogram and the information
  required under this subchapter, the pregnant woman chooses not to
  have an abortion, the physician or an agent of the physician shall
  provide the pregnant woman with a publication developed by the
  Title IV-D agency that provides information about paternity
  establishment and child support, including:
               (1)  the steps necessary for unmarried parents to
  establish legal paternity;
               (2)  the benefits of paternity establishment for
  children;
               (3)  the steps necessary to obtain a child support
  order;
               (4)  the benefits of establishing a legal parenting
  order; and
               (5)  financial and legal responsibilities of
  parenting.
         Sec. 171.0124.  EXCEPTION FOR MEDICAL EMERGENCY. A
  physician may perform an abortion without obtaining informed
  consent under this subchapter in a medical emergency.  A physician
  who performs an abortion in a medical emergency shall:
               (1)  include in the patient's medical records a
  statement signed by the physician certifying the nature of the
  medical emergency; and
               (2)  not later than the 30th day after the date the
  abortion is performed, certify to the Department of State Health
  Services the specific medical condition that constituted the
  emergency.
         SECTION 4.  Section 171.013(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The [If the woman chooses to view the materials
  described by Section 171.014, the] physician or the physician's
  agent shall furnish copies of the materials described by Section
  171.014 to the pregnant woman [her] at least 24 hours before the
  abortion is to be performed and shall direct the pregnant woman to
  the Internet website required to be published under Section
  171.014(e). The [A] physician or the physician's agent may furnish
  the materials to the pregnant woman by mail if the materials are
  mailed, restricted delivery to addressee, at least 72 hours before
  the abortion is to be performed.
         SECTION 5.  Section 171.015, Health and Safety Code, is
  amended to read as follows:
         Sec. 171.015.  INFORMATION RELATING TO PUBLIC AND PRIVATE
  AGENCIES.  The informational materials must include [either]:
               (1)  geographically indexed materials designed to
  inform the pregnant woman of public and private agencies and
  services that:
                     (A)  are available to assist a woman through
  pregnancy, childbirth, and the child's dependency, including:
                           (i)  a comprehensive list of adoption
  agencies;
                           (ii)  a description of the services the
  adoption agencies offer; [and]
                           (iii)  a description of the manner,
  including telephone numbers, in which an adoption agency may be
  contacted; and
                           (iv)  a comprehensive list of agencies and
  organizations that offer sonogram services at no cost to the
  pregnant woman;
                     (B)  do not provide abortions or abortion-related
  services or make referrals to abortion providers; and
                     (C)  are not affiliated with organizations that
  provide abortions or abortion-related services or make referrals to
  abortion providers; and [or]
               (2)  a toll-free, 24-hour telephone number that may be
  called to obtain an oral list and description of agencies described
  by Subdivision (1) that are located near the caller and of the
  services the agencies offer.
         SECTION 6.  Subchapter A, Chapter 241, Health and Safety
  Code, is amended by adding Section 241.007 to read as follows:
         Sec. 241.007.  COMPLIANCE WITH CERTAIN REQUIREMENTS
  REGARDING SONOGRAM BEFORE ABORTION. A hospital shall comply with
  Subchapter B, Chapter 171.
         SECTION 7.  Subchapter A, Chapter 243, Health and Safety
  Code, is amended by adding Section 243.017 to read as follows:
         Sec. 243.017.  COMPLIANCE WITH CERTAIN REQUIREMENTS
  REGARDING SONOGRAM BEFORE ABORTION. An ambulatory surgical center
  shall comply with Subchapter B, Chapter 171.
         SECTION 8.  Section 245.006(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The department shall [may] inspect an abortion facility
  at random, unannounced, and reasonable times as necessary to ensure
  compliance with this chapter and Subchapter B, Chapter 171.
         SECTION 9.  Chapter 245, Health and Safety Code, is amended
  by adding Section 245.024 to read as follows:
         Sec. 245.024.  COMPLIANCE WITH CERTAIN REQUIREMENTS
  REGARDING SONOGRAM BEFORE ABORTION. An abortion facility shall
  comply with Subchapter B, Chapter 171.
         SECTION 10.  Section 164.055(a), Occupations Code, is
  amended to read as follows:
         (a)  The board shall [may] take an appropriate disciplinary
  action against a physician who violates Section 170.002 or Chapter
  171, Health and Safety Code. The board shall [may] refuse to admit
  to examination or refuse to issue a license or renewal license to a
  person who violates that section or chapter.
         SECTION 11.  Subchapter B, Chapter 164, Occupations Code, is
  amended by adding Section 164.0551 to read as follows:
         Sec. 164.0551.  COMPLIANCE WITH CERTAIN REQUIREMENTS
  REGARDING SONOGRAM BEFORE ABORTION.  A physician shall comply with
  Subchapter B, Chapter 171, Health and Safety Code.
         SECTION 12.  (a)  The legislature finds the following
  purposes and justifications for this law:
               (1)  States have "a substantial government interest
  justifying a requirement that a woman be apprised of the health
  risks of abortion and childbirth," including mental health
  considerations. Planned Parenthood of Southeastern Pennsylvania
  v. Casey, 505 U.S. 833, 882 (1992). "It cannot be questioned that
  psychological well-being is a facet of health. Nor can it be
  doubted that most women considering an abortion would deem the
  impact on the fetus relevant, if not dispositive, to the decision.
  In attempting to ensure that a woman apprehend the full
  consequences of her decision, the State furthers the legitimate
  purpose of reducing the risk that a woman may elect an abortion,
  only to discover later, with devastating psychological
  consequences, that her decision was not fully informed. If the
  information the State requires to be made available to the woman is
  truthful and not misleading, the requirement may be permissible."
  Id.
               (2)  The consideration of an abortion's consequences to
  a fetus is not contingent on the consideration of the health of the
  mother. Rather, those considerations provide a stand-alone basis
  for informed consent legislation. There is "no reason why the State
  may not require doctors to inform a woman seeking an abortion of the
  availability of materials relating to the consequences to the
  fetus, even when those consequences have no direct relation to her
  health." Id.
               (3)  In addition to the state's substantial interest in
  promoting the health and well-being of a pregnant woman, the state
  also has a "profound interest in potential life" of the unborn
  fetus. Id. at 878; see also Gonzales v. Carhart, 550 U.S. 124, 125
  (2007) (recognizing that the state has a legitimate interest "in
  protecting the life of the fetus that may become a child").
               (4)  A statute furthering a state's "legitimate goal of
  protecting the life of the unborn" by "ensuring a decision that is
  mature and informed" is permitted "even when in so doing the State
  expresses a preference for childbirth over abortion." Planned
  Parenthood, 505 U.S. at 883.
               (5)  In addition, the Supreme Court has held that
  "[r]egulations which do no more than create a structural mechanism
  by which the State, or the parent or guardian of a minor, may
  express profound respect for the life of the unborn are permitted,
  if they are not a substantial obstacle to the woman's exercise of
  the right to choose." Id. at 877. "Unless it has that effect on her
  right of choice, a state measure designed to persuade her to choose
  childbirth over abortion will be upheld if reasonably related to
  that goal." Id. at 878.
               (6)  "The State also has an interest in protecting the
  integrity and ethics of the medical profession." Washington v.
  Glucksberg, 521 U.S. 702, 731 (1997). An abortion performed
  without a medical professional's full disclosure to a pregnant
  woman of the impact on the fetus and the potential health
  consequences of an abortion could undermine the woman's trust in
  medical professionals. This Act is intended to protect the
  integrity and ethics of the medical profession by establishing
  clear requirements that are designed to ensure the health and
  informed consent of a pregnant woman who is contemplating an
  abortion.
         (b)  Therefore, it is the legislature's intent in enacting
  this Act to further the purposes stated in Subsection (a) of this
  section.
         (c)  Furthermore, with regard to the severability clause
  contained in this Act, the legislature finds:
               (1)  As the United States Supreme Court has explained,
  when reviewing an abortion statute, "the proper means to consider
  exceptions is by as-applied challenge." Gonzales, 550 U.S. at 167.
  Moreover, when reviewing abortion statutes, "[t]he latitude given
  facial challenges in the First Amendment context is inapplicable."
  Id. See also U.S. v. Salerno, 481 U.S. 739, 745 (1987) ("The fact
  that [a legislative Act] might operate unconstitutionally under
  some conceivable set of circumstances is insufficient to render it
  wholly invalid, since we have not recognized an 'overbreadth'
  doctrine outside the limited context of the First Amendment.").
               (2)  The United States Supreme Court has made the role
  of the court clear when reviewing statutes:  "It is neither our
  obligation nor within our traditional institutional role to resolve
  questions of constitutionality with respect to each potential
  situation that might develop." Gonzales, 550 U.S. at 168. "[I]t
  would indeed be undesirable for this Court to consider every
  conceivable situation which might possibly arise in the application
  of complex and comprehensive legislation." Id. (quoting U.S. v.
  Raines, 362 U.S. 17, 21 (1960) (internal quotation marks omitted)).
  "For this reason, '[a]s-applied challenges are the basic building
  blocks of constitutional adjudication.'" Gonzales, 550 U.S. at 168
  (quoting Richard Fallon, As-Applied and Facial Challenges and
  Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000)).
               (3)  Severability must be considered not only with
  respect to certain clauses or provisions of a statute but also with
  respect to applications of a statute or provision when some of the
  applications are unconstitutional. See Norman J. Singer, Statutes
  and Statutory Construction, Section 44.02 (4th ed. rev. 1986).
               (4)  Severability clauses in federal statutes treat
  severability of clauses and applications the same. See, e.g., 2
  U.S.C. Section 1438 ("If any provision of this chapter or the
  application of such provision to any person or circumstance is held
  to be invalid, the remainder of this chapter and the application of
  the provisions of the remainder to any person or circumstance shall
  not be affected thereby."); Section 1103 of the Social Security Act
  (42 U.S.C. Section 1303); Section 15 of the National Labor
  Relations Act (29 U.S.C. Section 165); Section 11 of the Railway
  Labor Act (45 U.S.C. Section 161); Section 14 of the Agricultural
  Adjustment Act (7 U.S.C. Section 614).
               (5)  Courts have treated severability of clauses and
  applications the same. See Robert L. Stern, Separability and
  Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76
  (1937).
         SECTION 13.  The purposes of this Act include, but are not
  limited to:
               (1)  protecting the physical and psychological health
  and well-being of pregnant women;
               (2)  providing pregnant women access to information
  that would allow her to consider the impact an abortion would have
  on her unborn child; and
               (3)  protecting the integrity and ethical standards of
  the medical profession.
         SECTION 14.  The change in law made by this Act applies only
  to an abortion performed on or after the 30th day after the
  effective date of this Act. An abortion performed before the 30th
  day after the effective date of this Act is governed by the law in
  effect on the date the abortion was performed, and the former law is
  continued in effect for that purpose.
         SECTION 15.  The Title IV-D agency shall publish the
  information required by Section 171.0123, Health and Safety Code,
  as added by this Act, not later than the 30th day after the
  effective date of this Act.
         SECTION 16.  Every provision 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 or group of persons or circumstances is found by a court to
  be invalid, the remainder of this Act and the application of the
  Act's provisions to all other persons and circumstances 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 invalid in a large or substantial fraction of relevant
  cases, the remaining valid applications shall be severed and
  allowed to remain in force.
         SECTION 17.  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, 2011.
 
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