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A BILL TO BE ENTITLED
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AN ACT
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relating to abortion at or after 20 weeks post-fertilization. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. (a) This Act may be cited as the Preborn Pain |
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Act. |
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(b) The legislature finds that: |
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(1) substantial medical evidence recognizes that an |
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unborn child is capable of experiencing pain by not later than 20 |
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weeks after fertilization; |
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(2) the state has a compelling state interest in |
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protecting the lives of unborn children from the stage at which |
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substantial medical evidence indicates that these children are |
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capable of feeling pain; and |
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(3) the compelling state interest in protecting the |
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lives of unborn children from the stage at which substantial |
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medical evidence indicates that an unborn child is capable of |
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feeling pain is intended to be separate from and independent of the |
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compelling state interest in protecting the lives of unborn |
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children from the stage of viability, and neither state interest is |
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intended to replace the other. |
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SECTION 2. Chapter 171, Health and Safety Code, is amended |
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by adding Subchapter C to read as follows: |
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SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS |
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POST-FERTILIZATION |
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Sec. 171.041. DEFINITION. In this subchapter, |
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"post-fertilization age" means the age of the unborn child as |
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calculated from the fusion of a human spermatozoon with a human |
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ovum. |
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Sec. 171.042. DETERMINATION OF POST-FERTILIZATION AGE |
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REQUIRED. Except as otherwise provided by Section 171.045, a |
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physician may not perform or induce or attempt to perform or induce |
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an abortion without, prior to the procedure: |
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(1) making a determination of the probable |
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post-fertilization age of the unborn child; or |
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(2) possessing and relying on a determination of the |
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probable post-fertilization age of the unborn child made by another |
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physician. |
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Sec. 171.043. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS |
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POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by |
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Section 171.045, a person may not perform or induce or attempt to |
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perform or induce an abortion on a woman if it has been determined, |
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by the physician performing, inducing, or attempting to perform or |
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induce the abortion or by another physician on whose determination |
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that physician relies, that the probable post-fertilization age of |
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the unborn child is 20 or more weeks. |
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Sec. 171.044. METHOD OF ABORTION. (a) This section applies |
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only to an abortion authorized under Section 171.045(a)(1) or (2) |
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in which: |
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(1) the probable post-fertilization age of the unborn |
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child is 20 or more weeks; or |
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(2) the probable post-fertilization age of the unborn |
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child has not been determined but could reasonably be 20 or more |
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weeks. |
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(b) Except as otherwise provided by Section 171.045(a)(3), |
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a physician performing an abortion under Subsection (a) shall |
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terminate the pregnancy in the manner that, in the physician's |
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reasonable medical judgment, provides the best opportunity for the |
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unborn child to survive. |
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Sec. 171.045. EXCEPTIONS. (a) The prohibitions and |
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requirements under Sections 171.042, 171.043, and 171.044 do not |
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apply to an abortion performed if there exists a condition that, in |
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the physician's reasonable medical judgment, so complicates the |
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medical condition of the woman that, to avert the woman's death or a |
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serious risk of substantial or irreversible physical impairment of |
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a major bodily function, other than a psychological condition, it |
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necessitates, as applicable: |
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(1) the immediate abortion of her pregnancy without |
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the delay necessary to determine the probable post-fertilization |
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age of the unborn child; |
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(2) the abortion of her pregnancy even though the |
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post-fertilization age of the unborn child is 20 or more weeks; or |
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(3) the use of a method of abortion other than a method |
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described by Section 171.044(b). |
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(b) A physician may not take an action authorized under |
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Subsection (a) if the risk of death or a substantial and |
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irreversible physical impairment of a major bodily function arises |
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from a claim or diagnosis that the woman will engage in conduct that |
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may result in her death or in substantial and irreversible physical |
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impairment of a major bodily function. |
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Sec. 171.046. PROTECTION OF PRIVACY IN COURT PROCEEDINGS. |
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(a) Except as otherwise provided by this section, in a civil or |
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criminal proceeding or action involving an act prohibited under |
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this subchapter, the identity of the woman on whom an abortion has |
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been performed or induced or attempted to be performed or induced is |
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not subject to public disclosure if the woman does not give consent |
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to disclosure. |
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(b) Unless the court makes a ruling under Subsection (c) to |
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allow disclosure of the woman's identity, the court shall issue |
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orders to the parties, witnesses, and counsel and shall direct the |
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sealing of the record and exclusion of individuals from courtrooms |
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or hearing rooms to the extent necessary to protect the woman's |
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identity from public disclosure. |
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(c) A court may order the disclosure of information that is |
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confidential under this section if: |
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(1) a motion is filed with the court requesting |
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release of the information and a hearing on that request; |
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(2) notice of the hearing is served on each interested |
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party; and |
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(3) the court determines after the hearing and an in |
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camera review that disclosure is essential to the administration of |
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justice and there is no reasonable alternative to disclosure. |
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Sec. 171.047. CONSTRUCTION OF SUBCHAPTER. This subchapter |
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may not be construed to authorize the prosecution of or a cause of |
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action to be brought against a woman on whom an abortion is |
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performed or induced or attempted to be performed or induced in |
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violation of this subchapter. |
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SECTION 3. Section 245.011(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) The report must include: |
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(1) whether the abortion facility at which the |
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abortion is performed is licensed under this chapter; |
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(2) the patient's year of birth, race, marital status, |
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and state and county of residence; |
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(3) the type of abortion procedure; |
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(4) the date the abortion was performed; |
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(5) whether the patient survived the abortion, and if |
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the patient did not survive, the cause of death; |
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(6) the probable post-fertilization age of the unborn |
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child [period of gestation] based on the best medical judgment of |
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the attending physician at the time of the procedure; |
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(7) the date, if known, of the patient's last menstrual |
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cycle; |
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(8) the number of previous live births of the patient; |
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and |
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(9) the number of previous induced abortions of the |
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patient. |
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SECTION 4. Section 164.052(a), Occupations Code, is amended |
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to read as follows: |
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(a) A physician or an applicant for a license to practice |
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medicine commits a prohibited practice if that person: |
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(1) submits to the board a false or misleading |
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statement, document, or certificate in an application for a |
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license; |
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(2) presents to the board a license, certificate, or |
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diploma that was illegally or fraudulently obtained; |
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(3) commits fraud or deception in taking or passing an |
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examination; |
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(4) uses alcohol or drugs in an intemperate manner |
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that, in the board's opinion, could endanger a patient's life; |
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(5) commits unprofessional or dishonorable conduct |
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that is likely to deceive or defraud the public, as provided by |
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Section 164.053, or injure the public; |
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(6) uses an advertising statement that is false, |
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misleading, or deceptive; |
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(7) advertises professional superiority or the |
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performance of professional service in a superior manner if that |
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advertising is not readily subject to verification; |
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(8) purchases, sells, barters, or uses, or offers to |
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purchase, sell, barter, or use, a medical degree, license, |
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certificate, or diploma, or a transcript of a license, certificate, |
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or diploma in or incident to an application to the board for a |
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license to practice medicine; |
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(9) alters, with fraudulent intent, a medical license, |
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certificate, or diploma, or a transcript of a medical license, |
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certificate, or diploma; |
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(10) uses a medical license, certificate, or diploma, |
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or a transcript of a medical license, certificate, or diploma that |
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has been: |
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(A) fraudulently purchased or issued; |
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(B) counterfeited; or |
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(C) materially altered; |
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(11) impersonates or acts as proxy for another person |
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in an examination required by this subtitle for a medical license; |
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(12) engages in conduct that subverts or attempts to |
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subvert an examination process required by this subtitle for a |
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medical license; |
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(13) impersonates a physician or permits another to |
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use the person's license or certificate to practice medicine in |
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this state; |
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(14) directly or indirectly employs a person whose |
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license to practice medicine has been suspended, canceled, or |
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revoked; |
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(15) associates in the practice of medicine with a |
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person: |
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(A) whose license to practice medicine has been |
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suspended, canceled, or revoked; or |
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(B) who has been convicted of the unlawful |
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practice of medicine in this state or elsewhere; |
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(16) performs or procures a criminal abortion, aids or |
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abets in the procuring of a criminal abortion, attempts to perform |
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or procure a criminal abortion, or attempts to aid or abet the |
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performance or procurement of a criminal abortion; |
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(17) directly or indirectly aids or abets the practice |
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of medicine by a person, partnership, association, or corporation |
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that is not licensed to practice medicine by the board; |
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(18) performs an abortion on a woman who is pregnant |
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with a viable unborn child during the third trimester of the |
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pregnancy unless: |
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(A) the abortion is necessary to prevent the |
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death of the woman; |
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(B) the viable unborn child has a severe, |
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irreversible brain impairment; or |
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(C) the woman is diagnosed with a significant |
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likelihood of suffering imminent severe, irreversible brain damage |
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or imminent severe, irreversible paralysis; [or] |
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(19) performs an abortion on an unemancipated minor |
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without the written consent of the child's parent, managing |
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conservator, or legal guardian or without a court order, as |
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provided by Section 33.003 or 33.004, Family Code, authorizing the |
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minor to consent to the abortion, unless the physician concludes |
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that on the basis of the physician's good faith clinical judgment, a |
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condition exists that complicates the medical condition of the |
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pregnant minor and necessitates the immediate abortion of her |
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pregnancy to avert her death or to avoid a serious risk of |
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substantial impairment of a major bodily function and that there is |
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insufficient time to obtain the consent of the child's parent, |
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managing conservator, or legal guardian; or |
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(20) performs or induces or attempts to perform or |
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induce an abortion in violation of Subchapter C, Chapter 171, |
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Health and Safety Code. |
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SECTION 5. Section 164.055(b), Occupations Code, is amended |
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to read as follows: |
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(b) The sanctions provided by Subsection (a) are in addition |
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to any other grounds for refusal to admit persons to examination |
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under this subtitle or to issue a license or renew a license to |
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practice medicine under this subtitle. The criminal penalties |
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provided by Section 165.152 do not apply to a violation of Section |
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170.002 or Subchapter C, Chapter 171, Health and Safety Code. |
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SECTION 6. This Act may not be construed to repeal, by |
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implication or otherwise, Section 164.052(a)(18), Occupations |
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Code, Section 170.002, Health and Safety Code, or any other |
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provision of Texas law regulating or restricting abortion not |
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specifically addressed by this Act. An abortion that complies with |
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this Act but violates any other law is unlawful. An abortion that |
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complies with another state law but violates this Act is unlawful as |
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provided in this Act. |
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SECTION 7. (a) If some or all of the provisions of this Act |
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are ever temporarily or permanently restrained or enjoined by |
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judicial order, all other provisions of Texas law regulating or |
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restricting abortion shall be enforced as though the restrained or |
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enjoined provisions had not been adopted; provided, however, that |
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whenever the temporary or permanent restraining order or injunction |
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is stayed or dissolved, or otherwise ceases to have effect, the |
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provisions shall have full force and effect. |
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(b) Mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), in |
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which in the context of determining the severability of a state |
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statute regulating abortion the United States Supreme Court noted |
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that an explicit statement of legislative intent specifically made |
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applicable to a particular statute is of greater weight than a |
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general savings or severability clause, it is the intent of the |
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legislature that if any provision, section, subsection, sentence, |
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clause, phrase, or word of this Act or the application thereof to |
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any person or circumstance is found to be unconstitutional, the |
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provision, section, subsection, sentence, clause, phrase, or word |
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is hereby declared to be severable and the balance of this Act |
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remains effective notwithstanding such unconstitutionality. |
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Moreover, the legislature declares that it would have passed this |
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Act, and each provision, section, subsection, sentence, clause, |
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phrase, or word thereof, irrespective of the fact that any |
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provision, section, subsection, sentence, clause, phrase, or word, |
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or any of their applications, were to be declared unconstitutional. |
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SECTION 8. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2013. |