By: Huffines, Bettencourt  S.B. No. 258
         (In the Senate - Filed November 29, 2016; January 30, 2017,
  read first time and referred to Committee on Health & Human
  Services; March 7, 2017, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 6, Nays 2;
  March 7, 2017, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 258 By:  Buckingham
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the disposition of embryonic and fetal tissue remains;
  imposing a civil penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 171.012(a), Health and Safety Code, is
  amended to read as follows:
         (a)  Consent to an abortion is voluntary and informed only
  if:
               (1)  the physician who is to perform the abortion
  informs the pregnant woman on whom the abortion is to be performed
  of:
                     (A)  the physician's name;
                     (B)  the particular medical risks associated with
  the particular abortion procedure to be employed, including, when
  medically accurate:
                           (i)  the risks of infection and hemorrhage;
                           (ii)  the potential danger to a subsequent
  pregnancy and of infertility; and
                           (iii)  the possibility of increased risk of
  breast cancer following an induced abortion and the natural
  protective effect of a completed pregnancy in avoiding breast
  cancer;
                     (C)  the probable gestational age of the unborn
  child at the time the abortion is to be performed; and
                     (D)  the medical risks associated with carrying
  the child to term;
               (2)  the physician who is to perform the abortion or the
  physician's agent informs the pregnant woman that:
                     (A)  medical assistance benefits may be available
  for prenatal care, childbirth, and neonatal care;
                     (B)  the father is liable for assistance in the
  support of the child without regard to whether the father has
  offered to pay for the abortion; and
                     (C)  public and private agencies provide
  pregnancy prevention counseling and medical referrals for
  obtaining pregnancy prevention medications or devices, including
  emergency contraception for victims of rape or incest;
               (3)  the physician who is to perform the abortion or the
  physician's agent:
                     (A)  provides the pregnant woman with the printed
  materials described by Section 171.014; and
                     (B)  informs the pregnant woman that those
  materials:
                           (i)  have been provided by the Department of
  State Health Services;
                           (ii)  are accessible on an Internet website
  sponsored by the department;
                           (iii)  describe the unborn child and list
  agencies that offer alternatives to abortion; and
                           (iv)  include a list of agencies that offer
  sonogram services at no cost to the pregnant woman;
               (4)  the physician who is to perform the abortion or the
  physician's agent:
                     (A)  provides the pregnant woman with a
  disposition of remains form described by Section 171.0161; and
                     (B)  informs the pregnant woman that the form:
                           (i)  is provided by the Department of State
  Health Services;
                           (ii)  is accessible on the department's
  Internet website;
                           (iii)  describes the options for the
  disposition of the embryonic and fetal tissue remains; and
                           (iv)  must be completed by the pregnant
  woman and received by the physician before the abortion is
  performed;
               (5)  before any sedative or anesthesia is administered
  to the pregnant woman and at least 24 hours before the abortion or
  at least two hours before the abortion if the pregnant woman waives
  this requirement by certifying that she currently lives 100 miles
  or more from the nearest abortion provider that is a facility
  licensed under Chapter 245 or a facility that performs more than 50
  abortions in any 12-month period:
                     (A)  the physician who is to perform the abortion
  or an agent of the physician who is also a sonographer certified by
  a national registry of medical sonographers performs a sonogram on
  the pregnant woman on whom the abortion is to be performed;
                     (B)  the physician who is to perform the abortion
  displays the sonogram images in a quality consistent with current
  medical practice in a manner that the pregnant woman may view them;
                     (C)  the physician who is to perform the abortion
  provides, in a manner understandable to a layperson, a verbal
  explanation of the results of the sonogram images, including a
  medical description of the dimensions of the embryo or fetus, the
  presence of cardiac activity, and the presence of external members
  and internal organs; and
                     (D)  the physician who is to perform the abortion
  or an agent of the physician who is also a sonographer certified by
  a national registry of medical sonographers makes audible the heart
  auscultation for the pregnant woman to hear, if present, in a
  quality consistent with current medical practice and provides, in a
  manner understandable to a layperson, a simultaneous verbal
  explanation of the heart auscultation;
               (6) [(5)]  before receiving a sonogram under
  Subdivision (5)(A) [(4)(A)] and before the abortion is performed
  and before any sedative or anesthesia is administered, the pregnant
  woman completes and certifies with her signature an election form
  that states as follows:
  "ABORTION AND SONOGRAM ELECTION
               (1)  THE INFORMATION AND PRINTED MATERIALS
  DESCRIBED BY SECTIONS 171.012(a)(1)-(4)
  [171.012(a)(1)-(3)], TEXAS HEALTH AND SAFETY CODE,
  HAVE BEEN PROVIDED AND EXPLAINED TO ME.
               (2)  I UNDERSTAND THE NATURE AND CONSEQUENCES OF
  AN ABORTION.
               (3)  TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM
  PRIOR TO RECEIVING AN ABORTION.
               (4)  I UNDERSTAND THAT I HAVE THE OPTION TO VIEW
  THE SONOGRAM IMAGES.
               (5)  I UNDERSTAND THAT I HAVE THE OPTION TO HEAR
  THE HEARTBEAT.
               (6)  I UNDERSTAND THAT I AM REQUIRED BY LAW TO
  HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I
  CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
               ___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,
  INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT
  HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR
  THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY
  BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF
  RETALIATION RESULTING IN SERIOUS BODILY INJURY.
               ___ I AM A MINOR AND OBTAINING AN ABORTION IN
  ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER
  CHAPTER 33, TEXAS FAMILY CODE.
               ___ MY FETUS HAS AN IRREVERSIBLE MEDICAL
  CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE
  DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL
  FILE.
               (7)  I AM MAKING THIS ELECTION OF MY OWN FREE WILL
  AND WITHOUT COERCION.
               (8)  FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM
  THE NEAREST ABORTION PROVIDER THAT IS A FACILITY
  LICENSED UNDER CHAPTER 245, TEXAS HEALTH AND SAFETY
  CODE, OR A FACILITY THAT PERFORMS MORE THAN 50
  ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
               I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100
  MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT
  IS A FACILITY LICENSED UNDER CHAPTER 245, TEXAS HEALTH
  AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE THAN
  50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE
  REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS
  PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE.  MY
  PLACE OF RESIDENCE IS:__________.
         ________________________________________
         SIGNATURE                        DATE";
               (7) [(6)]  before the abortion is performed, the
  physician who is to perform the abortion receives:
                     (A)  a copy of the completed disposition of
  remains form required by Subdivision (4); and
                     (B)  a copy of the signed, written certification
  required by Subdivision (6) [(5)]; and
               (8) [(7)]  the pregnant woman is provided the name of
  each person who provides or explains the information required under
  this subsection.
         SECTION 2.  Section 171.0121, Health and Safety Code, is
  amended to read as follows:
         Sec. 171.0121.  MEDICAL RECORD. (a)  Before the abortion
  begins, a copy of both the completed disposition of remains form
  required under Section 171.012(a)(4) and the signed, written
  certification received by the physician under Section
  171.012(a)(7) [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)(6) [171.012(a)(5)] and (7) [(6)] shall be
  retained by the facility where the abortion is performed 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.
         SECTION 3.  Sections 171.0122(b), (c), and (d), Health and
  Safety Code, are amended to read as follows:
         (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)(5) [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)(5) [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)(5)(C) [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.
         SECTION 4.  The heading to Section 171.013, Health and
  Safety Code, is amended to read as follows:
         Sec. 171.013.  DISTRIBUTION OF STATE MATERIALS AND FORM.
         SECTION 5.  Section 171.013(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The physician or the physician's agent shall furnish
  copies of the materials described by Section 171.014 and the form
  described by Section 171.0161 to the pregnant woman 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 physician or the physician's agent
  may furnish the materials and form to the pregnant woman by mail if
  the materials and form are mailed, restricted delivery to
  addressee, at least 72 hours before the abortion is to be performed.
         SECTION 6.  Subchapter B, Chapter 171, Health and Safety
  Code, is amended by adding Section 171.0161 to read as follows:
         Sec. 171.0161.  DISPOSITION OF EMBRYONIC AND FETAL TISSUE
  REMAINS:  FORM; NONPROFIT ORGANIZATION ASSISTANCE REGISTRY; RULES.
  (a)  A pregnant woman may decide to inter or cremate the embryonic
  and fetal tissue remains of an unborn child who is aborted.
         (b)  The department shall develop and maintain a form for a
  pregnant woman to select the method of disposition of the embryonic
  and fetal tissue remains.
         (c)  The form must include:
               (1)  burial and cremation as methods of disposition of
  the embryonic and fetal tissue remains of an unborn child;
               (2)  a statement that the pregnant woman may elect to
  have the abortion provider dispose of the embryonic and fetal
  tissue remains in accordance with Section 697.005; and
               (3)  a statement that the pregnant woman may privately
  dispose of the embryonic and fetal tissue remains of an unborn child
  in a manner that complies with Section 697.005 but may be held
  financially responsible for the abortion provider's reasonable
  costs of preparing the remains for transport.
         (d)  The form must be:
               (1)  in English and Spanish;
               (2)  easily comprehensible; and
               (3)  in a large, clearly legible typeface.
         (e)  The department shall post the form on the department's
  Internet website.
         (f)  The department shall:
               (1)  establish and maintain a registry of:
                     (A)  participating funeral homes and cemeteries
  willing to provide free common burial or low-cost private burial;
  and
                     (B)  private nonprofit organizations that
  register with the department to provide financial assistance for
  the costs associated with burial or cremation of the embryonic and
  fetal tissue remains of an unborn child; and
               (2)  make the registry information available on request
  to a physician, physician's agent, or pregnant woman electing to
  privately dispose of the embryonic and fetal tissue remains.
         (g)  The executive commissioner shall adopt rules to
  implement this section.
         SECTION 7.  Subtitle B, Title 8, Health and Safety Code, is
  amended by adding Chapter 697 to read as follows:
  CHAPTER 697. DISPOSITION OF EMBRYONIC AND FETAL TISSUE REMAINS
         Sec. 697.001.  PURPOSE. The purpose of this chapter is to
  express the state's profound respect for the life of the unborn by
  providing for a dignified final disposition of embryonic and fetal
  tissue remains.
         Sec. 697.002.  DEFINITIONS. In this chapter:
               (1)  "Cremation" means the irreversible process of
  reducing remains to ashes or bone fragments through extreme heat
  and evaporation.
               (2)  "Department" means the Department of State Health
  Services.
               (3)  "Embryonic and fetal tissue remains" means an
  embryo, a fetus, body parts, or organs from a pregnancy for which
  the issuance of a fetal death certificate is not required by law.
  The term does not include the umbilical cord, placenta, gestational
  sac, blood, or body fluids.
               (4)  "Executive commissioner" means the executive
  commissioner of the Health and Human Services Commission.
               (5)  "Incineration" means the process of burning
  remains in an incinerator.
               (6)  "Interment" means the disposition of remains by
  entombment, burial, or placement in a niche.
               (7)  "Steam disinfection" means the act of subjecting
  remains to steam under pressure to disinfect the remains.
         Sec. 697.003.  APPLICABILITY OF CHAPTER. This chapter does
  not apply to embryonic and fetal tissue remains:
               (1)  expelled or removed from a pregnant woman who is
  not at the time of expulsion or removal in the care of a health care
  facility;
               (2)  sent to a clinical, diagnostic, pathological, or
  biomedical research laboratory for medical testing;
               (3)  sent to a forensic laboratory for testing related
  to a criminal investigation; or
               (4)  donated for research, provided the donation
  complies with the laws of this state.
         Sec. 697.004.  APPLICABILITY OF OTHER LAW. Embryonic and
  fetal tissue remains are not pathological waste. Except as
  otherwise provided by this chapter, Chapters 711 and 716 of this
  code and Chapter 651, Occupations Code, do not apply to the
  disposition of embryonic and fetal tissue remains.
         Sec. 697.005.  DISPOSITION OF EMBRYONIC AND FETAL TISSUE
  REMAINS. (a)  A health care facility in this state that provides
  health or medical care to a pregnant woman shall dispose of
  embryonic and fetal tissue remains related to that care by:
               (1)  interment;
               (2)  cremation or incineration; or
               (3)  steam disinfection followed by interment.
         (b)  The ashes resulting from the cremation or incineration
  of embryonic and fetal tissue remains:
               (1)  may be interred or scattered in any manner as
  authorized by law for human remains; and
               (2)  may not be placed in a landfill.
         (c)  A health care facility responsible for disposing of
  embryonic and fetal tissue remains may coordinate with an entity in
  the registry established under Section 171.0161 in an effort to
  offset the cost associated with burial or cremation of the
  embryonic and fetal tissue remains of an unborn child.
         (d)  The executive commissioner shall adopt rules to
  implement this section, including rules for the collection,
  storage, handling, and transportation of embryonic and fetal tissue
  remains.
         Sec. 697.006.  SUSPENSION OR REVOCATION OF LICENSE. The
  department may suspend or revoke the license of a health care
  facility that violates Section 697.005 or a rule adopted under this
  chapter.
         Sec. 697.007.  SUIT BY ATTORNEY GENERAL.  (a)  The attorney
  general, at the request of the department, may file suit against a
  health care facility that violates Section 697.005 or a rule
  adopted under this chapter for:
               (1)  injunctive relief, including a temporary
  restraining order, under Section 697.008;
               (2)  recovery of a civil penalty under Section 697.009;
  or
               (3)  both injunctive relief and a civil penalty.
         (b)  A suit filed under this section must be filed in a
  district court in Travis County or the county in which the health
  care facility described by Subsection (a) is located.
         Sec. 697.008.  INJUNCTIVE RELIEF. The attorney general may
  obtain injunctive relief in a suit filed under Section 697.007.
  Injunctive relief provided by this section is in addition to any
  other action, proceeding, or remedy authorized by law. It is not
  necessary to allege or prove in a suit filed under Section 697.007
  seeking injunctive relief that an adequate remedy at law does not
  exist or that substantial or irreparable harm would result from the
  continued violation.
         Sec. 697.009.  CIVIL PENALTY. (a)  A health care facility
  that violates Section 697.005 or a rule adopted under this chapter
  is liable for a civil penalty in an amount of $1,000 for each
  violation.  Each day of a continuing violation constitutes a
  separate violation.
         (b)  The attorney general may file suit under Section 697.007
  to collect the civil penalty.  The attorney general may recover
  reasonable expenses incurred in collecting the civil penalty,
  including court costs, reasonable attorney's fees, investigation
  costs, witness fees, and disposition expenses.
         SECTION 8.  Not later than December 1, 2017:
               (1)  the executive commissioner of the Health and Human
  Services Commission shall adopt the rules required to implement
  this Act; and
               (2)  the Department of State Health Services shall
  adopt the forms and procedures necessary to implement this Act.
         SECTION 9.  (a)  Chapter 171, Health and Safety Code, as
  amended by this Act, applies only to an abortion performed on or
  after February 1, 2018. An abortion performed before that date is
  governed by the law in effect immediately before the effective date
  of this Act, and that law is continued in effect for that purpose.
         (b)  Chapter 697, Health and Safety Code, as added by this
  Act, applies only to the disposition of embryonic and fetal tissue
  remains that occurs on or after February 1, 2018.  The disposition
  of embryonic and fetal tissue remains that occurs before February
  1, 2018, is governed by the law in effect immediately before the
  effective date of this Act, and the former law is continued in
  effect for that purpose.
         SECTION 10.  This Act takes effect September 1, 2017.
 
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