83S20017 JSC-F
	By: Laubenberg	H.B. No. 2

	A BILL TO BE ENTITLED
	AN ACT
	relating to the regulation of abortion procedures, providers, and
	facilities; providing penalties.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  (a)  The findings indicate that:
	(1)  substantial medical evidence recognizes that an
	unborn child is capable of experiencing pain by not later than 20
	weeks after fertilization;
	(2)  the state has a compelling state interest in
	protecting the lives of unborn children from the stage at which
	substantial medical evidence indicates that these children are
	capable of feeling pain;
	(3)  the compelling state interest in protecting the
	lives of unborn children from the stage at which substantial
	medical evidence indicates that an unborn child is capable of
	feeling pain is intended to be separate from and independent of the
	compelling state interest in protecting the lives of unborn
	children from the stage of viability, and neither state interest is
	intended to replace the other; and
	(4)  restricting elective abortions at or later than 20
	weeks post-fertilization, as provided by this Act, does not impose
	an undue burden or a substantial obstacle on a woman's ability to
	have an abortion because:
	(A)  the woman has adequate time to decide whether
	to have an abortion in the first 20 weeks after fertilization; and
	(B)  this Act does not apply to abortions that are
	necessary to avert the death or substantial and irreversible
	physical impairment of a major bodily function of the pregnant
	woman or abortions that are performed on unborn children with
	severe fetal abnormalities.
	(b)  The legislature intends that every application of this
	statute to every individual woman shall be severable from each
	other. In the unexpected event that the application of this statute
	is found to impose an impermissible undue burden on any pregnant
	woman or group of pregnant women, the application of the statute to
	those women shall be severed from the remaining applications of the
	statute that do not impose an undue burden, and those remaining
	applications shall remain in force and unaffected, consistent with
	Section 10 of this Act.
	SECTION 2.  Subchapter A, Chapter 171, Health and Safety
	Code, is amended by adding Section 171.0031 to read as follows:
	Sec. 171.0031.  REQUIREMENTS OF PHYSICIAN; OFFENSE. (a)  A
	physician performing or inducing an abortion:
	(1)  must, on the date the abortion is performed or
	induced, have active admitting privileges at a hospital that:
	(A)  is located not further than 30 miles from the
	location at which the abortion is performed or induced; and
	(B)  provides obstetrical or gynecological health
	care services; and
	(2)  shall provide the pregnant woman with:
	(A)  a telephone number by which the pregnant
	woman may reach the physician, or other health care personnel
	employed by the physician or by the facility at which the abortion
	was performed or induced with access to the woman's relevant
	medical records, 24 hours a day to request assistance for any
	complications that arise from the performance or induction of the
	abortion or ask health-related questions regarding the abortion;
	and
	(B)  the name and telephone number of the nearest
	hospital to the home of the pregnant woman at which an emergency
	arising from the abortion would be treated.
	(b)  A physician who violates Subsection (a) commits an
	offense. An offense under this section is a Class A misdemeanor
	punishable by a fine only, not to exceed $4,000.
	SECTION 3.  Chapter 171, Health and Safety Code, is amended
	by adding Subchapters C and D to read as follows:
	SUBCHAPTER C.  ABORTION PROHIBITED AT OR AFTER 20 WEEKS
	POST-FERTILIZATION
	Sec. 171.041.  SHORT TITLE. This subchapter may be cited as
	the Preborn Pain Act.
	Sec. 171.042.  DEFINITIONS. In this subchapter:
	(1)  "Post-fertilization age" means the age of the
	unborn child as calculated from the fusion of a human spermatozoon
	with a human ovum.
	(2)  "Severe fetal abnormality" has the meaning
	assigned by Section 285.202.
	Sec. 171.043.  DETERMINATION OF POST-FERTILIZATION AGE
	REQUIRED. Except as otherwise provided by Section 171.046, a
	physician may not perform or induce or attempt to perform or induce
	an abortion without, prior to the procedure:
	(1)  making a determination of the probable
	post-fertilization age of the unborn child; or
	(2)  possessing and relying on a determination of the
	probable post-fertilization age of the unborn child made by another
	physician.
	Sec. 171.044.  ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS
	POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by
	Section 171.046, a person may not perform or induce or attempt to
	perform or induce an abortion on a woman if it has been determined,
	by the physician performing, inducing, or attempting to perform or
	induce the abortion or by another physician on whose determination
	that physician relies, that the probable post-fertilization age of
	the unborn child is 20 or more weeks.
	Sec. 171.045.  METHOD OF ABORTION. (a)  This section
	applies only to an abortion authorized under Section 171.046(a)(1)
	or (2) in which:
	(1)  the probable post-fertilization age of the unborn
	child is 20 or more weeks; or
	(2)  the probable post-fertilization age of the unborn
	child has not been determined but could reasonably be 20 or more
	weeks.
	(b)  Except as otherwise provided by Section 171.046(a)(3),
	a physician performing an abortion under Subsection (a) shall
	terminate the pregnancy in the manner that, in the physician's
	reasonable medical judgment, provides the best opportunity for the
	unborn child to survive.
	Sec. 171.046.  EXCEPTIONS. (a)  The prohibitions and
	requirements under Sections 171.043, 171.044, and 171.045(b) do not
	apply to an abortion performed if there exists a condition that, in
	the physician's reasonable medical judgment, so complicates the
	medical condition of the woman that, to avert the woman's death or a
	serious risk of substantial and irreversible physical impairment of
	a major bodily function, other than a psychological condition, it
	necessitates, as applicable:
	(1)  the immediate abortion of her pregnancy without
	the delay necessary to determine the probable post-fertilization
	age of the unborn child;
	(2)  the abortion of her pregnancy even though the
	post-fertilization age of the unborn child is 20 or more weeks; or
	(3)  the use of a method of abortion other than a method
	described by Section 171.045(b).
	(b)  A physician may not take an action authorized under
	Subsection (a) if the risk of death or a substantial and
	irreversible physical impairment of a major bodily function arises
	from a claim or diagnosis that the woman will engage in conduct that
	may result in her death or in substantial and irreversible physical
	impairment of a major bodily function.
	(c)  The prohibitions and requirements under Sections
	171.043, 171.044, and 171.045(b) do not apply to an abortion
	performed on an unborn child who has a severe fetal abnormality.
	Sec. 171.047.  PROTECTION OF PRIVACY IN COURT PROCEEDINGS.
	(a)  Except as otherwise provided by this section, in a civil or
	criminal proceeding or action involving an act prohibited under
	this subchapter, the identity of the woman on whom an abortion has
	been performed or induced or attempted to be performed or induced is
	not subject to public disclosure if the woman does not give consent
	to disclosure.
	(b)  Unless the court makes a ruling under Subsection (c) to
	allow disclosure of the woman's identity, the court shall issue
	orders to the parties, witnesses, and counsel and shall direct the
	sealing of the record and exclusion of individuals from courtrooms
	or hearing rooms to the extent necessary to protect the woman's
	identity from public disclosure.
	(c)  A court may order the disclosure of information that is
	confidential under this section if:
	(1)  a motion is filed with the court requesting
	release of the information and a hearing on that request;
	(2)  notice of the hearing is served on each interested
	party; and
	(3)  the court determines after the hearing and an in
	camera review that disclosure is essential to the administration of
	justice and there is no reasonable alternative to disclosure.
	Sec. 171.048.  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.
	SUBCHAPTER D.  ABORTION-INDUCING DRUGS
	Sec. 171.061.  DEFINITIONS. In this subchapter:
	(1)  "Abortion" means the act of using, administering,
	prescribing, or otherwise providing an instrument, a drug, a
	medicine, or any other substance, device, or means with the intent
	to terminate a clinically diagnosable pregnancy of a woman and with
	knowledge that the termination by those means will, with reasonable
	likelihood, cause the death of the woman's unborn child. An act is
	not an abortion if the act is done with the intent to:
	(A)  save the life or preserve the health of an
	unborn child;
	(B)  remove a dead, unborn child whose death was
	caused by spontaneous abortion;
	(C)  remove an ectopic pregnancy; or
	(D)  treat a maternal disease or illness for which
	a prescribed drug, medicine, or other substance is indicated.
	(2)  "Abortion-inducing drug" means a drug, a medicine,
	or any other substance, including a regimen of two or more drugs,
	medicines, or substances, prescribed, dispensed, or administered
	with the intent of terminating a clinically diagnosable pregnancy
	of a woman and with knowledge that the termination will, with
	reasonable likelihood, cause the death of the woman's unborn child.
	The term includes off-label use of drugs, medicines, or other
	substances known to have abortion-inducing properties that are
	prescribed, dispensed, or administered with the intent of causing
	an abortion, including the Mifeprex regimen. The term does not
	include a drug, medicine, or other substance that may be known to
	cause an abortion but is prescribed, dispensed, or administered for
	other medical reasons.
	(3)  "Final printed label" or "FPL" means the
	informational document approved by the United States Food and Drug
	Administration for an abortion-inducing drug that:
	(A)  outlines the protocol authorized by that
	agency and agreed to by the drug company applying for authorization
	of the drug by that agency; and
	(B)  delineates how a drug is to be used according
	to approval by that agency.
	(4)  "Gestational age" means the amount of time that
	has elapsed since the first day of a woman's last menstrual period.
	(5)  "Medical abortion" means the administration or use
	of an abortion-inducing drug to induce an abortion.
	(6)  "Mifeprex regimen," "RU-486 regimen," or "RU-486"
	means the abortion-inducing drug regimen approved by the United
	States Food and Drug Administration that consists of administering
	mifepristone and misoprostol.
	(7)  "Physician" means an individual who is licensed to
	practice medicine in this state, including a medical doctor and a
	doctor of osteopathic medicine.
	(8)  "Pregnant" means the female reproductive
	condition of having an unborn child in a woman's uterus.
	(9)  "Unborn child" means an offspring of human beings
	from conception until birth.
	Sec. 171.062.  ENFORCEMENT BY TEXAS MEDICAL BOARD.
	Notwithstanding Section 171.005, the Texas Medical Board shall
	enforce this subchapter.
	Sec. 171.063.  DISTRIBUTION OF ABORTION-INDUCING DRUG.
	(a)  A person may not knowingly give, sell, dispense, administer,
	provide, or prescribe an abortion-inducing drug to a pregnant woman
	for the purpose of inducing an abortion in the pregnant woman or
	enabling another person to induce an abortion in the pregnant woman
	unless:
	(1)  the person who gives, sells, dispenses,
	administers, provides, or prescribes the abortion-inducing drug is
	a physician; and
	(2)  except as otherwise provided by Subsection (b),
	the provision, prescription, or administration of the
	abortion-inducing drug satisfies the protocol tested and
	authorized by the United States Food and Drug Administration as
	outlined in the final printed label of the abortion-inducing drug.
	(b)  A person may provide, prescribe, or administer the
	abortion-inducing drug in the dosage amount prescribed by the
	clinical management guidelines defined by the American Congress of
	Obstetricians and Gynecologists Practice Bulletin as those
	guidelines existed on January 1, 2013.
	(c)  Before the physician gives, sells, dispenses,
	administers, provides, or prescribes an abortion-inducing drug,
	the physician must examine the pregnant woman and document, in the
	woman's medical record, the gestational age and intrauterine
	location of the pregnancy.
	(d)  The physician who gives, sells, dispenses, administers,
	provides, or prescribes an abortion-inducing drug shall provide the
	pregnant woman with:
	(1)  a copy of the final printed label of that
	abortion-inducing drug; and
	(2)  a telephone number by which the pregnant woman may
	reach the physician, or other health care personnel employed by the
	physician or by the facility at which the abortion was performed
	with access to the woman's relevant medical records, 24 hours a day
	to request assistance for any complications that arise from the
	administration or use of the drug or ask health-related questions
	regarding the administration or use of the drug.
	(e)  The physician who gives, sells, dispenses, administers,
	provides, or prescribes the abortion-inducing drug, or the
	physician's agent, must schedule a follow-up visit for the woman to
	occur not more than 14 days after the administration or use of the
	drug. At the follow-up visit, the physician must:
	(1)  confirm that the pregnancy is completely
	terminated; and
	(2)  assess the degree of bleeding.
	(f)  The physician who gives, sells, dispenses, administers,
	provides, or prescribes the abortion-inducing drug, or the
	physician's agent, shall make a reasonable effort to ensure that
	the woman returns for the scheduled follow-up visit under
	Subsection (e). The physician or the physician's agent shall
	document a brief description of any effort made to comply with this
	subsection, including the date, time, and name of the person making
	the effort, in the woman's medical record.
	(g)  If a physician gives, sells, dispenses, administers,
	provides, or prescribes an abortion-inducing drug to a pregnant
	woman for the purpose of inducing an abortion as authorized by this
	section and the physician knows that the woman experiences a
	serious adverse event, as defined by the MedWatch Reporting System,
	during or after the administration or use of the drug, the physician
	shall report the event to the United States Food and Drug
	Administration through the MedWatch Reporting System not later than
	the third day after the date the physician learns that the event
	occurred.
	Sec. 171.064.  ADMINISTRATIVE PENALTY. (a)  The Texas
	Medical Board may take disciplinary action under Chapter 164,
	Occupations Code, or assess an administrative penalty under
	Subchapter A, Chapter 165, Occupations Code, against a person who
	violates Section 171.063.
	(b)  A penalty may not be assessed under this section against
	a pregnant woman who receives a medical abortion.
	SECTION 4.  Section 245.010(a), Health and Safety Code, is
	amended to read as follows:
	(a)  The rules must contain minimum standards to protect the
	health and safety of a patient of an abortion facility and must
	contain provisions requiring compliance with the requirements of
	Subchapter B, Chapter 171. On and after September 1, 2014, the
	minimum standards for an abortion facility must be equivalent to
	the minimum standards adopted under Section 243.010 for ambulatory
	surgical centers.
	SECTION 5.  Section 245.011(c), Health and Safety Code, is
	amended to read as follows:
	(c)  The report must include:
	(1)  whether the abortion facility at which the
	abortion is performed is licensed under this chapter;
	(2)  the patient's year of birth, race, marital status,
	and state and county of residence;
	(3)  the type of abortion procedure;
	(4)  the date the abortion was performed;
	(5)  whether the patient survived the abortion, and if
	the patient did not survive, the cause of death;
	(6)  the probable post-fertilization age of the unborn
	child [period of gestation] based on the best medical judgment of
	the attending physician at the time of the procedure;
	(7)  the date, if known, of the patient's last menstrual
	cycle;
	(8)  the number of previous live births of the patient;
	and
	(9)  the number of previous induced abortions of the
	patient.
	SECTION 6.  Section 164.052(a), Occupations Code, 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; [or]
	(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; or
	(20)  performs or induces or attempts to perform or
	induce an abortion in violation of Subchapter C, Chapter 171,
	Health and Safety Code.
	SECTION 7.  Section 164.055(b), Occupations Code, 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, Chapter 171, Health and Safety Code.
	SECTION 8.  Effective September 1, 2014, Section 245.010(c),
	Health and Safety Code, is repealed.
	SECTION 9.  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 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 10.  (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 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 C, Chapter 171, Health and Safety Code, as
	added by this Act, prohibiting abortions performed on an unborn
	child 20 or more weeks after fertilization 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 constitutionally applied.
	(d)  If any provision of this Act is found by any court to be
	unconstitutionally vague, then the applications of that provision
	that do not present constitutional vagueness problems shall be
	severed and remain in force.
	SECTION 11.  (a)  The executive commissioner of the Health
	and Human Services Commission shall adopt the standards required by
	Section 245.010, Health and Safety Code, as amended by this Act, not
	later than January 1, 2014.
	(b)  A facility licensed under Chapter 245, Health and Safety
	Code, is not required to comply with the standards adopted under
	Section 245.010, Health and Safety Code, as amended by this Act,
	before September 1, 2014.
	SECTION 12.  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.