HB2 Texas

H.B.ANo.A2AN ACTrelating to the regulation of abortion procedures, providers, andfacilities; providing penalties.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:SECTIONA1.AA(a)AAThe findings indicate that:(1)AAsubstantial medical evidence recognizes that anunborn child is capable of experiencing pain by not later than 20weeks after fertilization;(2)AAthe state has a compelling state interest inprotecting the lives of unborn children from the stage at whichsubstantial medical evidence indicates that these children arecapable of feeling pain;(3)AAthe compelling state interest in protecting thelives of unborn children from the stage at which substantialmedical evidence indicates that an unborn child is capable offeeling pain is intended to be separate from and independent of thecompelling state interest in protecting the lives of unbornchildren from the stage of viability, and neither state interest isintended to replace the other; and(4)AArestricting elective abortions at or later than 20weeks post-fertilization, as provided by this Act, does not imposean undue burden or a substantial obstacle on a woman’s ability tohave an abortion because:(A)AAthe woman has adequate time to decide whether 1234567891011121314151617181920212223241

to have an abortion in the first 20 weeks after fertilization; and(B)AAthis Act does not apply to abortions that arenecessary to avert the death or substantial and irreversiblephysical impairment of a major bodily function of the pregnantwoman or abortions that are performed on unborn children withsevere fetal abnormalities.(b)AAThe legislature intends that every application of thisstatute to every individual woman shall be severable from eachother. In the unexpected event that the application of this statuteis found to impose an impermissible undue burden on any pregnantwoman or group of pregnant women, the application of the statute tothose women shall be severed from the remaining applications of thestatute that do not impose an undue burden, and those remainingapplications shall remain in force and unaffected, consistent withSection 10 of this Act.SECTIONA2.AASubchapter A, Chapter 171, Health and SafetyCode, is amended by adding Section 171.0031 to read as follows:Sec.A171.0031.AAREQUIREMENTS OF PHYSICIAN; OFFENSE. (a)AAAphysician performing or inducing an abortion:(1)AAmust, on the date the abortion is performed orinduced, have active admitting privileges at a hospital that:(A)AAis located not further than 30 miles from thelocation at which the abortion is performed or induced; and(B)AAprovides obstetrical or gynecological healthcare services; and(2)AAshall provide the pregnant woman with:(A)AAa telephone number by which the pregnant 123456789101112131415161718192021222324252627H.B.ANo.A22

woman may reach the physician, or other health care personnelemployed by the physician or by the facility at which the abortionwas performed or induced with access to the woman’s relevantmedical records, 24 hours a day to request assistance for anycomplications that arise from the performance or induction of theabortion or ask health-related questions regarding the abortion;and(B)AAthe name and telephone number of the nearesthospital to the home of the pregnant woman at which an emergencyarising from the abortion would be treated.(b)AAA physician who violates Subsection (a) commits anoffense. An offense under this section is a Class A misdemeanorpunishable by a fine only, not to exceed $4,000.SECTIONA3.AAChapter 171, Health and Safety Code, is amendedby adding Subchapters C and D to read as follows:SUBCHAPTERAC.AAABORTION PROHIBITED AT OR AFTER 20 WEEKSPOST-FERTILIZATIONSec.A171.041.AASHORT TITLE. This subchapter may be cited asthe Preborn Pain Act.Sec.A171.042.AADEFINITIONS. In this subchapter:(1)AA"Post-fertilization age" means the age of theunborn child as calculated from the fusion of a human spermatozoonwith a human ovum.(2)AA"Severe fetal abnormality" has the meaningassigned by Section 285.202.Sec.A171.043.AADETERMINATION OF POST-FERTILIZATION AGEREQUIRED. Except as otherwise provided by Section 171.046, a 123456789101112131415161718192021222324252627H.B.ANo.A23

physician may not perform or induce or attempt to perform or inducean abortion without, prior to the procedure:(1)AAmaking a determination of the probablepost-fertilization age of the unborn child; or(2)AApossessing and relying on a determination of theprobable post-fertilization age of the unborn child made by anotherphysician.Sec.A171.044.AAABORTION OF UNBORN CHILD OF 20 OR MORE WEEKSPOST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided bySection 171.046, a person may not perform or induce or attempt toperform or induce an abortion on a woman if it has been determined,by the physician performing, inducing, or attempting to perform orinduce the abortion or by another physician on whose determinationthat physician relies, that the probable post-fertilization age ofthe unborn child is 20 or more weeks.Sec.A171.045.AAMETHOD OF ABORTION. (a)AAThis sectionapplies only to an abortion authorized under Section 171.046(a)(1)or (2) in which:(1)AAthe probable post-fertilization age of the unbornchild is 20 or more weeks; or(2)AAthe probable post-fertilization age of the unbornchild has not been determined but could reasonably be 20 or moreweeks.(b)AAExcept as otherwise provided by Section 171.046(a)(3),a physician performing an abortion under Subsection (a) shallterminate the pregnancy in the manner that, in the physician’sreasonable medical judgment, provides the best opportunity for the 123456789101112131415161718192021222324252627H.B.ANo.A24

unborn child to survive.Sec.A171.046.AAEXCEPTIONS. (a)AAThe prohibitions andrequirements under Sections 171.043, 171.044, and 171.045(b) do notapply to an abortion performed if there exists a condition that, inthe physician’s reasonable medical judgment, so complicates themedical condition of the woman that, to avert the woman’s death or aserious risk of substantial and irreversible physical impairment ofa major bodily function, other than a psychological condition, itnecessitates, as applicable:(1)AAthe immediate abortion of her pregnancy withoutthe delay necessary to determine the probable post-fertilizationage of the unborn child;(2)AAthe abortion of her pregnancy even though thepost-fertilization age of the unborn child is 20 or more weeks; or(3)AAthe use of a method of abortion other than a methoddescribed by Section 171.045(b).(b)AAA physician may not take an action authorized underSubsection (a) if the risk of death or a substantial andirreversible physical impairment of a major bodily function arisesfrom a claim or diagnosis that the woman will engage in conduct thatmay result in her death or in substantial and irreversible physicalimpairment of a major bodily function.(c)AAThe prohibitions and requirements under Sections171.043, 171.044, and 171.045(b) do not apply to an abortionperformed on an unborn child who has a severe fetal abnormality.Sec.A171.047.AAPROTECTION OF PRIVACY IN COURT PROCEEDINGS.(a)AAExcept as otherwise provided by this section, in a civil or 123456789101112131415161718192021222324252627H.B.ANo.A25

criminal proceeding or action involving an act prohibited underthis subchapter, the identity of the woman on whom an abortion hasbeen performed or induced or attempted to be performed or induced isnot subject to public disclosure if the woman does not give consentto disclosure.(b)AAUnless the court makes a ruling under Subsection (c) toallow disclosure of the woman’s identity, the court shall issueorders to the parties, witnesses, and counsel and shall direct thesealing of the record and exclusion of individuals from courtroomsor hearing rooms to the extent necessary to protect the woman’sidentity from public disclosure.(c)AAA court may order the disclosure of information that isconfidential under this section if:(1)AAa motion is filed with the court requestingrelease of the information and a hearing on that request;(2)AAnotice of the hearing is served on each interestedparty; and(3)AAthe court determines after the hearing and an incamera review that disclosure is essential to the administration ofjustice and there is no reasonable alternative to disclosure.Sec.A171.048.AACONSTRUCTION OF SUBCHAPTER. (a)AAThissubchapter shall be construed, as a matter of state law, to beenforceable up to but no further than the maximum possible extentconsistent with federal constitutional requirements, even if thatconstruction is not readily apparent, as such constructions areauthorized only to the extent necessary to save the subchapter fromjudicial invalidation. Judicial reformation of statutory language 123456789101112131415161718192021222324252627H.B.ANo.A26

is explicitly authorized only to the extent necessary to save thestatutory provision from invalidity.(b)AAIf any court determines that a provision of thissubchapter is unconstitutionally vague, the court shall interpretthe provision, as a matter of state law, to avoid the vaguenessproblem and shall enforce the provision to the maximum possibleextent. If a federal court finds any provision of this subchapteror its application to any person, group of persons, orcircumstances to be unconstitutionally vague and declines to imposethe saving construction described by this subsection, the SupremeCourt of Texas shall provide an authoritative construction of theobjectionable statutory provisions that avoids the constitutionalproblems while enforcing the statute’s restrictions to the maximumpossible extent, and shall agree to answer any question certifiedfrom a federal appellate court regarding the statute.(c)AAA state executive or administrative official may notdecline to enforce this subchapter, or adopt a construction of thissubchapter in a way that narrows its applicability, based on theofficial’s own beliefs about what the state or federal constitutionrequires, unless the official is enjoined by a state or federalcourt from enforcing this subchapter.(d)AAThis subchapter may not be construed to authorize theprosecution of or a cause of action to be brought against a woman onwhom an abortion is performed or induced or attempted to beperformed or induced in violation of this subchapter.SUBCHAPTERAD.AAABORTION-INDUCING DRUGSSec.A171.061.AADEFINITIONS. In this subchapter: 123456789101112131415161718192021222324252627H.B.ANo.A27

(1)AA"Abortion" means the act of using, administering,prescribing, or otherwise providing an instrument, a drug, amedicine, or any other substance, device, or means with the intentto terminate a clinically diagnosable pregnancy of a woman and withknowledge that the termination by those means will, with reasonablelikelihood, cause the death of the woman’s unborn child. An act isnot an abortion if the act is done with the intent to:(A)AAsave the life or preserve the health of anunborn child;(B)AAremove a dead, unborn child whose death wascaused by spontaneous abortion;(C)AAremove an ectopic pregnancy; or(D)AAtreat a maternal disease or illness for whicha prescribed drug, medicine, or other substance is indicated.(2)AA"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 administeredwith the intent of terminating a clinically diagnosable pregnancyof a woman and with knowledge that the termination will, withreasonable likelihood, cause the death of the woman’s unborn child.The term includes off-label use of drugs, medicines, or othersubstances known to have abortion-inducing properties that areprescribed, dispensed, or administered with the intent of causingan abortion, including the Mifeprex regimen. The term does notinclude a drug, medicine, or other substance that may be known tocause an abortion but is prescribed, dispensed, or administered forother medical reasons. 123456789101112131415161718192021222324252627H.B.ANo.A28

(3)AA"Final printed label" or "FPL" means theinformational document approved by the United States Food and DrugAdministration for an abortion-inducing drug that:(A)AAoutlines the protocol authorized by thatagency and agreed to by the drug company applying for authorizationof the drug by that agency; and(B)AAdelineates how a drug is to be used accordingto approval by that agency.(4)AA"Gestational age" means the amount of time thathas elapsed since the first day of a woman’s last menstrual period.(5)AA"Medical abortion" means the administration or useof an abortion-inducing drug to induce an abortion.(6)AA"Mifeprex regimen," "RU-486 regimen," or "RU-486"means the abortion-inducing drug regimen approved by the UnitedStates Food and Drug Administration that consists of administeringmifepristone and misoprostol.(7)AA"Physician" means an individual who is licensed topractice medicine in this state, including a medical doctor and adoctor of osteopathic medicine.(8)AA"Pregnant" means the female reproductivecondition of having an unborn child in a woman’s uterus.(9)AA"Unborn child" means an offspring of human beingsfrom conception until birth.Sec.A171.062.AAENFORCEMENT BY TEXAS MEDICAL BOARD.Notwithstanding Section 171.005, the Texas Medical Board shallenforce this subchapter.Sec.A171.063.AADISTRIBUTION OF ABORTION-INDUCING DRUG. 123456789101112131415161718192021222324252627H.B.ANo.A29

(a)AAA person may not knowingly give, sell, dispense, administer,provide, or prescribe an abortion-inducing drug to a pregnant womanfor the purpose of inducing an abortion in the pregnant woman orenabling another person to induce an abortion in the pregnant womanunless:(1)AAthe person who gives, sells, dispenses,administers, provides, or prescribes the abortion-inducing drug isa physician; and(2)AAexcept as otherwise provided by Subsection (b),the provision, prescription, or administration of theabortion-inducing drug satisfies the protocol tested andauthorized by the United States Food and Drug Administration asoutlined in the final printed label of the abortion-inducing drug.(b)AAA person may provide, prescribe, or administer theabortion-inducing drug in the dosage amount prescribed by theclinical management guidelines defined by the American Congress ofObstetricians and Gynecologists Practice Bulletin as thoseguidelines existed on January 1, 2013.(c)AABefore the physician gives, sells, dispenses,administers, provides, or prescribes an abortion-inducing drug,the physician must examine the pregnant woman and document, in thewoman’s medical record, the gestational age and intrauterinelocation of the pregnancy.(d)AAThe physician who gives, sells, dispenses, administers,provides, or prescribes an abortion-inducing drug shall provide thepregnant woman with:(1)AAa copy of the final printed label of that 123456789101112131415161718192021222324252627H.B.ANo.A210

abortion-inducing drug; and(2)AAa telephone number by which the pregnant woman mayreach the physician, or other health care personnel employed by thephysician or by the facility at which the abortion was performedwith access to the woman’s relevant medical records, 24 hours a dayto request assistance for any complications that arise from theadministration or use of the drug or ask health-related questionsregarding the administration or use of the drug.(e)AAThe physician who gives, sells, dispenses, administers,provides, or prescribes the abortion-inducing drug, or thephysician’s agent, must schedule a follow-up visit for the woman tooccur not more than 14 days after the administration or use of thedrug. At the follow-up visit, the physician must:(1)AAconfirm that the pregnancy is completelyterminated; and(2)AAassess the degree of bleeding.(f)AAThe physician who gives, sells, dispenses, administers,provides, or prescribes the abortion-inducing drug, or thephysician’s agent, shall make a reasonable effort to ensure thatthe woman returns for the scheduled follow-up visit underSubsection (e). The physician or the physician’s agent shalldocument a brief description of any effort made to comply with thissubsection, including the date, time, and name of the person makingthe effort, in the woman’s medical record.(g)AAIf a physician gives, sells, dispenses, administers,provides, or prescribes an abortion-inducing drug to a pregnantwoman for the purpose of inducing an abortion as authorized by this 123456789101112131415161718192021222324252627H.B.ANo.A211

section and the physician knows that the woman experiences aserious adverse event, as defined by the MedWatch Reporting System,during or after the administration or use of the drug, the physicianshall report the event to the United States Food and DrugAdministration through the MedWatch Reporting System not later thanthe third day after the date the physician learns that the eventoccurred.Sec.A171.064.AAADMINISTRATIVE PENALTY. (a)AAThe TexasMedical Board may take disciplinary action under Chapter 164,Occupations Code, or assess an administrative penalty underSubchapter A, Chapter 165, Occupations Code, against a person whoviolates Section 171.063.(b)AAA penalty may not be assessed under this section againsta pregnant woman who receives a medical abortion.SECTIONA4.AASection 245.010(a), Health and Safety Code, isamended to read as follows:(a)AAThe rules must contain minimum standards to protect thehealth and safety of a patient of an abortion facility and mustcontain provisions requiring compliance with the requirements ofSubchapter B, Chapter 171.On and after September 1, 2014, theminimum standards for an abortion facility must be equivalent tothe minimum standards adopted under Section 243.010 for ambulatorysurgical centers.SECTIONA5.AASection 245.011(c), Health and Safety Code, isamended to read as follows:(c)AAThe report must include:(1)AAwhether the abortion facility at which the 123456789101112131415161718192021222324252627H.B.ANo.A212

abortion is performed is licensed under this chapter;(2)AAthe patient’s year of birth, race, marital status,and state and county of residence;(3)AAthe type of abortion procedure;(4)AAthe date the abortion was performed;(5)AAwhether the patient survived the abortion, and ifthe patient did not survive, the cause of death;(6)AAtheprobable post-fertilization age of the unbornchild [period of gestation] based on the best medical judgment ofthe attending physician at the time of the procedure;(7)AAthe date, if known, of the patient’s last menstrualcycle;(8)AAthe number of previous live births of the patient;and(9)AAthe number of previous induced abortions of thepatient.SECTIONA6.AASection 164.052(a), Occupations Code, is amendedto read as follows:(a)AAA physician or an applicant for a license to practicemedicine commits a prohibited practice if that person:(1)AAsubmits to the board a false or misleadingstatement, document, or certificate in an application for alicense;(2)AApresents to the board a license, certificate, ordiploma that was illegally or fraudulently obtained;(3)AAcommits fraud or deception in taking or passing anexamination; 123456789101112131415161718192021222324252627H.B.ANo.A213

(4)AAuses alcohol or drugs in an intemperate mannerthat, in the board’s opinion, could endanger a patient’s life;(5)AAcommits unprofessional or dishonorable conductthat is likely to deceive or defraud the public, as provided bySection 164.053, or injure the public;(6)AAuses an advertising statement that is false,misleading, or deceptive;(7)AAadvertises professional superiority or theperformance of professional service in a superior manner if thatadvertising is not readily subject to verification;(8)AApurchases, sells, barters, or uses, or offers topurchase, 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 alicense to practice medicine;(9)AAalters, with fraudulent intent, a medical license,certificate, or diploma, or a transcript of a medical license,certificate, or diploma;(10)AAuses a medical license, certificate, or diploma,or a transcript of a medical license, certificate, or diploma thathas been:(A)AAfraudulently purchased or issued;(B)AAcounterfeited; or(C)AAmaterially altered;(11)AAimpersonates or acts as proxy for another personin an examination required by this subtitle for a medical license;(12)AAengages in conduct that subverts or attempts to 123456789101112131415161718192021222324252627H.B.ANo.A214

subvert an examination process required by this subtitle for amedical license;(13)AAimpersonates a physician or permits another touse the person’s license or certificate to practice medicine inthis state;(14)AAdirectly or indirectly employs a person whoselicense to practice medicine has been suspended, canceled, orrevoked;(15)AAassociates in the practice of medicine with aperson:(A)AAwhose license to practice medicine has beensuspended, canceled, or revoked; or(B)AAwho has been convicted of the unlawfulpractice of medicine in this state or elsewhere;(16)AAperforms or procures a criminal abortion, aids orabets in the procuring of a criminal abortion, attempts to performor procure a criminal abortion, or attempts to aid or abet theperformance or procurement of a criminal abortion;(17)AAdirectly or indirectly aids or abets the practiceof medicine by a person, partnership, association, or corporationthat is not licensed to practice medicine by the board;(18)AAperforms an abortion on a woman who is pregnantwith a viable unborn child during the third trimester of thepregnancy unless:(A)AAthe abortion is necessary to prevent thedeath of the woman;(B)AAthe viable unborn child has a severe, 123456789101112131415161718192021222324252627H.B.ANo.A215

irreversible brain impairment; or(C)AAthe woman is diagnosed with a significantlikelihood of suffering imminent severe, irreversible brain damageor imminent severe, irreversible paralysis; [or](19)AAperforms an abortion on an unemancipated minorwithout the written consent of the child’s parent, managingconservator, or legal guardian or without a court order, asprovided by Section 33.003 or 33.004, Family Code, authorizing theminor to consent to the abortion, unless the physician concludesthat on the basis of the physician’s good faith clinical judgment, acondition exists that complicates the medical condition of thepregnant minor and necessitates the immediate abortion of herpregnancy to avert her death or to avoid a serious risk ofsubstantial impairment of a major bodily function and that there isinsufficient time to obtain the consent of the child’s parent,managing conservator, or legal guardian; or(20)AAperforms or induces or attempts to perform orinduce an abortion in violation of Subchapter C, Chapter 171,Health and Safety Code.SECTIONA7.AASection 164.055(b), Occupations Code, is amendedto read as follows:(b)AAThe sanctions provided by Subsection (a) are in additionto any other grounds for refusal to admit persons to examinationunder this subtitle or to issue a license or renew a license topractice medicine under this subtitle. The criminal penaltiesprovided by Section 165.152 do not apply to a violation of Section170.002or Subchapter C, Chapter 171, Health and Safety Code. 123456789101112131415161718192021222324252627H.B.ANo.A216

SECTIONA8.AAEffective September 1, 2014, Section 245.010(c),Health and Safety Code, is repealed.SECTIONA9.AAThis Act may not be construed to repeal, byimplication or otherwise, Section 164.052(a)(18), OccupationsCode, Section 170.002, Health and Safety Code, or any otherprovision of Texas law regulating or restricting abortion notspecifically addressed by this Act. An abortion that complies withthis Act but violates any other law is unlawful. An abortion thatcomplies with another state law but violates this Act is unlawful asprovided in this Act.SECTIONA10.AA(a)AAIf some or all of the provisions of thisAct are ever temporarily or permanently restrained or enjoined byjudicial order, all other provisions of Texas law regulating orrestricting abortion shall be enforced as though the restrained orenjoined provisions had not been adopted; provided, however, thatwhenever the temporary or permanent restraining order or injunctionis stayed or dissolved, or otherwise ceases to have effect, theprovisions shall have full force and effect.(b)AAMindful ofLeavitt v. Jane L., 518 U.S. 137 (1996), inwhich in the context of determining the severability of a statestatute regulating abortion the United States Supreme Court heldthat an explicit statement of legislative intent is controlling, itis the intent of the legislature that every provision, section,subsection, sentence, clause, phrase, or word in this Act, andevery application of the provisions in this Act, are severable fromeach other. If any application of any provision in this Act to anyperson, group of persons, or circumstances is found by a court to be 123456789101112131415161718192021222324252627H.B.ANo.A217

invalid, the remaining applications of that provision to all otherpersons and circumstances shall be severed and may not be affected.All constitutionally valid applications of this Act shall besevered from any applications that a court finds to be invalid,leaving the valid applications in force, because it is thelegislature’s intent and priority that the valid applications beallowed to stand alone. Even if a reviewing court finds a provisionof this Act to impose an undue burden in a large or substantialfraction of relevant cases, the applications that do not present anundue burden shall be severed from the remaining provisions andshall remain in force, and shall be treated as if the legislaturehad enacted a statute limited to the persons, group of persons, orcircumstances for which the statute’s application does not presentan undue burden. The legislature further declares that it wouldhave passed this Act, and each provision, section, subsection,sentence, clause, phrase, or word, and all constitutionalapplications of this Act, irrespective of the fact that anyprovision, section, subsection, sentence, clause, phrase, or word,or applications of this Act, were to be declared unconstitutionalor to represent an undue burden.(c)AAIf Subchapter C, Chapter 171, Health and Safety Code, asadded by this Act, prohibiting abortions performed on an unbornchild 20 or more weeks after fertilization is found by any court tobe invalid or to impose an undue burden as applied to any person,group of persons, or circumstances, the prohibition shall apply tothat person or group of persons or circumstances on the earliestdate on which the subchapter can be constitutionally applied. 123456789101112131415161718192021222324252627H.B.ANo.A218

(d)AAIf any provision of this Act is found by any court to beunconstitutionally vague, then the applications of that provisionthat do not present constitutional vagueness problems shall besevered and remain in force.SECTIONA11.AA(a)AAThe executive commissioner of the Healthand Human Services Commission shall adopt the standards required bySection 245.010, Health and Safety Code, as amended by this Act, notlater than January 1, 2014.(b)AAA facility licensed under Chapter 245, Health and SafetyCode, is not required to comply with the standards adopted underSection 245.010, Health and Safety Code, as amended by this Act,before September 1, 2014.SECTIONA12.AAThis Act takes effect immediately if itreceives a vote of two-thirds of all the members elected to eachhouse, as provided by Section 39, Article III, Texas Constitution.If this Act does not receive the vote necessary for immediateeffect, this Act takes effect on the 91st day after the last day ofthe legislative session. 123456789101112131415161718H.B.ANo.A219

______________________________ ______________________________AAAAPresident of the Senate Speaker of the HouseAAAAAAI certify that H.B. No. 2 was passed by the House on July 10,2013, by the following vote:AAYeas 96, Nays 49, 1 present, notvoting.______________________________Chief Clerk of the HouseAAAI certify that H.B. No. 2 was passed by the Senate on July 12,2013, by the following vote:AAYeas 19, Nays 11.______________________________Secretary of the SenateAAAAAPPROVED:AA_____________________AAAAAAAAAAAAAAAAAAAADateAAAAAAAAAAAAAAAAAAAAA_____________________AAAAAAAAAAAAAAAAAAGovernorAAAAAAAH.B.ANo.A220

http://www.legis.state.tx.us/tlodocs/832/billtext/pdf/HB00002F.pdf#navpanes=0