A BILL TO BE ENTITLED

AN ACT

relating to a prohibition on abortion after detection of a fetal

heartbeat; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The legislature finds, according to contemporary

medical research, that:

(1) as many as 30 percent of natural pregnancies end in

spontaneous miscarriage;

(2) less than five percent of all natural pregnancies

end in spontaneous miscarriage after detection of fetal cardiac

activity;

(3) over 90 percent of in vitro pregnancies survive

the first trimester if cardiac activity is detected in the

gestational sac;

(4) nearly 90 percent of in vitro pregnancies do not

survive the first trimester if cardiac activity is not detected in

the gestational sac;

(5) fetal heartbeat, therefore, has become a key

medical predictor that an unborn child will reach live birth;

(6) cardiac activity begins at a biologically

identifiable moment in time, normally when the fetal heart is

formed in the gestational sac;

(7) the state has legitimate interests from the outset

of the pregnancy in protecting the health of the woman and the life

of an unborn child who may be born; and

(8) to make an informed choice about whether to

continue her pregnancy, the pregnant woman has a legitimate

interest in knowing the likelihood of the fetus surviving to

full-term birth based on the presence of cardiac activity.

SECTION 2. Chapter 171, Health and Safety Code, is amended

by adding Subchapter E to read as follows:

SUBCHAPTER E. ABORTION AFTER DETECTION OF FETAL HEARTBEAT

Sec. 171.101. FINDING BY ATTORNEY GENERAL ON ENFORCEABILITY

AND APPLICABILITY OF CERTAIN LAW. (a) This subchapter is not

enforceable until the 91st day after the date of publication in the

Texas Register of a finding of fact made by the attorney general

that:

(1) the United States Supreme Court has issued a

decision overruling Roe v. Wade , 410 U.S. 113 (1973);

(2) any other state or federal court has issued an

order or judgment restoring, expanding, or clarifying the authority

of states to wholly or partly prohibit or regulate abortion under

the United States Constitution; or

(3) an amendment to the United States Constitution

that restores, expands, or clarifies the authority of states to

wholly or partly prohibit or regulate abortion has been adopted.

(b) The attorney general shall monitor federal

constitutional law and state and federal court cases related to

abortions in this state to determine whether a finding is required

under Subsection (a). The attorney general shall make the finding

required under Subsection (a) not later than the 30th day after the

date the attorney general determines the finding is required.

(c) On the 91st day after the publication date of the

finding described by Subsection (a), Subchapter C has no effect.

(d) This subchapter applies only to an offense committed on

or after the date described by Subsection (c). For purposes of this

subchapter, an offense is committed before that date if any element

of the offense occurs before that date. An offense committed before

that date is governed by the law in effect on the date the offense

was committed, and the former law is continued in effect for that

purpose.

Sec. 171.102. DEFINITIONS. In this subchapter:

(1) "Conception" means fertilization.

(2) "Contraceptive" means a drug, device, or chemical

that prevents conception.

(3) "Fetal heartbeat" means cardiac activity or the

steady and repetitive rhythmic contraction of the fetal heart

within the gestational sac.

(4) "Fetus" means the human offspring developing

during pregnancy from the moment of conception and includes the

embryonic stage of development.

(5) "Gestational age" has the meaning assigned by

Section 171.061.

(6) "Intrauterine pregnancy" means a pregnancy in

which the fetus is attached to the placenta within the uterus of the

pregnant woman.

(7) "Medical emergency" means a condition that in a

physician's good faith medical judgment, based on the facts known

to the physician at that time, so endangers the life of the pregnant

woman, or so poses a serious risk of complicating the pregnancy of

the woman by directly or indirectly causing the substantial and

irreversible impairment of a major bodily function of the pregnant

woman, as to necessitate the immediate performance or inducement of

an abortion.

(8) "Physician" means an individual licensed to

practice medicine in this state.

(9) "Pregnancy" means the human female reproductive

condition that begins with fertilization, when the woman is

carrying the developing human offspring, and that is calculated

from the first day of the last menstrual period of the woman.

(10) "Spontaneous miscarriage" means the natural or

accidental termination of a pregnancy and the expulsion of the

fetus, typically caused by genetic defects in the fetus or physical

abnormalities in the pregnant woman.

(11) "Standard medical practice" means the degree of

skill, care, and diligence that a physician of the same medical

specialty would employ in like circumstances. As applied to the

method used to determine the presence of a fetal heartbeat for

purposes of Section 171.103, "standard medical practice" includes

employing the appropriate means of detection depending on the

estimated gestational age of the fetus and the condition of the

woman and her pregnancy.

(12) "Unborn child" has the meaning assigned by

Section 171.061.

Sec. 171.103. DETERMINATION OF DETECTABLE HEARTBEAT

REQUIRED. (a) Except as otherwise provided by Section 171.105, a

physician may not perform or induce or attempt to perform or induce

an abortion unless the physician has made a determination, in

accordance with Subsection (c) and standard medical practice, of

whether the unborn child has a detectable heartbeat.

(b) The physician who makes the determination on the

presence or absence of a fetal heartbeat shall record in the

pregnant woman's medical record:

(1) the estimated gestational age of the unborn child;

(2) the method used to test for the presence or absence

of a fetal heartbeat;

(3) the date and time of the test used to determine the

presence or absence of a fetal heartbeat; and

(4) the results of the test.

(c) The method of determining the presence or absence of a

fetal heartbeat must be consistent with the physician's good faith

understanding of standard medical practice in accordance with any

rules adopted under this subsection. The executive commissioner of

the Health and Human Services Commission may adopt rules specifying

the appropriate method used to test for the presence or absence of a

fetal heartbeat of an unborn child based on standard medical

practice.

Sec. 171.104. FAILURE TO DETERMINE EXISTENCE OF DETECTABLE

HEARTBEAT; OFFENSE. (a) Except as provided by Subsection (d), a

person may not knowingly perform or induce or attempt to perform or

induce an abortion on a pregnant woman before determining, in

accordance with Section 171.103, whether the unborn child has a

detectable heartbeat.

(b) A person who violates this section commits an offense.

An offense under this section is a misdemeanor punishable by a fine

not to exceed $10,000.

(c) A pregnant woman on whom an abortion is performed or

attempted in violation of this section may not be prosecuted under

this section or for attempting to commit or conspiracy to commit a

violation of this section.

(d) It is an exception to the application of this section

that a physician performing or inducing or attempting to perform or

induce an abortion believes that a medical emergency exists that

prevents compliance with Section 171.103.

Sec. 171.105. ABORTION OF UNBORN CHILD WITH DETECTABLE

HEARTBEAT PROHIBITED; OFFENSE. (a) Except as otherwise provided by

Subsection (d), a person may not knowingly perform or induce or

attempt to perform or induce an abortion on a pregnant woman with

the specific intent of causing or abetting the termination of the

life of the unborn child if it has been determined, in accordance

with Section 171.103, that the unborn child has a detectable

heartbeat.

(b) A person who violates this section commits an offense.

An offense under this section is a misdemeanor punishable by a fine

not to exceed $10,000. In this section, "intent" has the meaning

assigned by Section 6.03(a), Penal Code.

(c) A pregnant woman on whom an abortion is performed or

attempted in violation of this section may not be prosecuted under

this section or for attempting to commit or conspiracy to commit a

violation of this section.

(d) It is an exception to the application of this section

that a physician performing or inducing or attempting to perform or

induce an abortion believes that a medical emergency exists that

prevents compliance with Section 171.103.

Sec. 171.106. INFORMATION REQUIRED BEFORE ABORTION. (a)

This section applies only to an abortion authorized under Section

171.107.

(b) A physician may not perform or induce or attempt to

perform or induce an abortion on a pregnant woman if the unborn

child has a detectable heartbeat, as determined under Section

171.103, unless:

(1) the physician intending to perform or induce the

abortion informs the pregnant woman in writing that the unborn

child the pregnant woman is carrying has a fetal heartbeat;

(2) the physician provides to the pregnant woman

information, in accordance with any rules adopted under Subsection

(d) or, if no rules are adopted, to the best of the physician's

knowledge, on the statistical probability of bringing the unborn

child possessing a detectable fetal heartbeat to term based on the

gestational age of the unborn child;

(3) the pregnant woman signs a form acknowledging that

she has received information from the physician that the unborn

child the pregnant woman is carrying has a fetal heartbeat and that

the pregnant woman is aware of the statistical probability of

bringing the unborn child to term; and

(4) at least 24 hours have elapsed since the

completion of the requirements under Subdivisions (1), (2), and

(3).

(c) This section does not apply if the physician who intends

to perform or induce the abortion believes that a medical emergency

exists that prevents compliance with this section.

(d) The executive commissioner of the Health and Human

Services Commission may adopt rules that specify the information a

physician is required to provide to a pregnant woman under

Subsection (b)(2) regarding the statistical probability of

bringing an unborn child possessing a detectable heartbeat to term

based on the gestational age of the unborn child. The rules must be

based on available medical evidence.

(e) This section does not have the effect of repealing or

limiting any other statutory provision relating to consent for an

abortion.

Sec. 171.107. EXCEPTION; WRITTEN DECLARATION OF MEDICAL

EMERGENCY. (a) The prohibitions and requirements under Sections

171.103, 171.104, 171.105, and 171.106 do not apply to an abortion

performed or induced on a pregnant woman if, in the physician's

reasonable medical judgment, the abortion is designed or intended

to prevent the woman's death or prevent a serious risk of

substantial and irreversible impairment of a major bodily function

of the woman.

(b) A physician who performs or induces or attempts to

perform or induce an abortion because the physician believes a

medical emergency exists that prevents compliance with Section

171.103 or 171.106 shall make a written certification in the

pregnant woman's medical record that:

(1) states the physician believes that a medical

emergency necessitating the abortion existed; and

(2) specifies the medical condition of the pregnant

woman that prevented compliance with Section 171.103 or 171.106 and

the medical rationale for the physician's conclusion.

(c) The physician shall maintain in the pregnant woman's

medical record the certification described by Subsection (b) until

at least the seventh anniversary of the date the certification was

made in the record.

Sec. 171.108. CONTRACEPTIVES. Nothing in this subchapter

prohibits the use, dispensing, prescribing, or administration of a

contraceptive.

Sec. 171.109. CIVIL CAUSE OF ACTION. A person is liable to

a woman in a civil action for the wrongful death of her unborn child

if the person performed or induced an abortion on the woman and:

(1) the abortion was performed or induced in violation

of Section 171.004 or 171.005;

(2) the woman was not provided the information

described in Section 171.106(b)(2); or

(3) the woman did not sign a form described in Section

171.106(b)(3).

Sec. 171.110. 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.

SECTION 3. Section 164.052(a), Occupations Code, as amended

by H.B. No. 2, Acts of the 83rd Legislature, 2nd Called Session,

2013, 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;

(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 ; or

(21) performs or induces or attempts to perform or

induce an abortion in violation of Subchapter E, Chapter 171,

Health and Safety Code .

SECTION 4. Section 164.055(b), Occupations Code, as amended

by H.B. No. 2, Acts of the 83rd Legislature, 2nd Called Session,

2013, 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 or E , Chapter 171, Health and Safety Code.

SECTION 5. 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, except as

provided by Section 171.101, Health and Safety Code, as added by

this Act, 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 6. (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, including Subchapter C, Chapter 171, Health

and Safety Code, 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 E, Chapter 171, Health and Safety Code, as

added by this Act, prohibiting abortions performed on an unborn

child after detection of a fetal heartbeat, 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 applied constitutionally and in

accordance with this Act.

SECTION 7. 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