Bill Text: TX HB2988 | 2011-2012 | 82nd Legislature | Introduced

---

Bill Title: Relating to prohibiting abortion except when medically necessary.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2011-03-17 - Referred to State Affairs [HB2988 Detail]

Download: Texas-2011-HB2988-Introduced.html

---

82R3425 YDB-D
By: Parker H.B. No. 2988

A BILL TO BE ENTITLED
AN ACT
relating to prohibiting abortion except when medically necessary.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 170, Health and Safety
Code, is amended to read as follows:
CHAPTER 170. ABORTION PROHIBITED [ACTS REGARDING ABORTION]
SECTION 2. Section 170.002, Health and Safety Code, is
amended to read as follows:
Sec. 170.002. ABORTION PROHIBITED [ACTS]; EXEMPTION. (a)
Except as provided by Subsection (b), a person may not
intentionally or knowingly perform an abortion on a woman who is
pregnant [with a viable unborn child during the third trimester of
the pregnancy].
(b) Subsection (a) does not prohibit a person from
performing an abortion if at the time of the abortion the person is
a physician and concludes in good faith according to the
physician's best medical judgment that[:
[(1) the fetus is not a viable fetus and the pregnancy
is not in the third trimester;
[(2)] the abortion is necessary to prevent the death
or a substantial risk of serious impairment to the physical [or
mental] health of the woman[; or
[(3) the fetus has a severe and irreversible
abnormality, identified by reliable diagnostic procedures].
(c) A physician who performs an abortion [that, according to
the physician's best medical judgment at the time of the abortion,
is to abort a viable unborn child during the third trimester of the
pregnancy] shall certify in writing to the department, on a form
prescribed by the department, the medical indications supporting
the physician's judgment that the abortion was authorized by
Subsection (b) [(b)(2) or (3)]. The certification must be made not
later than the 30th day after the date the abortion was performed.
SECTION 3. Chapter 33, Family Code, is amended by adding
Section 33.0011 to read as follows:
Sec. 33.0011. PROHIBITED ABORTION NOT AUTHORIZED. This
chapter may not be construed to authorize the performance of an
abortion prohibited under Chapter 170, Health and Safety Code.
SECTION 4. Sections 33.002(a), (d), (e), (f), and (i),
Family Code, are amended to read as follows:
(a) A physician may not perform an abortion on a pregnant
unemancipated minor unless:
(1) the physician performing the abortion gives at
least 48 hours actual notice, in person or by telephone, of the
physician's intent to perform the abortion to and, in accordance
with Section 164.052, Occupations Code, obtains written consent
from:
(A) a parent of the minor, if the minor has no
managing conservator or guardian; or
(B) a court-appointed managing conservator or
guardian; or
(2) [the judge of a court having probate jurisdiction,
the judge of a county court at law, the judge of a district court,
including a family district court, or a court of appellate
jurisdiction issues an order authorizing the minor to consent to
the abortion as provided by Section 33.003 or 33.004;
[(3) a probate court, county court at law, district
court, including a family district court, or court of appeals, by
its inaction, constructively authorizes the minor to consent to the
abortion as provided by Section 33.003 or 33.004; or
[(4)] the physician performing the abortion:
(A) 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 and irreversible
impairment of a major bodily function and that there is
insufficient time to provide the notice and obtain the consent of
the minor's parent, managing conservator, or guardian; and
(B) certifies in writing to the [Texas]
Department of State Health Services and in the patient's medical
record the medical indications supporting the physician's judgment
that the circumstances described by Paragraph (A) exist.
(d) A physician may execute for inclusion in the minor's
medical record an affidavit stating that, according to the best
information and belief of the physician, notice [or constructive
notice] has been provided as required by this section. Execution of
an affidavit under this subsection creates a presumption that the
notice requirements of this section have been satisfied.
(e) The [Texas] Department of State Health Services shall
prepare a form to be used for making the certification required by
Subsection (a)(2) [(a)(4)].
(f) A certification required by Subsection (a)(2) [(a)(4)]
is confidential and privileged and is not subject to disclosure
under Chapter 552, Government Code, or to discovery, subpoena, or
other legal process. Personal or identifying information about the
minor, including her name, address, or social security number, may
not be included in a certification under Subsection (a)(2)
[(a)(4)]. The physician must keep the medical records on the minor
in compliance with the rules adopted by the Texas [State Board of]
Medical Board [Examiners] under Section 153.003, Occupations Code.
(i) In relation to the trial of an offense under this
section in which the conduct charged involves a conclusion made by
the physician under Subsection (a)(2) [(a)(4)], the defendant may
seek a hearing before the Texas [State Board of] Medical Board
[Examiners] on whether the physician's conduct was necessary to
avert the death of the minor or to avoid a serious risk of
substantial and irreversible impairment of a major bodily function.
The findings of the Texas [State Board of] Medical Board
[Examiners] under this subsection are admissible on that issue in
the trial of the defendant. Notwithstanding any other reason for a
continuance provided under the Code of Criminal Procedure or other
law, on motion of the defendant, the court shall delay the beginning
of the trial for not more than 30 days to permit a hearing under this
subsection to take place.
SECTION 5. Section 33.008(b), Family Code, is amended to
read as follows:
(b) The Department of Family and Protective [and
Regulatory] Services shall investigate suspected abuse reported
under this section [and, if appropriate, shall assist the minor in
making an application with a court under Section 33.003].
SECTION 6. Section 33.010, Family Code, is amended to read
as follows:
Sec. 33.010. CONFIDENTIALITY. Notwithstanding any other
law, information obtained by the Department of Family and
Protective Services or another entity under Section 33.008 [or
33.009] is confidential except to the extent necessary to prove a
violation of Section 21.02, 22.011, 22.021, or 25.02, Penal Code.
SECTION 7. Section 419.908(c), Government Code, as added by
Chapter 994 (H.B. 3866), Acts of the 81st Legislature, Regular
Session, 2009, is amended to read as follows:
(c) This section does not apply to state agency personnel
who conduct a life safety code survey of a building or facility in
connection with determining whether to issue or renew a license
under Chapter 142, 241, 242, 243, 244, [245,] 247, 248, 251, 252,
464, 466, or 577, Health and Safety Code, or Chapter 103, Human
Resources Code.
SECTION 8. Section 248.003, Health and Safety Code, is
amended to read as follows:
Sec. 248.003. EXEMPTIONS. This chapter does not apply to:
(1) a home and community support services agency
required to be licensed under Chapter 142;
(2) a person required to be licensed under Chapter 241
(Texas Hospital Licensing Law);
(3) an institution required to be licensed under
Chapter 242;
(4) an ambulatory surgical center required to be
licensed under Chapter 243 (Texas Ambulatory Surgical Center
Licensing Act);
(5) a birthing center required to be licensed under
Chapter 244 (Texas Birthing Center Licensing Act);
(6) [a facility required to be licensed under Chapter
245 (Texas Abortion Facility Reporting and Licensing Act);
[(7)] a child care institution, foster group home,
foster family home, and child-placing agency, for children in
foster care or other residential care who are under the
conservatorship of the Department of Family and Protective [and
Regulatory] Services; or
(7) [(8)] a person providing medical or nursing care
or services under a license or permit issued under other state law.
SECTION 9. 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 authorized under Section
170.002(b), Health and Safety Code [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.
SECTION 10. The following provisions are repealed:
(1) Section 33.002(b), Family Code;
(2) Sections 33.003, 33.004, 33.005, 33.006, 33.007,
33.009, and 33.011, Family Code;
(3) Section 170.001(3), Health and Safety Code;
(4) Chapter 171, Health and Safety Code; and
(5) Chapter 245, Health and Safety Code.
SECTION 11. If any provision of this Act or its application
to any person or circumstance is held invalid, the entire Act is
invalid, and to this end the provisions of this Act are declared to
be nonseverable.
SECTION 12. The changes in law made by this Act apply only
to an offense committed or conduct that occurs on or after the
effective date of this Act. An offense committed or conduct that
occurs before the effective date of this Act is governed by the law
in effect when the offense was committed or the conduct occurred,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense is committed or conduct occurs
before the effective date of this Act if any element of the offense
or conduct occurs before the effective date.
SECTION 13. Information obtained before the effective date
of this Act by the Department of Family and Protective Services or
another entity under Section 33.009, Family Code, as it existed
before the effective date of this Act, remains confidential to the
extent provided by Section 33.010, Family Code, as it existed
before the effective date of this Act.
SECTION 14. The repeal by this Act of Section 33.006, Family
Code, does not apply to a cause of action that accrues before the
effective date of this Act. A cause of action that accrues before
the effective date of this Act is governed by the law as it existed
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 15. 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 September 1, 2011.