Bill Text: TX HB4876 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Imposing liability on those who perform or assist unlawful abortions.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2023-03-23 - Referred to Judiciary & Civil Jurisprudence [HB4876 Detail]

Download: Texas-2023-HB4876-Introduced.html

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By: Hefner H.B. No. 4876

A BILL TO BE ENTITLED
AN ACT
imposing liability on those who perform or assist unlawful
abortions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 71.001, Civil Practice And Remedies
Code, is amended to read as follows:
Sec. 71.001. DEFINITIONS. In this subchapter:
(1) "Corporation" means a municipal, private, public,
or quasi-public corporation other than a county or a common or
independent school district.
(2) "Person" means an individual, association of
individuals, joint-stock company, or corporation or a trustee or
receiver of an individual, association of individuals, joint-stock
company, or corporation.
(3) "Death" includes, for an individual who is an
unborn child, the failure to be born alive.
(4) "Individual" includes an unborn child at every
stage of gestation from fertilization until birth.
(5) "Wrongful act" includes, but is not limited to:
(A) The violation of any state or federal law,
including 18 U.S.C. §§ 1461-1462;
(B) The manufacture, marketing, mailing,
distribution, transportation, delivery, provision, or possession
of mifepristone; and
(C) The marketing, mailing, distribution,
transportation, delivery, provision, or possession of misoprostol
with the intent of facilitating an unlawful abortion.
(6) "Abortion" means the act of using, prescribing,
administering, procuring, or selling any instrument, medicine,
drug, or any other substance, device, or means with the purpose to
terminate the pregnancy of a woman, with knowledge that the
termination by any of those means will with reasonable likelihood
cause the death of a living human being in the womb. The term does
not include:
(A) In vitro fertilization or fertility
treatments of any type;
(B) The use, prescription, administration,
procuring, or selling of Plan B, morning-after pills, intrauterine
devices, or any other type of contraception or emergency
contraception;
(C) An act performed with the purpose to:
(i) Save the life or preserve the health of
the unborn child;
(ii) Remove a dead unborn child caused by
spontaneous abortion; or
(iii) Remove or treat an ectopic pregnancy,
the implantation of a fertilized egg or embryo outside of the
uterus.
(7) "Unlawful abortion" includes, but is not limited
to:
(A) An abortion performed in violation of any
state or federal statute or any local or municipal ordinance,
regardless of whether the executive or the judiciary is enforcing
that statute or ordinance; and
(B) A drug-induced abortion in which any part of
the drug regimen is swallowed, ingested, administered, or
self-administered in a jurisdiction where the abortion is
prohibited by statute or ordinance.
SECTION 2. Section 71.003, Civil Practice And Remedies
Code, is amended to read as follows:
Sec. 71.003. APPLICATION; CERTAIN CONDUCT EXCEPTED. (a)
This subchapter applies only if the individual injured would have
been entitled to bring an action for the injury if the individual
had lived or had been born alive.
(b) This subchapter applies whether the injury occurs
inside or outside this state.
(c) This subchapter does not apply to a claim for the death
of an individual who is an unborn child that is brought against:
(1) the mother of the unborn child;
(2) a physician or other licensed health care
provider, if the death is the intended result of a lawful medical
procedure performed by the physician or health care provider with
the requisite consent; or
(3) a person who dispenses or administers a drug in
accordance with law, if the death is the result of the dispensation
or administration of the drug; or
(4) a physician or other health care provider licensed
in this state, if the death directly or indirectly is caused by,
associated with, arises out of, or relates to a lawful medical or
health care practice or procedure of the physician or the health
care provider.
SECTION 3. Section 71.007, Civil Practice And Remedies
Code, is amended to read as follows:
Sec. 71.007. INEFFECTIVE AGREEMENT. (a) An agreement
between the owner of a railroad, street railway, steamboat,
stagecoach, or other vehicle for the transportation of goods or
passengers, of an industrial or public utility plant, or of other
machinery and an individual, corporation, trustee, receiver,
lessee, joint-stock association, or other entity in control of or
operating the vehicle, plant, or other machinery does not release
the owner or the entity controlling or operating the vehicle,
plant, or other machinery from liability provided by this
subchapter.
(b) Notwithstanding any other law, any agreement to waive or
limit the right to sue or recover for the death of a pregnant woman
or unborn child resulting from an unlawful abortion is void as
against public policy, is not enforceable in any court, and does not
release any person from liability under this subchapter.
SECTION 4. Section 71.009, Civil Practice And Remedies
Code, is amended to read as follows:
Sec. 71.009. EXEMPLARY DAMAGES. (a) When the death is
caused by the wilful act or omission or gross negligence of the
defendant, exemplary as well as actual damages may be recovered.
(b) When the death is caused by an unlawful abortion, the
plaintiff shall be entitled to recover exemplary damages of not
less than five million dollars $5,000,000 from each defendant that
acted with the intent of causing or facilitating the death of an
unborn child.
SECTION 5. Chapter 71, Civil Practice And Remedies Code, is
amended by adding sections 71.013, 71.014, 71.015, 71.0151,
71.0152, 71.0153, 71.0154, 71.016, 71.017, and 71.018 to read as
follows:
Sec. 71.013. MARKET-SHARE LIABILITY FOR MANUFACTURERS OF
MIFEPRISTONE. When the death is caused by an unlawful abortion in
which mifepristone was used, and the plaintiff is unable to
identify the manufacturer of the mifepristone that was used,
liability shall be apportioned among all manufacturers of
mifepristone in proportion to each manufacturer's share of the
market for mifepristone, in accordance with Sindell v. Abbott
Laboratories, 607 P.2d 924 (Cal. 1980)., 607 P.2d 924 (Cal. 1980).
Sec. 71.014. PERMISSIBLE AND IMPERMISSIBLE DEFENSES. (a)
Notwithstanding any other law, when the death is caused an unlawful
abortion the following are not a defense to an action brought under
this subchapter:
(1) ignorance or mistake of law;
(2) a defendant's belief that the requirements or
provisions of this subchapter are unconstitutional or were
unconstitutional;
(3) a defendant's reliance on any court decision that
has been vacated, reversed, or overruled on appeal or by a
subsequent court, even if that court decision had not been vacated,
reversed, or overruled when the cause of action accrued;
(4) a defendant's reliance on any state or federal
court decision that is not binding on the court in which the action
has been brought;
(5) a defendant's reliance on any federal statute,
agency rule or action, or treaty that has been repealed,
superseded, or declared invalid or unconstitutional, even if that
federal statute, agency rule or action, or treaty had not been
repealed, superseded, or declared invalid or unconstitutional when
the cause of action accrued;
(6) non-mutual issue preclusion or non-mutual claim
preclusion;
(7) the consent of the plaintiff or the unborn child's
mother to the abortion, or the consent of one or both of the parents
of the unborn child's mother, if she was an unemancipated minor, or
the consent of the legal guardian of the unborn child's mother;
(8) contributory or comparative negligence;
(9) assumption of risk;
(10) sovereign immunity, governmental immunity,
official immunity, or qualified immunity; or
(11) any claim that the enforcement of this subchapter
or the imposition of civil liability against the defendant will
violate the constitutional rights of third parties, except as
provided by Subsection (b).
(b) A defendant against whom an action is brought under this
subchapter may assert an affirmative defense to liability if:
(1) the imposition of civil liability on the defendant
will violate constitutional or federally protected rights that
belong to the defendant personally; or
(2) the defendant
(A) has standing to assert the rights of a third
party under the tests for third-party standing established by the
Supreme Court of the United States; and
(B) demonstrates that the imposition of civil
liability on the defendant will violate constitutional or federally
protected rights belonging to that third party.
The defendant shall bear the burden of proving the
affirmative defense in Subsection (a) by a preponderance of the
evidence.
(c) Notwithstanding any other law, when the death is caused
an unlawful abortion a civil action under this subchapter may not be
brought:
(1) against the mother of the aborted unborn child;
(2) against any person that acted at the behest of
federal agencies, contractors, or employees that are carrying out
duties under federal law, if the imposition of liability would
violate the doctrines of preemption or intergovernmental immunity;
(3) against any common carrier that transports a
pregnant woman to an abortion provider, if the common carrier is
unaware that the woman intends to abort her unborn child;
(4) against a provider or user of an interactive
computer service if such a lawsuit would be preempted by 47 U.S.C. §
230(c);
(5) by any person who impregnated the mother of the
aborted unborn child through an act of rape, sexual assault, or
incest, or by anyone who acts in concert or participation with such
a person; or
(6) against a manufacturer, marketer, mailer,
distributor, transporter, deliverer, provider, or possessor of
misoprostol, if the person did not act with the intent of
facilitating an unlawful abortion.
(d) Nothing in this section or subchapter shall limit or
preclude a defendant from asserting the unconstitutionality of any
provision or application of this subchapter as a defense to
liability, or from asserting any other defense that might be
available under any other source of law.
Sec. 71.015. LIMITATIONS. Notwithstanding any other law,
including Chapter 16, Civil Practice and Remedies Code, when death
is caused by an unlawful abortion, a person may bring an action
under this subchapter not later than the tenth anniversary of the
date the cause of action accrues.
Sec. 71.0151. LONG-ARM JURISDICTION. Notwithstanding any
other law, including Chapter 17, Civil Practice and Remedies Code,
when death is caused by an unlawful abortion, the courts of this
state shall have personal jurisdiction over any defendant sued
under this subchapter to the maximum extent permitted by the
Fourteenth Amendment to the United States Constitution.
Sec. 71.0152. VENUE. (a) Notwithstanding any other law,
including Chapter 15, Civil Practice and Remedies Code, when death
is caused by an unlawful abortion, a civil action brought under this
subchapter may be brought in:
(1) the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) the county of residence for any one of the natural
person defendants at the time the cause of action accrued;
(3) the county of the principal office in this state of
any one of the defendants that is not a natural person; or
(4) the county of residence for the claimant if the
claimant is a natural person residing in this state.
(b) Notwithstanding any other law, if a civil action is
brought under this subchapter in response to a death caused by an
unlawful abortion in any one of the venues described by Subsection
(a), then the action may not be transferred to a different venue
without the written consent of all parties.
(c) Any contractual choice-of-forum provision that purports
to require a civil action under this subchapter to be litigated in
another forum is void as against public policy, and may not be
enforced in any state or federal court.
Sec. 71.0153. CHOICE OF LAW. (a) Notwithstanding any other
law, the law of Texas shall apply to any abortion performed or
induced by or upon a resident or citizen of Texas, regardless of
where that abortion occurs, and to any civil action brought under
this subchapter, to the maximum extent permitted by the
Constitution of the United States and the Texas Constitution.
(b) Notwithstanding any other law, no court may apply the
law of another state or jurisdiction to any civil action brought
under this subchapter, unless the Constitution of the United States
or the Texas Constitution compels it to do so.
(c) Any contractual choice-of-law provision that purports
to require the law of another jurisdiction to govern a civil action
brought under this subchapter is void as against public policy, and
may not be enforced in any state or federal court.
Sec. 71.0154. ANTI-SLAPP AND TEXAS RFRA EXCLUSIONS.
Notwithstanding any other law, a civil action under this subchapter
shall not be subject to any provision of Chapter 27, Civil Practice
and Remedies Code, or Chapter 110, Civil Practice and Remedies
Code.
Sec. 71.016. PRIVATE ENFORCEMENT EXCLUSIVE. (a)
Notwithstanding any other law, the requirements of this subchapter
shall be enforced exclusively through the private civil actions
established in this subchapter. No direct or indirect enforcement
of this subchapter may be taken or threatened by the state or a
political subdivision, by any means whatsoever, and no violation of
this subchapter may be used to justify or trigger the enforcement of
any other law or any type of adverse consequence under any other
law, except as provided in this subchapter. This section does not
preclude or limit the enforcement of any other law or regulation
against conduct that is independently prohibited by such other law
or regulation, and that would remain prohibited by such other law or
regulation in the absence of this subchapter.
(b) Notwithstanding any other law, neither the state nor any
of its political subdivisions may:
(1) act in concert or participation with anyone who
brings suit under this subchapter;
(2) establish or attempt to establish any type of
agency or fiduciary relationship with a person who brings suit
under this subchapter;
(3) make any attempt to control or influence a person's
decision to bring suit under this subchapter or that person's
conduct of the litigation; or
(4) intervene in any action brought under this
subchapter.
This subsection does not prohibit a person or entity
described by this subsection from filing an amicus curiae brief in
the action, so long as that person or entity does not act in concert
or participation with the plaintiff or plaintiffs who sue under
this subchapter or violate any provision of Subsection (b)(1)-(4).
Sec. 71.017. IMMUNITY FROM SUIT AND LIMITS ON STATE-COURT
JURISDICTION. (a) Notwithstanding any other law, the state and
each of its officers and employees shall have sovereign immunity,
its political subdivisions and each of their officers and employees
shall have governmental immunity, and each officer and employee of
this state or a political subdivision shall have official immunity
(as well as sovereign or governmental immunity, as appropriate) in
any action, claim, counterclaim, or any type of legal or equitable
action that challenges the validity of any provision or application
of this subchapter, on constitutional grounds or otherwise, or that
seeks to prevent or enjoin the state, its political subdivisions,
or any officer or employee of this state or a political subdivision
from enforcing any provision or application of this subchapter, or
from hearing, adjudicating, or docketing a civil action brought
under this subchapter, unless that immunity has been abrogated or
preempted by federal law in a manner consistent with the
Constitution of the United States. The sovereign immunity
conferred by this section upon the state and each of its officers
and employees includes the constitutional sovereign immunity
recognized by the Supreme Court of the United States in Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996), and Alden v. Maine, , 517 U.S. 44 (1996), and Alden v. Maine,
527 U.S. 706 (1999), which applies in both state and federal court
and which may not be abrogated by Congress or by any state or
federal court except pursuant to legislation authorized by section
5 of the Fourteenth Amendment, by the Bankruptcy Clause of Article
I, or by Congress's powers to raise and support Armies and to
provide and maintain a Navy.
(b) Notwithstanding any other law, the immunities conferred
by Subsection (a) shall apply in every court, both state and
federal, and in every adjudicative proceeding of any type
whatsoever.
(c) Notwithstanding any other law, no provision of state law
may be construed to waive or abrogate an immunity described in
Subsection (a) unless it expressly waives or abrogates immunity
with specific reference to this section.
(d) Notwithstanding any other law, no attorney representing
the state, its political subdivisions, or any officer or employee
of this state or a political subdivision is authorized or permitted
to waive an immunity described in Subsection (a) or take any action
that would result in a waiver of that immunity, and any such action
or purported waiver shall be regarded as a legal nullity and an
ultra vires act.
(e) Notwithstanding any other law, including Chapter 37,
Civil Practice and Remedies Code, and sections 22.002, 22.221, and
24.007 through 24.011, Government Code, no court of this state may
award declaratory or injunctive relief, or any type of writ, that
would pronounce any provision or application of this subchapter
invalid or unconstitutional, or that would restrain the state, its
political subdivisions, any officer, employee, or agent of this
state or a political subdivision, or any person from enforcing any
provision or application of this subchapter, or from hearing,
adjudicating, docketing, or filing a civil action brought under
this subchapter, and no court of this state shall have jurisdiction
to consider any action, claim, or counterclaim that seeks such
relief.
(f) Nothing in this section or subchapter shall be construed
to prevent a litigant from asserting the invalidity or
unconstitutionality of any provision or application of this
subchapter as a defense to any action, claim, or counterclaim
brought against that litigant.
(g) Notwithstanding any other law, any judicial relief
issued by a court of this state that disregards the immunities
conferred by Subsection (a), or the jurisdictional limitations
imposed by Subsection (e), shall be regarded as a legal nullity
because it was issued by a court without jurisdiction, and may not
be enforced or obeyed by any officer or employee of this state or a
political subdivision, judicial or otherwise.
(h) Notwithstanding any other law, any writ, injunction, or
declaratory judgment issued by a court of this state that purports
to restrain the state, its political subdivisions, any officer or
employee of this state or a political subdivision, or any person
from hearing, adjudicating, docketing, or filing a civil action
brought under this subchapter shall be regarded as a legal nullity
and a violation of the Due Process Clause of the Fourteenth
Amendment, and may not be enforced or obeyed by any officer or
employee of this state or a political subdivision, judicial or
otherwise.
(i) Notwithstanding any other law, any officer or employee
of this state or a political subdivision, judicial or otherwise,
who issues, enforces, or obeys a writ, injunction, or declaratory
judgment described in Subsection (h) shall be subject to suit by any
person who is prevented from or delayed in bringing a civil action
under this subchapter, and a claimant who prevails in an action
brought under this section shall recover:
(1) injunctive relief;
(2) compensatory damages;
(3) punitive damages of not less than $100,000; and
(4) costs and reasonable attorney's fees.
(j) Notwithstanding any other law, any person who violates
Subsections (e) or (h):
(1) may not assert and shall not be entitled to any
type of immunity defense, including sovereign immunity,
governmental immunity, official immunity, or judicial immunity;
(2) may not and shall not be indemnified for any award
of damages or costs and attorneys' fees entered against them, or for
the costs of their legal defense; and
(3) may not and shall not receive or obtain legal
representation from the attorney general of this state in any
action brought under Subsection (i).
(k) Notwithstanding any other law, any person who sues and
seeks any writ, injunction, or declaratory judgment that would
restrain any person from hearing, adjudicating, docketing, or
filing a civil action brought under this subchapter, shall pay the
costs and attorneys' fees of the person sued. A person may bring a
civil action to recover these costs and attorneys' fees in state or
federal court. It shall not be defense to a civil action brought
under this Subsection that:
(1) the plaintiff failed to seek recovery of costs or
attorney's fees in the underlying action;
(2) the court in the underlying action declined to
recognize or enforce the requirements of this Section; or
(3) the court in the underlying action held that any
provisions of this Section are invalid, unconstitutional, or
preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.
Sec. 71.018. SEVERABILITY. (a) Mindful of Leavitt v. Jane
L., 518 U.S. 137 (1996), in which in the context of determining the , 518 U.S. 137 (1996), in which in the context of determining the
severability of a state statute the Supreme Court of the United
States 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 subchapter, and every application of the provisions in this
subchapter to every person, group of persons, or circumstances, are
severable from each other.
(b) If any application of any provision in this subchapter
to any person, group of persons, or circumstances is found by a
court to be invalid, preempted, or unconstitutional, for any reason
whatsoever, then the remaining applications of that provision to
all other persons and circumstances shall be severed and preserved,
and shall remain in effect. All constitutionally valid
applications of the provisions in this subchapter shall be severed
from any applications that a court finds to be invalid, preempted,
or unconstitutional, because it is the legislature's intent and
priority that every single valid application of every statutory
provision be allowed to stand alone.
(c) The legislature further declares that it would have
enacted this subchapter, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of the provisions of this subchapter, irrespective of
the fact that any provision, section, subsection, sentence, clause,
phrase, or word, or applications of this subchapter were to be
declared invalid, preempted, or unconstitutional.
(d) If any provision of this subchapter 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, consistent with the
severability requirements of Subsections (a), (b), and (c).
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) on the ground
that severance would "rewrite" the statute or involve the court in
legislative or lawmaking activity. A court that declines to
enforce or enjoins a state official from enforcing a statutory
provision is never rewriting a statute or engaging in legislative
or lawmaking activity, as the statute continues to contain the same
words as before the court's decision. A judicial injunction or
declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement of the disputed statute against the named parties to
that lawsuit, which may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas State Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any state or federal court disregards any of the
severability requirements in Subsections (a), (b), (c), (d), or
(e), and declares or finds any provision of this subchapter
facially invalid, preempted, or unconstitutional, when there are
discrete applications of that provision that can be enforced
against a person, group of persons, or circumstances without
violating federal law or the federal or state constitutions, then
that provision shall be interpreted, as a matter of state law, as if
the legislature had enacted a provision limited to the persons,
group of persons, or circumstances for which the provision's
application will not violate federal law or the federal or state
constitutions, and every court shall adopt this saving construction
of that provision until the court ruling that pronounced the
provision facially invalid, preempted, or unconstitutional is
vacated or overruled.
SECTION 6. This Act takes effect September 1, 2023.