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.