By: Rodríguez S.B. No. 150
A BILL TO BE ENTITLED
relating to the Whole Woman’s Health Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) This Act shall be known as the Whole Woman’s Health Act.
(b) The legislature finds that:
(1) comprehensive reproductive health care, including safe abortion, is a vital component of a woman’s overall health and of her social and economic equality;
(2) abortion is one of the safest medical procedures in the United States, as demonstrated by available data, including from the federal Centers for Disease Control and Prevention, showing abortion has a more than 99 percent safety record;
(3) any regulation of medical care must have a legitimate purpose and advance the goals of improving the quality of care and increasing access to care;
(4) the United States Supreme Court held more than 40 years ago in Roe v. Wade that access to an abortion is a constitutional right and that states may not prohibit abortion before viability;
(5) the right to an abortion has been upheld in multiple decisions issued by the United States Supreme Court, including in the 1992 case Planned Parenthood v. Casey and most recently in the landmark decision Whole Woman’s Health v. Hellerstedt;
(6) in Whole Woman’s Health, the court held that the United States Constitution “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer”;
(7) in Whole Woman’s Health, the court further held that courts, “when determining the constitutionality of laws regulating abortion procedures,” must place “considerable weight upon evidence . . . presented”;
(8) applying the standard described in Subdivision (7) of this section in Whole Woman’s Health, the court struck down two provisions of Chapter 1 (H.B. 2), Acts of the 83rd Legislature, 2nd Called Session, 2013, that were designed to close abortion clinics in the state and that the court concluded provided few, if any, health benefits for women;
(9) Justice Ruth Bader Ginsburg concluded in Whole Woman’s Health given the safety of abortion, “it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions'”;
(10) Justice Ruth Bader Ginsburg also observed abortion restrictions that “‘do little or nothing for health, but rather strew impediments to abortion’ . . . cannot survive judicial inspection”;
(11) according to the American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, and American Osteopathic Association, which are leading public health organizations and amici curiae for the petitioners in Whole Woman’s Health, “[w]omen’s access to high-quality, evidence-based abortion care should not be limited by laws enacted under the guise of patient safety but that, in fact, harm women’s health”; and
(12) the 334 restrictions on abortion providers and their patients adopted nationally since 2011 and the 13 onerous restrictions enacted in this state based on pretextual reasons are just a systematic attempt to eliminate access to safe and legal medical care.
(c) In accordance with the United States Constitution, it is the intent of the legislature to prevent the enforcement of laws or regulations that burden abortion access and do not provide legitimate health benefits.
SECTION 2. The heading to Chapter 170, Health and Safety Code, is amended to read as follows:
CHAPTER 170. PROHIBITED ACTS REGARDING ABORTION AND RIGHT TO ABORTION
SECTION 3. Chapter 170, Health and Safety Code, is amended by adding Sections 170.003 and 170.004 to read as follows:
Sec. 170.003. RIGHT TO ABORTION. (a) Every woman in this state has the fundamental right to choose to obtain a safe and legal abortion.
(b) This state or a political subdivision of this state may not prohibit a woman from obtaining an abortion at any time throughout her pregnancy if the termination is necessary, in the professional judgment of a physician, to protect the woman’s life or health.
Sec. 170.004. PROHIBITED ABORTION LAWS; CIVIL ACTION; WAIVER OF IMMUNITY. (a) Notwithstanding any other law, this state or a political subdivision of this state may not enforce a law on abortion that places a burden on a woman’s access to abortion and does not confer any legitimate health benefit to the woman.
(b) For purposes of Subsection (a), a law places a burden on access to abortion if the law:
(1) forces abortion providers to close;
(2) increases the time a woman is required to wait to obtain an abortion;
(3) requires a meaningful increase in the distance a woman is required to travel to access care;
(4) requires medically unnecessary visits to a health care facility;
(5) requires a health care provider to perform a medical or health care service the provider would not otherwise perform;
(6) increases risks to a woman’s health;
(7) causes a meaningful increase in the cost of an abortion procedure;
(8) is enacted solely for the purpose of stigmatizing abortion patients and abortion providers; or
(9) has as its sole purpose or effect decreasing or eliminating access to abortion.
(c) For purposes of Subsection (a), a law confers a legitimate health benefit if the law:
(1) expands a woman’s access to medical or health care services; or
(2) increases an abortion patient’s safety according to evidence-based research.
(d) A person who is aggrieved by this state’s or a political subdivision’s violation of Subsection (a) may bring a civil action against this state or the political subdivision for injunctive relief and damages incurred as a result of the violation. Sovereign immunity of this state and governmental immunity of the political subdivision from suit and to liability are waived and abolished to the extent of liability created under this subsection.
SECTION 4. Section 171.003, Health and Safety Code, is amended to read as follows:
Sec. 171.003. PERSONS WHO MAY [PHYSICIAN TO] PERFORM ABORTION. An abortion may be performed only by:
(1) a physician licensed to practice medicine in this state;
(2) a nurse licensed under Subtitle E, Title 3, Occupations Code, who is operating within the nurse’s scope of practice; or
(3) a physician assistant licensed under Chapter 204, Occupations Code, who is operating within the physician assistant’s scope of practice.
SECTION 5. Section 245.002, Health and Safety Code, is amended by amending Subdivision (1) and adding Subdivision (3) to read as follows:
(1) “Abortion” means an act or procedure performed after pregnancy has been medically verified and with the intent to cause the termination of a pregnancy other than for the purpose of either the birth of a live fetus or the removal of a dead fetus [the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant]. The term does not include birth control devices or oral contraceptives. [An act is not an abortion if the act is done with the intent to:
[(A) save the life or preserve the health of an unborn child;
[(B) remove a dead, unborn child whose death was caused by spontaneous abortion; or
[(C) remove an ectopic pregnancy.]
(3) “Commission” means the Health and Human Services Commission.
SECTION 6. Section 245.005(e), Health and Safety Code, is amended to read as follows:
(e) As a condition for renewal of a license, the licensee must submit to the commission [department] the annual license renewal fee and an annual report, including the report required under Section 245.011.
SECTION 7. The heading to Section 245.010, Health and Safety Code, is amended to read as follows:
Sec. 245.010. PERSONS WHO MAY PERFORM ABORTION [MINIMUM STANDARDS].
SECTION 8. Section 245.010(b), Health and Safety Code, is amended to read as follows:
(b) Only a physician as defined by Subtitle B, Title 3, Occupations Code, a nurse licensed under Subtitle E, Title 3, Occupations Code, who is operating within the nurse’s scope of practice, or a physician assistant licensed under Chapter 204, Occupations Code, who is operating within the physician assistant’s scope of practice may perform an abortion.
SECTION 9. Sections 245.011(a) and (b), Health and Safety Code, are amended to read as follows:
(a) Each [A physician who performs an abortion at an] abortion facility must [complete and] submit an annual [a monthly] report to the commission [department] on each abortion performed [by the physician] at the abortion facility. The report must be submitted on a form provided by the commission [department].
(b) The report may not identify by any means the physician performing the abortion or the patient.
SECTION 10. 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 necessary to protect the health or 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, unless the abortion is necessary due to a medical emergency, as defined by Section 171.002, Health and Safety Code; or
(20) otherwise performs an abortion on an unemancipated minor in violation of Chapter 33, Family Code[; or
[(21) performs or induces or attempts to perform or induce an abortion in violation of Subchapter C, F, or G, Chapter 171, Health and Safety Code].
SECTION 11. Section 164.055(b), Occupations Code, 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 [, Health and Safety Code, or Subchapter C, F, or G, Chapter 171], Health and Safety Code.
SECTION 12. The following provisions are repealed:
(1) Section 32.005, Health and Safety Code;
(2) Sections 171.0031, 171.004, 171.006, as added by Chapter 4 (H.B. 13), Acts of the 85th Legislature, Regular Session, 2017, 171.006, as added by Chapter 9 (H.B. 215), Acts of the 85th Legislature, Regular Session, 2017, 171.012, 171.0121, 171.0122, 171.0123, 171.013, 171.014, 171.015, 171.016, 171.017, and 171.018, Health and Safety Code;
(3) Subchapters C, D, F, and G, Chapter 171, Health and Safety Code;
(4) Chapter 173, Health and Safety Code;
(5) Sections 241.007, 243.017, 245.002(4-a), 245.004, as amended by Chapter 198 (H.B. 2292), Acts of the 78th Legislature, Regular Session, 2003, 245.010(a), 245.011(f) and (g), 245.0115, 245.0116, and 245.024, Health and Safety Code;
(6) Chapter 697, Health and Safety Code;
(7) Chapter 1218, Insurance Code;
(8) Subtitle M, Title 8, Insurance Code;
(9) Section 164.0551, Occupations Code; and
(10) Sections 48.03(a) and (d), Penal Code, as added by Chapter 441 (S.B. 8), Acts of the 85th Legislature, Regular Session, 2017.
SECTION 13. The changes in law made by this Act apply only to an abortion performed on or after the effective date of this Act. An abortion performed before the effective date of this Act is governed by the law applicable to the abortion immediately before the effective date of this Act, and that law is continued in effect for that purpose.
SECTION 14. 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, 2019.