2017 Texas Statutes
HEALTH AND SAFETY CODE
TITLE 2 - HEALTH
SUBTITLE H - PUBLIC HEALTH PROVISIONS
CHAPTER 171 - ABORTION
HEALTH AND SAFETY CODE
TITLE 2. HEALTH
SUBTITLE H. PUBLIC HEALTH PROVISIONS
CHAPTER 171. ABORTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 171.001. SHORT TITLE. This chapter may be called the Woman's Right to Know Act.
Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Sec. 171.002. DEFINITIONS. In this chapter:
(1) "Abortion" has the meaning assigned by Section 245.002.
(2) "Abortion provider" means a facility where an abortion is performed, including the office of a physician and a facility licensed under Chapter 245.
(3) "Medical emergency" means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.
(4) "Sonogram" means the use of ultrasonic waves for diagnostic or therapeutic purposes, specifically to monitor an unborn child.
Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 1, eff. September 1, 2011.
Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 4, eff. September 1, 2017.
Sec. 171.003. PHYSICIAN TO PERFORM. An abortion may be performed only by a physician licensed to practice medicine in this state.
Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Sec. 171.0031. REQUIREMENTS OF PHYSICIAN; OFFENSE. (a) A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services; and
(2) shall provide the pregnant woman with:
(A) a telephone number by which the pregnant woman may reach the physician, or other health care personnel employed by the physician or by the facility at which the abortion was performed or induced with access to the woman's relevant medical records, 24 hours a day to request assistance for any complications that arise from the performance or induction of the abortion or ask health-related questions regarding the abortion; and
(B) the name and telephone number of the nearest hospital to the home of the pregnant woman at which an emergency arising from the abortion would be treated.
(b) A physician who violates Subsection (a) commits an offense. An offense under this section is a Class A misdemeanor punishable by a fine only, not to exceed $4,000.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 2, eff. October 29, 2013.
Sec. 171.004. ABORTION OF FETUS AGE 16 WEEKS OR MORE. An abortion of a fetus age 16 weeks or more may be performed only at an ambulatory surgical center or hospital licensed to perform the abortion.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Sec. 171.005. DEPARTMENT TO ENFORCE. The department shall enforce this chapter.
Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Text of section as added by Acts 2017, 85th Leg., 1st C.S., Ch. 4 (H.B. 13), Sec. 1
For text of section as added by Acts 2017, 85th Leg., 1st C.S., Ch. 9 (H.B. 215), Sec. 2, see other Sec. 171.006.
Sec. 171.006. ABORTION COMPLICATION REPORTING REQUIREMENTS; CIVIL PENALTY. (a) In this section "abortion complication" means any harmful event or adverse outcome with respect to a patient related to an abortion that is performed on the patient and that is diagnosed or treated by a health care practitioner or at a health care facility and includes:
(1) shock;
(2) uterine perforation;
(3) cervical laceration;
(4) hemorrhage;
(5) aspiration or allergic response;
(6) infection;
(7) sepsis;
(8) death of the patient;
(9) incomplete abortion;
(10) damage to the uterus; or
(11) an infant born alive after the abortion.
(b) The reporting requirements of this section apply only to:
(1) a physician who:
(A) performs at an abortion facility an abortion that results in an abortion complication diagnosed or treated by that physician; or
(B) diagnoses or treats at an abortion facility an abortion complication that is the result of an abortion performed by another physician at the facility; or
(2) a health care facility that is a hospital, abortion facility, freestanding emergency medical care facility, or health care facility that provides emergency medical care, as defined by Section 773.003.
(c) A physician described by Subsection (b)(1) shall electronically submit to the commission in the form and manner prescribed by commission rule a report on each abortion complication diagnosed or treated by that physician not later than the end of the third business day after the date on which the complication is diagnosed or treated. Each health care facility described by Subsection (b)(2) shall electronically submit to the commission in the form and manner prescribed by commission rule a report on each abortion complication diagnosed or treated at the facility not later than the 30th day after the date on which the complication is diagnosed or treatment is provided for the complication.
(d) The commission shall develop a form for reporting an abortion complication under Subsection (c) and publish the form on the commission's Internet website. The executive commissioner by rule may adopt procedures to reduce duplication in reporting under this section.
(e) A report under this section may not identify by any means the physician performing an abortion, other than a physician described by Subsection (b)(1), or the patient on whom the abortion was performed.
(f) A report under this section must identify the name of the physician submitting the report or the name and type of health care facility submitting the report and must include, if known, for each abortion complication:
(1) the date of the abortion that caused or may have caused the complication;
(2) the type of abortion that caused or may have caused the complication;
(3) the gestational age of the fetus at the time the abortion was performed;
(4) the name and type of the facility in which the abortion was performed;
(5) the date the complication was diagnosed or treated;
(6) the name and type of any facility other than the reporting facility in which the complication was diagnosed or treated;
(7) a description of the complication;
(8) the patient's year of birth, race, marital status, and state and county of residence;
(9) the date of the first day of the patient's last menstrual period that occurred before the date of the abortion that caused or may have caused the complication;
(10) the number of previous live births of the patient; and
(11) the number of previous induced abortions of the patient.
(g) Except as provided by Section 245.023, all information and records held by the commission under this section are confidential and are not open records for the purposes of Chapter 552, Government Code. That information may not be released or made public on subpoena or otherwise, except release may be made:
(1) for statistical purposes, but only if a person, patient, or health care facility is not identified;
(2) with the consent of each person, patient, and facility identified in the information released;
(3) to medical personnel, appropriate state agencies, or county and district courts to enforce this chapter; or
(4) to appropriate state licensing boards to enforce state licensing laws.
(h) A report submitted under this section must include the most specific, accurate, and complete reporting for the highest level of specificity.
(i) The commission shall develop and publish on the commission's Internet website an annual report that aggregates on a statewide basis each abortion complication required to be reported under Subsection (f) for the previous calendar year. The annual report may not include any duplicative data.
(j) A physician described by Subsection (b)(1) or health care facility that violates this section is subject to a civil penalty of $500 for each violation. The attorney general, at the request of the commission or appropriate licensing agency, may file an action to recover a civil penalty assessed under this subsection and may recover attorney's fees and costs incurred in bringing the action. Each day of a continuing violation constitutes a separate ground for recovery.
(k) The third separate violation of this section constitutes cause for the revocation or suspension of a physician's or health care facility's license, permit, registration, certificate, or other authority or for other disciplinary action against the physician or facility by the appropriate licensing agency.
(l) The commission shall notify the Texas Medical Board of any violations of this section by a physician.
Added by Acts 2017, 85th Leg., 1st C.S., Ch. 4 (H.B. 13), Sec. 1, eff. November 14, 2017.
Text of section as added by Acts 2017, 85th Leg., 1st C.S., Ch. 9 (H.B. 215), Sec. 2
For text of section as added by Acts 2017, 85th Leg., 1st C.S., Ch. 4 (H.B. 13), Sec. 1, see other Sec. 171.006.
Sec. 171.006. REPORTING REQUIREMENTS FOR ABORTIONS PERFORMED ON WOMEN YOUNGER THAN 18 YEARS OF AGE. (a) For each abortion performed on a woman who is younger than 18 years of age, the physician who performed the abortion shall document in the woman's medical record and report to the commission in the report required under Section 245.011:
(1) one of the following methods for obtaining authorization for the abortion:
(A) the woman's parent, managing conservator, or legal guardian provided the written consent required by Section 164.052(a)(19), Occupations Code;
(B) the woman obtained judicial authorization under Section 33.003 or 33.004, Family Code;
(C) the woman consented to the abortion if the woman has had the disabilities of minority removed and is authorized under law to have the abortion without the written consent required by Section 164.052(a)(19), Occupations Code, or without judicial authorization under Section 33.003 or 33.004, Family Code; or
(D) the physician concluded and documented in writing in the woman's medical record that on the basis of the physician's good faith clinical judgment:
(i) a condition existed that complicated the medical condition of the woman and necessitated the immediate abortion of the woman's pregnancy to avert the woman's death or to avoid a serious risk of substantial impairment of a major bodily function; and
(ii) there was insufficient time to obtain the consent of the woman's parent, managing conservator, or legal guardian;
(2) if the woman's parent, managing conservator, or legal guardian provided the written consent described by Subdivision (1)(A), whether the consent was given:
(A) in person at the location where the abortion was performed; or
(B) at a place other than the location where the abortion was performed; and
(3) if the woman obtained the judicial authorization described by Subdivision (1)(B):
(A) if applicable, the process the physician or physician's agent used to inform the woman of the availability of petitioning for judicial authorization as an alternative to the written consent required by Section 164.052(a)(19), Occupations Code;
(B) whether the court forms were provided to the woman by the physician or the physician's agent;
(C) whether the physician or the physician's agent made arrangements for the woman's court appearance; and
(D) if known, whether the woman became pregnant while in foster care or in the managing conservatorship of the Department of Family and Protective Services.
(b) Except as provided by Section 245.023, all information and records held by the commission under this section are confidential and are not open records for the purposes of Chapter 552, Government Code. That information may not be released or made public on subpoena or otherwise, except release may be made:
(1) for statistical purposes, but only if a person, patient, or health care facility is not identified;
(2) with the consent of each person, patient, and facility identified in the information released;
(3) to appropriate state agencies or county and district courts to enforce this chapter;
(4) to appropriate state licensing boards to enforce state licensing laws; or
(5) to licensed medical or health care personnel currently treating the patient.
(c) Any information released by the commission may not identify by any means the county in which a minor obtained judicial authorization for an abortion under Chapter 33, Family Code.
Added by Acts 2017, 85th Leg., 1st C.S., Ch. 9 (H.B. 215), Sec. 2, eff. November 14, 2017.
SUBCHAPTER B. INFORMED CONSENT
Sec. 171.011. INFORMED CONSENT REQUIRED. A person may not perform an abortion without the voluntary and informed consent of the woman on whom the abortion is to be performed.
Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Sec. 171.012. VOLUNTARY AND INFORMED CONSENT. (a) Consent to an abortion is voluntary and informed only if:
(1) the physician who is to perform the abortion informs the pregnant woman on whom the abortion is to be performed of:
(A) the physician's name;
(B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
(i) the risks of infection and hemorrhage;
(ii) the potential danger to a subsequent pregnancy and of infertility; and
(iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;
(C) the probable gestational age of the unborn child at the time the abortion is to be performed; and
(D) the medical risks associated with carrying the child to term;
(2) the physician who is to perform the abortion or the physician's agent informs the pregnant woman that:
(A) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;
(B) the father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion; and
(C) public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest;
(3) the physician who is to perform the abortion or the physician's agent:
(A) provides the pregnant woman with the printed materials described by Section 171.014; and
(B) informs the pregnant woman that those materials:
(i) have been provided by the Department of State Health Services;
(ii) are accessible on an Internet website sponsored by the department;
(iii) describe the unborn child and list agencies that offer alternatives to abortion; and
(iv) include a list of agencies that offer sonogram services at no cost to the pregnant woman;
(4) before any sedative or anesthesia is administered to the pregnant woman and at least 24 hours before the abortion or at least two hours before the abortion if the pregnant woman waives this requirement by certifying that she currently lives 100 miles or more from the nearest abortion provider that is a facility licensed under Chapter 245 or a facility that performs more than 50 abortions in any 12-month period:
(A) the physician who is to perform the abortion or an agent of the physician who is also a sonographer certified by a national registry of medical sonographers performs a sonogram on the pregnant woman on whom the abortion is to be performed;
(B) the physician who is to perform the abortion displays the sonogram images in a quality consistent with current medical practice in a manner that the pregnant woman may view them;
(C) the physician who is to perform the abortion provides, in a manner understandable to a layperson, a verbal explanation of the results of the sonogram images, including a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs; and
(D) the physician who is to perform the abortion or an agent of the physician who is also a sonographer certified by a national registry of medical sonographers makes audible the heart auscultation for the pregnant woman to hear, if present, in a quality consistent with current medical practice and provides, in a manner understandable to a layperson, a simultaneous verbal explanation of the heart auscultation;
(5) before receiving a sonogram under Subdivision (4)(A) and before the abortion is performed and before any sedative or anesthesia is administered, the pregnant woman completes and certifies with her signature an election form that states as follows:
"ABORTION AND SONOGRAM ELECTION
(1) THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN PROVIDED AND EXPLAINED TO ME.
(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN ABORTION.
(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR TO RECEIVING AN ABORTION.
(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE SONOGRAM IMAGES.
(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE HEARTBEAT.
(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY CODE.
___ MY FETUS HAS AN IRREVERSIBLE MEDICAL CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.
(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND WITHOUT COERCION.
(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE. MY PLACE OF RESIDENCE IS:__________.
________________________________________SIGNATURE DATE";
(6) before the abortion is performed, the physician who is to perform the abortion receives a copy of the signed, written certification required by Subdivision (5); and
(7) the pregnant woman is provided the name of each person who provides or explains the information required under this subsection.
(a-1) During a visit made to a facility to fulfill the requirements of Subsection (a), the facility and any person at the facility may not accept any form of payment, deposit, or exchange or make any financial agreement for an abortion or abortion-related services other than for payment of a service required by Subsection (a). The amount charged for a service required by Subsection (a) may not exceed the reimbursement rate established for the service by the executive commissioner for statewide medical reimbursement programs.
(b) The information required to be provided under Subsections (a)(1) and (2) may not be provided by audio or video recording and must be provided at least 24 hours before the abortion is to be performed:
(1) orally and in person in a private and confidential setting if the pregnant woman currently lives less than 100 miles from the nearest abortion provider that is a facility licensed under Chapter 245 or a facility that performs more than 50 abortions in any 12-month period; or
(2) orally by telephone or in person in a private and confidential setting if the pregnant woman certifies that the woman currently lives 100 miles or more from the nearest abortion provider that is a facility licensed under Chapter 245 or a facility that performs more than 50 abortions in any 12-month period.
(c) When providing the information under Subsection (a)(3), the physician or the physician's agent must provide the pregnant woman with the address of the Internet website on which the printed materials described by Section 171.014 may be viewed as required by Section 171.014(e).
(d) The information provided to the woman under Subsection (a)(2)(B) must include, based on information available from the Office of the Attorney General and the United States Department of Health and Human Services Office of Child Support Enforcement for the three-year period preceding the publication of the information, information regarding the statistical likelihood of collecting child support.
(e) The department is not required to republish informational materials described by Subsection (a)(2)(B) because of a change in information described by Subsection (d) unless the statistical information in the materials changes by five percent or more.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 2, eff. September 1, 2011.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0518, eff. April 2, 2015.
Sec. 171.0121. MEDICAL RECORD. (a) Before the abortion begins, a copy of the signed, written certification received by the physician under Section 171.012(a)(6) must be placed in the pregnant woman's medical records.
(b) A copy of the signed, written certification required under Sections 171.012(a)(5) and (6) shall be retained by the facility where the abortion is performed until:
(1) the seventh anniversary of the date it is signed; or
(2) if the pregnant woman is a minor, the later of:
(A) the seventh anniversary of the date it is signed; or
(B) the woman's 21st birthday.
Added by Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 3, eff. September 1, 2011.
Sec. 171.0122. VIEWING PRINTED MATERIALS AND SONOGRAM IMAGE; HEARING HEART AUSCULTATION OR VERBAL EXPLANATION. (a) A pregnant woman may choose not to view the printed materials provided under Section 171.012(a)(3) after she has been provided the materials.
(b) A pregnant woman may choose not to view the sonogram images required to be provided to and reviewed with the pregnant woman under Section 171.012(a)(4).
(c) A pregnant woman may choose not to hear the heart auscultation required to be provided to and reviewed with the pregnant woman under Section 171.012(a)(4).
(d) A pregnant woman may choose not to receive the verbal explanation of the results of the sonogram images under Section 171.012(a)(4)(C) if:
(1) the woman's pregnancy is a result of a sexual assault, incest, or other violation of the Penal Code that has been reported to law enforcement authorities or that has not been reported because she has a reason that she declines to reveal because she reasonably believes that to do so would put her at risk of retaliation resulting in serious bodily injury;
(2) the woman is a minor and obtaining an abortion in accordance with judicial bypass procedures under Chapter 33, Family Code; or
(3) the fetus has an irreversible medical condition or abnormality, as previously identified by reliable diagnostic procedures and documented in the woman's medical file.
(e) The physician and the pregnant woman are not subject to a penalty under this chapter solely because the pregnant woman chooses not to view the printed materials or the sonogram images, hear the heart auscultation, or receive the verbal explanation, if waived as provided by this section.
Added by Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 3, eff. September 1, 2011.
Sec. 171.0123. PATERNITY AND CHILD SUPPORT INFORMATION. If, after being provided with a sonogram and the information required under this subchapter, the pregnant woman chooses not to have an abortion, the physician or an agent of the physician shall provide the pregnant woman with a publication developed by the Title IV-D agency that provides information about paternity establishment and child support, including:
(1) the steps necessary for unmarried parents to establish legal paternity;
(2) the benefits of paternity establishment for children;
(3) the steps necessary to obtain a child support order;
(4) the benefits of establishing a legal parenting order; and
(5) financial and legal responsibilities of parenting.
Added by Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 3, eff. September 1, 2011.
Sec. 171.0124. EXCEPTION FOR MEDICAL EMERGENCY. A physician may perform an abortion without obtaining informed consent under this subchapter in a medical emergency. A physician who performs an abortion in a medical emergency shall:
(1) include in the patient's medical records a statement signed by the physician certifying the nature of the medical emergency; and
(2) not later than the 30th day after the date the abortion is performed, certify to the department the specific medical condition that constituted the emergency.
Added by Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 3, eff. September 1, 2011.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0519, eff. April 2, 2015.
Sec. 171.013. DISTRIBUTION OF STATE MATERIALS. (a) The physician or the physician's agent shall furnish copies of the materials described by Section 171.014 to the pregnant woman at least 24 hours before the abortion is to be performed and shall direct the pregnant woman to the Internet website required to be published under Section 171.014(e). The physician or the physician's agent may furnish the materials to the pregnant woman by mail if the materials are mailed, restricted delivery to addressee, at least 72 hours before the abortion is to be performed.
(b) A physician or the physician's agent is not required to furnish copies of the materials if the woman provides the physician with a written statement that she chooses to view the materials on the Internet website sponsored by the department.
(c) The physician and the physician's agent may disassociate themselves from the materials and may choose to comment on the materials or to refrain from commenting.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 4, eff. September 1, 2011.
Sec. 171.014. INFORMATIONAL MATERIALS. (a) The department shall publish informational materials that include:
(1) the information required to be provided under Sections 171.012(a)(1)(B) and (D) and (a)(2)(A), (B), and (C); and
(2) the materials required by Sections 171.015 and 171.016.
(b) The materials shall be published in:
(1) English and Spanish;
(2) an easily comprehensible form; and
(3) a typeface large enough to be clearly legible.
(c) The materials shall be available at no cost from the department on request. The department shall provide appropriate quantities of the materials to any person.
(d) The department shall annually review the materials to determine if changes to the contents of the materials are necessary. The executive commissioner shall adopt rules necessary for considering and making changes to the materials.
(e) The department shall develop and maintain an Internet website to display the information required to be published under this section. In developing and maintaining the website the department shall, to the extent reasonably practicable, safeguard the website against alterations by anyone other than the department and shall monitor the website each day to prevent and correct tampering. The department shall ensure that the website does not collect or maintain information regarding access to the website.
(f) In addition to any other organization or entity, the department shall use the American College of Obstetricians and Gynecologists as the resource in developing information required to be provided under Sections 171.012(a)(1)(B) and (D), Sections 171.012(a)(2)(A), (B), and (C), and Section 171.016, and in maintaining the department's Internet website.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 3.0520, eff. April 2, 2015.
Sec. 171.015. INFORMATION RELATING TO PUBLIC AND PRIVATE AGENCIES. The informational materials must include:
(1) geographically indexed materials designed to inform the pregnant woman of public and private agencies and services that:
(A) are available to assist a woman through pregnancy, childbirth, and the child's dependency, including:
(i) a comprehensive list of adoption agencies;
(ii) a description of the services the adoption agencies offer;
(iii) a description of the manner, including telephone numbers, in which an adoption agency may be contacted; and
(iv) a comprehensive list of agencies and organizations that offer sonogram services at no cost to the pregnant woman;
(B) do not provide abortions or abortion-related services or make referrals to abortion providers; and
(C) are not affiliated with organizations that provide abortions or abortion-related services or make referrals to abortion providers; and
(2) a toll-free, 24-hour telephone number that may be called to obtain an oral list and description of agencies described by Subdivision (1) that are located near the caller and of the services the agencies offer.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 73 (H.B. 15), Sec. 5, eff. September 1, 2011.
Sec. 171.016. INFORMATION RELATING TO CHARACTERISTICS OF UNBORN CHILD. (a) The informational materials must include materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child's survival.
(b) The materials must include color pictures representing the development of the child at two-week gestational increments. The pictures must contain the dimensions of the unborn child and must be realistic.
(c) The materials provided under this section must be objective and nonjudgmental and be designed to convey only accurate scientific information about the unborn child at the various gestational ages.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Sec. 171.017. PERIODS RUN CONCURRENTLY. If the woman is an unemancipated minor subject to Chapter 33, Family Code, the 24-hour periods established under Sections 171.012(b) and 171.013(a) may run concurrently with the period during which actual or constructive notice is provided under Section 33.002, Family Code.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
Sec. 171.018. OFFENSE. A physician who intentionally performs an abortion on a woman in violation of this subchapter commits an offense. An offense under this section is a misdemeanor punishable by a fine not to exceed $10,000. In this section, "intentionally" has the meaning assigned by Section 6.03(a), Penal Code.
Added by Acts 2003, 78th Leg., ch. 999, Sec. 1, eff. Sept. 1, 2003.
SUBCHAPTER C. ABORTION PROHIBITED AT OR AFTER 20 WEEKS POST-FERTILIZATION
Sec. 171.041. SHORT TITLE. This subchapter may be cited as the Preborn Pain Act.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.042. DEFINITIONS. In this subchapter:
(1) "Post-fertilization age" means the age of the unborn child as calculated from the fusion of a human spermatozoon with a human ovum.
(2) "Severe fetal abnormality" has the meaning assigned by Section 285.202.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.043. DETERMINATION OF POST-FERTILIZATION AGE REQUIRED. Except as otherwise provided by Section 171.046, a physician may not perform or induce or attempt to perform or induce an abortion without, prior to the procedure:
(1) making a determination of the probable post-fertilization age of the unborn child; or
(2) possessing and relying on a determination of the probable post-fertilization age of the unborn child made by another physician.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.044. ABORTION OF UNBORN CHILD OF 20 OR MORE WEEKS POST-FERTILIZATION AGE PROHIBITED. Except as otherwise provided by Section 171.046, a person may not perform or induce or attempt to perform or induce an abortion on a woman if it has been determined, by the physician performing, inducing, or attempting to perform or induce the abortion or by another physician on whose determination that physician relies, that the probable post-fertilization age of the unborn child is 20 or more weeks.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.045. METHOD OF ABORTION. (a) This section applies only to an abortion authorized under Section 171.046(a)(1) or (2) in which:
(1) the probable post-fertilization age of the unborn child is 20 or more weeks; or
(2) the probable post-fertilization age of the unborn child has not been determined but could reasonably be 20 or more weeks.
(b) Except as otherwise provided by Section 171.046(a)(3), a physician performing an abortion under Subsection (a) shall terminate the pregnancy in the manner that, in the physician's reasonable medical judgment, provides the best opportunity for the unborn child to survive.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.046. EXCEPTIONS. (a) The prohibitions and requirements under Sections 171.043, 171.044, and 171.045(b) do not apply to an abortion performed if there exists a condition that, in the physician's reasonable medical judgment, so complicates the medical condition of the woman that, to avert the woman's death or a serious risk of substantial and irreversible physical impairment of a major bodily function, other than a psychological condition, it necessitates, as applicable:
(1) the immediate abortion of her pregnancy without the delay necessary to determine the probable post-fertilization age of the unborn child;
(2) the abortion of her pregnancy even though the post-fertilization age of the unborn child is 20 or more weeks; or
(3) the use of a method of abortion other than a method described by Section 171.045(b).
(b) A physician may not take an action authorized under Subsection (a) if the risk of death or a substantial and irreversible physical impairment of a major bodily function arises from a claim or diagnosis that the woman will engage in conduct that may result in her death or in substantial and irreversible physical impairment of a major bodily function.
(c) The prohibitions and requirements under Sections 171.043, 171.044, and 171.045(b) do not apply to an abortion performed on an unborn child who has a severe fetal abnormality.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.047. PROTECTION OF PRIVACY IN COURT PROCEEDINGS. (a) Except as otherwise provided by this section, in a civil or criminal proceeding or action involving an act prohibited under this subchapter, the identity of the woman on whom an abortion has been performed or induced or attempted to be performed or induced is not subject to public disclosure if the woman does not give consent to disclosure.
(b) Unless the court makes a ruling under Subsection (c) to allow disclosure of the woman's identity, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to protect the woman's identity from public disclosure.
(c) A court may order the disclosure of information that is confidential under this section if:
(1) a motion is filed with the court requesting release of the information and a hearing on that request;
(2) notice of the hearing is served on each interested party; and
(3) the court determines after the hearing and an in camera review that disclosure is essential to the administration of justice and there is no reasonable alternative to disclosure.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.048. 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.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
SUBCHAPTER D. ABORTION-INDUCING DRUGS
Sec. 171.061. DEFINITIONS. In this subchapter:
(1) "Abortion" has the meaning assigned by Section 245.002. This definition, as applied in this subchapter, may not be construed to apply to an act done with the intent to treat a maternal disease or illness for which a prescribed drug, medicine, or other substance is indicated.
(2) "Abortion-inducing drug" means a drug, a medicine, or any other substance, including a regimen of two or more drugs, medicines, or substances, prescribed, dispensed, or administered with the intent of terminating a clinically diagnosable pregnancy of a woman and with knowledge that the termination will, with reasonable likelihood, cause the death of the woman's unborn child. The term includes off-label use of drugs, medicines, or other substances known to have abortion-inducing properties that are prescribed, dispensed, or administered with the intent of causing an abortion, including the Mifeprex regimen. The term does not include a drug, medicine, or other substance that may be known to cause an abortion but is prescribed, dispensed, or administered for other medical reasons.
(3) "Final printed label" or "FPL" means the informational document approved by the United States Food and Drug Administration for an abortion-inducing drug that:
(A) outlines the protocol authorized by that agency and agreed to by the drug company applying for authorization of the drug by that agency; and
(B) delineates how a drug is to be used according to approval by that agency.
(4) "Gestational age" means the amount of time that has elapsed since the first day of a woman's last menstrual period.
(5) "Medical abortion" means the administration or use of an abortion-inducing drug to induce an abortion.
(6) "Mifeprex regimen," "RU-486 regimen," or "RU-486" means the abortion-inducing drug regimen approved by the United States Food and Drug Administration that consists of administering mifepristone and misoprostol.
(7) "Physician" means an individual who is licensed to practice medicine in this state, including a medical doctor and a doctor of osteopathic medicine.
(8) "Pregnant" means the female reproductive condition of having an unborn child in a woman's uterus.
(9) "Unborn child" means an offspring of human beings from conception until birth.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 5, eff. September 1, 2017.
Sec. 171.062. ENFORCEMENT BY TEXAS MEDICAL BOARD. Notwithstanding Section 171.005, the Texas Medical Board shall enforce this subchapter.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.063. DISTRIBUTION OF ABORTION-INDUCING DRUG. (a) A person may not knowingly give, sell, dispense, administer, provide, or prescribe an abortion-inducing drug to a pregnant woman for the purpose of inducing an abortion in the pregnant woman or enabling another person to induce an abortion in the pregnant woman unless:
(1) the person who gives, sells, dispenses, administers, provides, or prescribes the abortion-inducing drug is a physician; and
(2) except as otherwise provided by Subsection (b), the provision, prescription, or administration of the abortion-inducing drug satisfies the protocol tested and authorized by the United States Food and Drug Administration as outlined in the final printed label of the abortion-inducing drug.
(b) A person may provide, prescribe, or administer the abortion-inducing drug in the dosage amount prescribed by the clinical management guidelines defined by the American Congress of Obstetricians and Gynecologists Practice Bulletin as those guidelines existed on January 1, 2013.
(c) Before the physician gives, sells, dispenses, administers, provides, or prescribes an abortion-inducing drug, the physician must examine the pregnant woman and document, in the woman's medical record, the gestational age and intrauterine location of the pregnancy.
(d) The physician who gives, sells, dispenses, administers, provides, or prescribes an abortion-inducing drug shall provide the pregnant woman with:
(1) a copy of the final printed label of that abortion-inducing drug; and
(2) a telephone number by which the pregnant woman may reach the physician, or other health care personnel employed by the physician or by the facility at which the abortion was performed with access to the woman's relevant medical records, 24 hours a day to request assistance for any complications that arise from the administration or use of the drug or ask health-related questions regarding the administration or use of the drug.
(e) The physician who gives, sells, dispenses, administers, provides, or prescribes the abortion-inducing drug, or the physician's agent, must schedule a follow-up visit for the woman to occur not more than 14 days after the administration or use of the drug. At the follow-up visit, the physician must:
(1) confirm that the pregnancy is completely terminated; and
(2) assess the degree of bleeding.
(f) The physician who gives, sells, dispenses, administers, provides, or prescribes the abortion-inducing drug, or the physician's agent, shall make a reasonable effort to ensure that the woman returns for the scheduled follow-up visit under Subsection (e). The physician or the physician's agent shall document a brief description of any effort made to comply with this subsection, including the date, time, and name of the person making the effort, in the woman's medical record.
(g) If a physician gives, sells, dispenses, administers, provides, or prescribes an abortion-inducing drug to a pregnant woman for the purpose of inducing an abortion as authorized by this section and the physician knows that the woman experiences a serious adverse event, as defined by the MedWatch Reporting System, during or after the administration or use of the drug, the physician shall report the event to the United States Food and Drug Administration through the MedWatch Reporting System not later than the third day after the date the physician learns that the event occurred.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
Sec. 171.064. ADMINISTRATIVE PENALTY. (a) The Texas Medical Board may take disciplinary action under Chapter 164, Occupations Code, or assess an administrative penalty under Subchapter A, Chapter 165, Occupations Code, against a person who violates Section 171.063.
(b) A penalty may not be assessed under this section against a pregnant woman who receives a medical abortion.
Added by Acts 2013, 83rd Leg., 2nd C.S., Ch. 1, Sec. 3, eff. October 29, 2013.
SUBCHAPTER E. EDUCATION AND TRAINING PROGRAMS ON TRAFFICKING OF PERSONS FOR CERTAIN FACILITY PERSONNEL
Sec. 171.081. APPLICABILITY. This subchapter applies to each person who:
(1) is employed by, volunteers at, or performs services under contract with:
(A) an abortion facility licensed under Chapter 245; or
(B) an ambulatory surgical center licensed under Chapter 243 that performs more than 50 abortions in any 12-month period; and
(2) has direct contact with patients of the facility.
Added by Acts 2015, 84th Leg., R.S., Ch. 999 (H.B. 416), Sec. 1, eff. June 19, 2015.
Sec. 171.082. EDUCATION AND TRAINING PROGRAMS ON TRAFFICKING OF PERSONS. (a) The executive commissioner of the Health and Human Services Commission by rule shall require a person described by Section 171.081 to complete within a reasonable time after beginning work at the facility a training program to identify and assist victims of human trafficking.
(b) A training program under this section must use the standardized curriculum created by the human trafficking prevention task force under Section 402.035(d)(6), Government Code.
(c) The department shall make available to each facility described by Sections 171.081(1)(A) and (B) the training program required under this section.
Added by Acts 2015, 84th Leg., R.S., Ch. 999 (H.B. 416), Sec. 1, eff. June 19, 2015.
SUBCHAPTER F. PARTIAL-BIRTH ABORTIONS
Sec. 171.101. DEFINITIONS. In this subchapter:
(1) "Partial-birth abortion" means an abortion in which the person performing the abortion:
(A) for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus, deliberately and intentionally vaginally delivers a living fetus until:
(i) for a head-first presentation, the entire fetal head is outside the body of the mother; or
(ii) for a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother; and
(B) performs the overt act described in Paragraph (A), other than completion of delivery, that kills the partially delivered living fetus.
(2) "Physician" means an individual who is licensed to practice medicine in this state, including a medical doctor and a doctor of osteopathic medicine.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.102. PARTIAL-BIRTH ABORTIONS PROHIBITED. (a) A physician or other person may not knowingly perform a partial-birth abortion.
(b) Subsection (a) does not apply to a physician who performs a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.103. CRIMINAL PENALTY. A person who violates Section 171.102 commits an offense. An offense under this section is a state jail felony.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.104. CIVIL LIABILITY. (a) Except as provided by Subsection (b), the father of the fetus or a parent of the mother of the fetus, if the mother is younger than 18 years of age at the time of the partial-birth abortion, may bring a civil action to obtain appropriate relief, including:
(1) money damages for physical injury, mental anguish, and emotional distress; and
(2) exemplary damages equal to three times the cost of the partial-birth abortion.
(b) A person may not bring or maintain an action under this section if:
(1) the person consented to the partial-birth abortion; or
(2) the person's criminally injurious conduct resulted in the pregnancy.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.105. HEARING. (a) A physician who is the subject of a criminal or civil action for a violation of Section 171.102 may request a hearing before the Texas Medical Board on whether the physician's conduct was necessary to save the life of a mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy.
(b) The board's findings under Subsection (a) are admissible in any court proceeding against the physician arising from that conduct. On the physician's motion, the court shall delay the beginning of a criminal or civil trial for not more than 60 days for the hearing to be held under Subsection (a).
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.106. APPLICABILITY. A woman on whom a partial-birth abortion is performed or attempted in violation of this subchapter may not be prosecuted under this subchapter or for conspiracy to commit a violation of this subchapter.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
SUBCHAPTER G. DISMEMBERMENT ABORTIONS
Sec. 171.151. DEFINITION. In this subchapter, "dismemberment abortion" means an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child's body to cut or rip the piece from the body. The term does not include an abortion that uses suction to dismember the body of an unborn child by sucking pieces of the unborn child into a collection container. The term includes a dismemberment abortion that is used to cause the death of an unborn child and in which suction is subsequently used to extract pieces of the unborn child after the unborn child's death.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.152. DISMEMBERMENT ABORTIONS PROHIBITED. (a) A person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency.
(b) A woman on whom a dismemberment abortion is performed, an employee or agent acting under the direction of a physician who performs a dismemberment abortion, or a person who fills a prescription or provides equipment used in a dismemberment abortion does not violate Subsection (a).
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.153. CRIMINAL PENALTY. (a) A person who violates Section 171.152 commits an offense.
(b) An offense under this section is a state jail felony.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
Sec. 171.154. CONSTRUCTION OF SUBCHAPTER. (a) This subchapter shall be construed, as a matter of state law, to be enforceable to the maximum possible extent consistent with but not further than 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 concerning the requirements of the state or federal constitution, unless the official is enjoined by a state or federal court from enforcing this subchapter.
(d) This subchapter may not be construed to:
(1) authorize the prosecution of or a cause of action to be brought against a woman on whom an abortion is performed or induced in violation of this subchapter; or
(2) create or recognize a right to abortion or a right to a particular method of abortion.
Added by Acts 2017, 85th Leg., R.S., Ch. 441 (S.B. 8), Sec. 6, eff. September 1, 2017.
