Whole Woman's Health et al v. Jackson et al

Filing 1

COMPLAINT for Declaratory and Injunctive Relief - Class Action ( Filing fee $ 402 receipt number 0542-15003772). No Summons requested at this time, filed by Southwestern Women's Surgery Center, Erika Forbes, Houston Women's Reproductive Services, Fund Texas Choice, Alamo City Surgery Center PLLC, Daniel Kanter, Whole Woman's Health, Jane's Due Process, Marva Sadler, Frontera Fund, Allison Gilbert, Houston Women's Clinic, Alamo Women's Reproductive Services, Planned Parenthood of Greater Texas Surgical Health Services, Whole Women's Health Alliance, The Afiya Center, Bhavik Kumar, North Texas Equal Access Fund, Planned Parenthood Center for Choice, Brookside Women's Medical Center PA, Planned Parenthood South Texas Surgical Center, Lilith Fund, Inc., Brookside Women's Health Center and Austin Women's Health Center. (Attachments: #1 Exhibit 1, #2 Civil Cover Sheet)(Hebert, Christen)

Exhibit 1

S.B.ANo.A8

1

AN ACT

2

relating to abortion, including abortions after detection of an

3

unborn child ’s heartbeat; authorizing a private civil right of

4

action.

5

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

6

SECTIONA1.AAThis Act shall be known as the Texas Heartbeat

7

Act.
SECTIONA2.AAThe legislature finds that the State of Texas

8
9

never

repealed,

either

expressly

or

by

implication,

the

state

10

statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113

11

(1973), that prohibit and criminalize abortion unless the mother ’s

12

life is in danger.
SECTIONA3.AAChapter 171, Health and Safety Code, is amended

13
14

by adding Subchapter H to read as follows:
SUBCHAPTER H.

15

DETECTION OF FETAL HEARTBEAT

Sec.A171.201.AADEFINITIONS.

16

In this subchapter:

(1)AA"Fetal heartbeat" means cardiac activity or the

17
18

steady

19

within the gestational sac.

repetitive

rhythmic

contraction

of

the

fetal

heart

(2)AA"Gestational age" means the amount of time that

20
21

and

has elapsed from the first day of a woman ’s last menstrual period.

22

(3)AA"Gestational sac" means the structure comprising

23

the extraembryonic membranes that envelop the unborn child and that

24

is

typically

visible

by

ultrasound

1

after

the

fourth

week

of

S.B.ANo.A8
1

pregnancy.
(4)AA"Physician"

2

means

an

individual

licensed

to

3

practice medicine in this state, including a medical doctor and a

4

doctor of osteopathic medicine.
(5)AA"Pregnancy" means the human female reproductive

5
6

condition that:

7

(A)AAbegins with fertilization;

8

(B)AAoccurs

9

the

woman

is

carrying

the

developing human offspring; and
(C)AAis

10
11

when

calculated

from

the

first

day

of

the

woman ’s last menstrual period.
(6)AA"Standard medical practice" means the degree of

12
13

skill,

14

judgment, learning, and skill would employ in like circumstances.

15

care,

and

diligence

that

an

obstetrician

of

ordinary

(7)AA"Unborn child" means a human fetus or embryo in any

16

stage of gestation from fertilization until birth.

17

Sec.A171.202.AALEGISLATIVE FINDINGS.

18

according to contemporary medical research, that:

19
20
21

The legislature finds,

(1)AAfetal heartbeat has become a key medical predictor
that an unborn child will reach live birth;
(2)AAcardiac
moment

in

activity

22

identifiable

time,

23

begins

normally

at

when

a

the

biologically

fetal

heart

is

formed in the gestational sac;

24

(3)AATexas has compelling interests from the outset of

25

a woman ’s pregnancy in protecting the health of the woman and the

26

life of the unborn child; and

27

(4)AAto

make

an

informed

2

choice

about

whether

to

S.B.ANo.A8
1

continue

her

pregnancy,

the

pregnant

woman

has

a

compelling

2

interest in knowing the likelihood of her unborn child surviving to

3

full-term birth based on the presence of cardiac activity.
Sec.A171.203.AADETERMINATION OF PRESENCE OF FETAL HEARTBEAT

4
5

REQUIRED;

RECORD.

(a)AAFor

6

presence of a fetal heartbeat under this section, "standard medical

7

practice" includes employing the appropriate means of detecting the

8

heartbeat based on the estimated gestational age of the unborn

9

child and the condition of the woman and her pregnancy.

the

purposes

of

determining

the

10

(b)AAExcept as provided by Section 171.205, a physician may

11

not knowingly perform or induce an abortion on a pregnant woman

12

unless

13

section, whether the woman ’s unborn child has a detectable fetal

14

heartbeat.
making

has

a

determined,

determination

in

accordance

under

with

Subsection

this

(b),

the

faith

and

physician must use a test that is:
(1)AAconsistent

17
18

physician

(c)AAIn

15
16

the

with

the

physician ’s

good

reasonable understanding of standard medical practice; and

19

(2)AAappropriate for the estimated gestational age of

20

the unborn child and the condition of the pregnant woman and her

21

pregnancy.
(d)AAA physician making a determination under Subsection (b)

22
23

shall record in the pregnant woman ’s medical record:

24

(1)AAthe estimated gestational age of the unborn child;

25

(2)AAthe method used to estimate the gestational age;

26
27

and
(3)AAthe test used for detecting a fetal heartbeat,

3

S.B.ANo.A8
1
2

including the date, time, and results of the test.
Sec.A171.204.AAPROHIBITED

ABORTION

OF

UNBORN

CHILD

WITH

(a)AAExcept as provided by

3

DETECTABLE FETAL HEARTBEAT; EFFECT.

4

Section 171.205, a physician may not knowingly perform or induce an

5

abortion on a pregnant woman if the physician detected a fetal

6

heartbeat for the unborn child as required by Section 171.203 or

7

failed to perform a test to detect a fetal heartbeat.

8
9
10
11

(b)AAA

physician

does

not

violate

this

section

if

the

physician performed a test for a fetal heartbeat as required by
Section 171.203 and did not detect a fetal heartbeat.
(c)AAThis section does not affect:

12

(1)AAthe provisions of this chapter that restrict or

13

regulate an abortion by a particular method or during a particular

14

stage of pregnancy; or

15
16
17

(2)AAany other provision of state law that regulates or
prohibits abortion.
Sec.A171.205.AAEXCEPTION
171.203

and

FOR

171.204

MEDICAL
do

not

EMERGENCY;
apply

if

a

RECORDS.
physician

18

(a)AASections

19

believes a medical emergency exists that prevents compliance with

20

this subchapter.

21

(b)AAA physician who performs or induces an abortion under

22

circumstances

23

notations in the pregnant woman ’s medical record of:

24
25
26
27

described

by

Subsection

(a)

shall

make

written

(1)AAthe physician ’s belief that a medical emergency
necessitated the abortion; and
(2)AAthe medical condition of the pregnant woman that
prevented compliance with this subchapter.

4

S.B.ANo.A8
1

(c)AAA physician performing or inducing an abortion under

2

this section shall maintain in the physician ’s practice records a

3

copy of the notations made under Subsection (b).

4

Sec.A171.206.AACONSTRUCTION

OF

SUBCHAPTER.

(a)AAThis

5

subchapter does not create or recognize a right to abortion before a

6

fetal heartbeat is detected.

7

(b)AAThis subchapter may not be construed to:
(1)AAauthorize

8
9

against

or

the

the

prosecution

initiation

of

a

woman

of

on

a

cause

whom

an

of

action

abortion

is

10

performed or induced or attempted to be performed or induced in

11

violation of this subchapter;
(2)AAwholly or partly repeal, either expressly or by

12
13

implication,

any

other

statute

that

regulates

or

prohibits

14

abortion, including Chapter 6-1/2, Title 71, Revised Statutes; or

15

(3)AArestrict a political subdivision from regulating

16

or prohibiting abortion in a manner that is at least as stringent as

17

the laws of this state.

18

ON

Sec.A171.207.AALIMITATIONS

PUBLIC

ENFORCEMENT.

19

(a)AANotwithstanding

20

requirements

21

through the private civil actions described in Section 171.208.

22

enforcement of this subchapter, and no enforcement of Chapters 19

23

and 22, Penal Code, in response to violations of this subchapter,

24

may be taken or threatened by this state, a political subdivision, a

25

district or county attorney, or an executive or administrative

26

officer

27

against any person, except as provided in Section 171.208.

or

of

this

employee

Section

171.005

subchapter

of

this

shall

state

5

or

or
be

a

any

other

enforced

political

law,

the

exclusively
No

subdivision

S.B.ANo.A8
(b)AASubsection (a) may not be construed to:

1

(1)AAlegalize the conduct prohibited by this subchapter

2
3

or by Chapter 6-1/2, Title 71, Revised Statutes;
(2)AAlimit in any way or affect the availability of a

4
5

remedy established by Section 171.208; or
(3)AAlimit the enforceability of any other laws that

6
7

regulate or prohibit abortion.
Sec.A171.208.AACIVIL LIABILITY FOR VIOLATION OR AIDING OR

8
9

ABETTING VIOLATION.

(a)AAAny person, other than an officer or

10

employee of a state or local governmental entity in this state, may

11

bring a civil action against any person who:
(1)AAperforms or induces an abortion in violation of

12
13

this subchapter;

14

(2)AAknowingly engages in conduct that aids or abets

15

the performance or inducement of an abortion, including paying for

16

or

17

otherwise, if the abortion is performed or induced in violation of

18

this subchapter, regardless of whether the person knew or should

19

have

20

violation of this subchapter; or

21
22
23
24
25

reimbursing

known

that

the

the

costs

of

an

abortion

(3)AAintends

to

abortion

would

engage

be

in

through

performed

the

conduct

insurance

or

or

induced

in

described

by

Subdivision (1) or (2).
(b)AAIf a claimant prevails in an action brought under this
section, the court shall award:
(1)AAinjunctive

relief

sufficient

to

prevent

the

26

defendant from violating this subchapter or engaging in acts that

27

aid or abet violations of this subchapter;

6

S.B.ANo.A8
1

(2)AAstatutory damages in an amount of not less than

2

$10,000 for each abortion that the defendant performed or induced

3

in violation of this subchapter, and for each abortion performed or

4

induced in violation of this subchapter that the defendant aided or

5

abetted; and
(3)AAcosts and attorney ’s fees.

6
7

(c)AANotwithstanding Subsection (b), a court may not award

8

relief under this section in response to a violation of Subsection

9

(a)(1) or (2) if the defendant demonstrates that the defendant

10

previously

paid

the

full

amount

of

statutory

damages

under

11

Subsection (b)(2) in a previous action for that particular abortion

12

performed or induced in violation of this subchapter, or for the

13

particular conduct that aided or abetted an abortion performed or

14

induced in violation of this subchapter.

15

(d)AANotwithstanding Chapter 16, Civil Practice and Remedies

16

Code, or any other law, a person may bring an action under this

17

section not later than the fourth anniversary of the date the cause

18

of action accrues.

19
20

(e)AANotwithstanding any other law, the following are not a
defense to an action brought under this section:

21

(1)AAignorance or mistake of law;

22

(2)AAa defendant ’s belief that the requirements of this

23

subchapter are unconstitutional or were unconstitutional;

24

(3)AAa defendant ’s reliance on any court decision that

25

has been overruled on appeal or by a subsequent court, even if that

26

court decision had not been overruled when the defendant engaged in

27

conduct that violates this subchapter;

7

S.B.ANo.A8
(4)AAa

1

defendant ’s

reliance

on

any

state

or

federal

2

court decision that is not binding on the court in which the action

3

has been brought;
(5)AAnon-mutual issue preclusion or non-mutual claim

4
5

preclusion;
(6)AAthe consent of the unborn child ’s mother to the

6
7

abortion; or

8

(7)AAany claim that the enforcement of this subchapter

9

or the imposition of civil liability against the defendant will

10

violate

the

constitutional

11

rights

of

third

parties,

except

as

provided by Section 171.209.
(f)AAIt is an affirmative defense if:

12
13

(1)AAa person sued under Subsection (a)(2) reasonably

14

believed, after conducting a reasonable investigation, that the

15

physician performing or inducing the abortion had complied or would

16

comply with this subchapter; or

17

(2)AAa person sued under Subsection (a)(3) reasonably

18

believed, after conducting a reasonable investigation, that the

19

physician performing or inducing the abortion will comply with this

20

subchapter.

21

(f-1)AAThe defendant has the burden of proving an affirmative

22

defense under Subsection (f)(1) or (2) by a preponderance of the

23

evidence.

24

(g)AAThis section may not be construed to impose liability on

25

any speech or conduct protected by the First Amendment of the United

26

States Constitution, as made applicable to the states through the

27

United

States

Supreme

Court ’s

interpretation

8

of

the

Fourteenth

S.B.ANo.A8
1

Amendment

of

the

United

States

2

Article I, Texas Constitution.
(h)AANotwithstanding

3

any

Constitution,

other

law,

or

this

by

Section

state,

a

8,

state

4

official, or a district or county attorney may not intervene in an

5

action

6

prohibit

7

amicus curiae brief in the action.

brought
a

under

person

this

section.

described

by

this

This

subsection

subsection

from

does
filing

not
an

8

(i)AANotwithstanding any other law, a court may not award

9

costs or attorney ’s fees under the Texas Rules of Civil Procedure or

10

any other rule adopted by the supreme court under Section 22.004,

11

Government Code, to a defendant in an action brought under this

12

section.

13

(j)AANotwithstanding any other law, a civil action under this

14

section may not be brought by a person who impregnated the abortion

15

patient through an act of rape, sexual assault, incest, or any other

16

act prohibited by Sections 22.011, 22.021, or 25.02, Penal Code.

17

Sec.A171.209.AACIVIL

LIABILITY:

UNDUE

BURDEN

DEFENSE

(a)AAA defendant against whom an action is brought

18

LIMITATIONS.

19

under Section 171.208 does not have standing to assert the rights of

20

women seeking an abortion as a defense to liability under that

21

section unless:

22

(1)AAthe United States Supreme Court holds that the

23

courts of this state must confer standing on that defendant to

24

assert the third-party rights of women seeking an abortion in state

25

court as a matter of federal constitutional law; or

26

(2)AAthe defendant has standing to assert the rights of

27

women seeking an abortion under the tests for third-party standing

9

S.B.ANo.A8
1

established by the United States Supreme Court.

2

(b)AAA defendant in an action brought under Section 171.208

3

may assert an affirmative defense to liability under this section

4

if:
(1)AAthe

5

defendant

has

standing

to

assert

the

6

third-party rights of a woman or group of women seeking an abortion

7

in accordance with Subsection (a); and

8

(2)AAthe defendant demonstrates that the relief sought

9

by the claimant will impose an undue burden on that woman or that

10
11
12

group of women seeking an abortion.
(c)AAA court may not find an undue burden under Subsection
(b) unless the defendant introduces evidence proving that:
(1)AAan award of relief will prevent a woman or a group

13
14

of women from obtaining an abortion; or
(2)AAan

15

award

of

relief

will

place

a

substantial

16

obstacle in the path of a woman or a group of women who are seeking

17

an abortion.

18
19

(d)AAA defendant may not establish an undue burden under this
section by:

20

(1)AAmerely demonstrating that an award of relief will

21

prevent women from obtaining support or assistance, financial or

22

otherwise, from others in their effort to obtain an abortion; or

23

(2)AAarguing or attempting to demonstrate that an award

24

of relief against other defendants or other potential defendants

25

will impose an undue burden on women seeking an abortion.

26
27

(e)AAThe

affirmative

defense

under

Subsection

(b)

is

not

available if the United States Supreme Court overrules Roe v. Wade,

10

S.B.ANo.A8
1

410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833

2

(1992), regardless of whether the conduct on which the cause of

3

action is based under Section 171.208 occurred before the Supreme

4

Court overruled either of those decisions.

5

(f)AANothing

this

section

shall

defendant

from

asserting

as

defense

in

way

limit

s
defendant ’

or

personal

preclude

7

constitutional

8

171.208, and a court may not award relief under Section 171.208 if

9

the conduct for which the defendant has been sued was an exercise of

10

state or federal constitutional rights that personally belong to

11

the defendant.

rights

a

Sec.A171.210.AACIVIL
any

the

any

6

12

a

in

to

liability

under

LIABILITY:
other

law,

including

Section

VENUE.
Section

15.002,

13

(a)AANotwithstanding

14

Civil Practice and Remedies Code, a civil action brought under

15

Section 171.208 shall be brought in:

16
17
18
19
20
21
22
23

(1)AAthe county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2)AAthe county of residence for any one of the natural
person defendants at the time the cause of action accrued;
(3)AAthe county of the principal office in this state of
any one of the defendants that is not a natural person; or
(4)AAthe county of residence for the claimant if the
claimant is a natural person residing in this state.

24

(b)AAIf a civil action is brought under Section 171.208 in

25

any one of the venues described by Subsection (a), the action may

26

not be transferred to a different venue without the written consent

27

of all parties.

11

S.B.ANo.A8
Sec.A171.211.AASOVEREIGN,

1
2

IMMUNITY

PRESERVED.

3

GOVERNMENTAL,

(a)AAThis

section

AND

prevails

OFFICIAL
over

any

conflicting law, including:

4

(1)AAthe Uniform Declaratory Judgments Act; and

5

(2)AAChapter 37, Civil Practice and Remedies Code.
(b)AAThis

6

has

immunity,

employee of this state or a political subdivision has official

9

immunity in any action, claim, or counterclaim or any type of legal

10

or equitable action that challenges the validity of any provision

11

or

12

otherwise.

this

chapter,

on

and

each

political

8

of

immunity,

a

subdivision

application

governmental

sovereign

7

13

has

state

officer

constitutional

grounds

and

or

(c)AAA provision of state law may not be construed to waive or

14

abrogate

15

expressly waives immunity under this section.

16

an

immunity

described

Sec.A171.212.AASEVERABILITY.

by

Subsection

(a)AAMindful

(b)

unless

it

of

Leavitt

v.

17

Jane L., 518 U.S. 137 (1996), in which in the context of determining

18

the severability of a state statute regulating abortion the United

19

States Supreme Court held that an explicit statement of legislative

20

intent is controlling, it is the intent of the legislature that

21

every provision, section, subsection, sentence, clause, phrase, or

22

word in this chapter, and every application of the provisions in

23

this chapter, are severable from each other.

24

(b)AAIf any application of any provision in this chapter to

25

any person, group of persons, or circumstances is found by a court

26

to be invalid or unconstitutional, the remaining applications of

27

that provision to all other persons and circumstances shall be

12

S.B.ANo.A8
1

severed

and

may

not

be

affected.

All

constitutionally

valid

2

applications of this chapter shall be severed from any applications

3

that a court finds to be invalid, leaving the valid applications in

4

force, because it is the legislature ’s intent and priority that the

5

valid applications be allowed to stand alone.

6

court finds a provision of this chapter to impose an undue burden in

7

a large or substantial fraction of relevant cases, the applications

8

that do not present an undue burden shall be severed from the

9

remaining applications and shall remain in force, and shall be

10

treated as if the legislature had enacted a statute limited to the

11

persons, group of persons, or circumstances for which the statute ’s

12

application does not present an undue burden.

Even if a reviewing

13

(b-1)AAIf any court declares or finds a provision of this

14

chapter facially unconstitutional, when discrete applications of

15

that provision can be enforced against a person, group of persons,

16

or circumstances without violating the United States Constitution

17

and Texas Constitution, those applications shall be severed from

18

all remaining applications of the provision, and the provision

19

shall be interpreted as if the legislature had enacted a provision

20

limited to the persons, group of persons, or circumstances for

21

which

22

States Constitution and Texas Constitution.

23

the

provision ’s

(c)AAThe

application

legislature

further

will

not

declares

violate

the

that

would

it

United

have

24

enacted

25

sentence,

26

applications of this chapter, irrespective of the fact that any

27

provision, section, subsection, sentence, clause, phrase, or word,

this

chapter,

clause,

and

phrase,

each

provision,

or

word,

13

and

section,
all

subsection,

constitutional

S.B.ANo.A8
1

or

applications

of

this

chapter,

were

to

2

be

declared

unconstitutional or to represent an undue burden.
(d)AAIf any provision of this chapter is found by any court to

3
4

be

5

provision that do not present constitutional vagueness problems

6

shall be severed and remain in force.

7

unconstitutionally

(e)AANo

court

vague,

may

then

decline

the

to

applications

enforce

the

of

that

severability

8

requirements of Subsections (a), (b), (b-1), (c), and (d) on the

9

ground that severance would rewrite the statute or involve the

10

court in legislative or lawmaking activity.

11

to enforce or enjoins a state official from enforcing a statutory

12

provision does not rewrite a statute, as the statute continues to

13

contain the same words as before the court ’s decision.

14

injunction or declaration of unconstitutionality:

15

(1)AAis

nothing

more

than

A court that declines

an

edict

A judicial

prohibiting

16

enforcement that may subsequently be vacated by a later court if

17

that court has a different understanding of the requirements of the

18

Texas Constitution or United States Constitution;

19
20

(2)AAis not a formal amendment of the language in a
statute; and

21

(3)AAno more rewrites a statute than a decision by the

22

executive not to enforce a duly enacted statute in a limited and

23

defined set of circumstances.

24
25
26
27

SECTIONA4.AAChapter 30, Civil Practice and Remedies Code, is
amended by adding Section 30.022 to read as follows:
Sec.A30.022.AAAWARD
CHALLENGING ABORTION LAWS.

OF
(a)

ATTORNEY ’S

FEES

IN

ACTIONS

Notwithstanding any other law, any

14

S.B.ANo.A8
1

person,

2

declaratory or injunctive relief to prevent this state, a political

3

subdivision, any governmental entity or public official in this

4

state, or any person in this state from enforcing any statute,

5

ordinance,

6

regulates or restricts abortion or that limits taxpayer funding for

7

individuals or entities that perform or promote abortions, in any

8

state or federal court, or that represents any litigant seeking

9

such relief in any state or federal court, is jointly and severally

10

liable to pay the costs and attorney ’s fees of the prevailing party.

11

(b)AAFor purposes of this section, a party is considered a

12

including

rule,

an

entity,

regulation,

attorney,

or

any

or

law

other

firm,

type

who

of

seeks

law

that

prevailing party if a state or federal court:

13

(1)AAdismisses any claim or cause of action brought

14

against the party that seeks the declaratory or injunctive relief

15

described

16

dismissal; or

19

Subsection

(a),

regardless

of

the

reason

for

the

(2)AAenters judgment in the party ’s favor on any such

17
18

by

claim or cause of action.
(c)AARegardless

attorney ’s

fees

a

prevailing

in

the

party

underlying

sought
action,

to
a

recover

21

prevailing party under this section may bring a civil action to

22

recover costs and attorney ’s fees against a person, including an

23

entity,

24

injunctive relief described by Subsection (a) not later than the

25

third anniversary of the date on which, as applicable:

27

or

whether

20

26

costs

of

attorney,

or

law

firm,

that

sought

declaratory

or

(1)AAthe dismissal or judgment described by Subsection
(b) becomes final on the conclusion of appellate review; or

15

S.B.ANo.A8
(2)AAthe time for seeking appellate review expires.

1

is

not

2

(d)AAIt

3

a

defense

to

an

action

brought

under

Subsection (c) that:
(1)AAa prevailing party under this section failed to

4
5

seek recovery of costs or attorney ’s fees in the underlying action;
(2)AAthe court in the underlying action declined to

6
7

recognize or enforce the requirements of this section; or
(3)AAthe court in the underlying action held that any

8
9

provisions

of

this

section

are

invalid,

unconstitutional,

or

10

preempted by federal law, notwithstanding the doctrines of issue or

11

claim preclusion.

12
13
14

SECTIONA5.AASubchapter C, Chapter 311, Government Code, is
amended by adding Section 311.036 to read as follows:
Sec.A311.036.AACONSTRUCTION OF ABORTION STATUTES.

(a)AAA

15

statute that regulates or prohibits abortion may not be construed

16

to repeal any other statute that regulates or prohibits abortion,

17

either wholly or partly, unless the repealing statute explicitly

18

states that it is repealing the other statute.

19

(b)AAA statute may not be construed to restrict a political

20

subdivision from regulating or prohibiting abortion in a manner

21

that is at least as stringent as the laws of this state unless the

22

statute

23

prohibited from regulating or prohibiting abortion in the manner

24

described by the statute.

25

explicitly

states

that

political

subdivisions

are

(c)AAEvery statute that regulates or prohibits abortion is

26

severable

27

circumstance.

in

each

of

its

applications

to

every

person

and

If any statute that regulates or prohibits abortion

16

S.B.ANo.A8
1

is found by any court to be unconstitutional, either on its face or

2

as

3

violate the United States Constitution and Texas Constitution shall

4

be severed from the unconstitutional applications and shall remain

5

enforceable, notwithstanding any other law, and the statute shall

6

be interpreted as if containing language limiting the statute ’s

7

application to the persons, group of persons, or circumstances for

8

which the statute ’s application will not violate the United States

9

Constitution and Texas Constitution.

applied,

10
11

then

all

applications

SECTIONA6.AASection

171.005,

of

that

Health

statute

and

that

Safety

do

Code,

not

is

amended to read as follows:

12

Sec.A171.005.AACOMMISSION

[DEPARTMENT]

TO

ENFORCE;

13

EXCEPTION.

14

except

15

through the private civil enforcement actions described by Section

16

171.208 and may not be enforced by the commission.

17
18

The commission [department] shall enforce this chapter

for

Subchapter

H,

which

SECTIONA7.AASubchapter

A,

shall

Chapter

be

enforced

171,

Health

exclusively

and

Safety

Code, is amended by adding Section 171.008 to read as follows:

19

Sec.A171.008.AAREQUIRED DOCUMENTATION.

(a)AAIf an abortion

20

is performed or induced on a pregnant woman because of a medical

21

emergency, the physician who performs or induces the abortion shall

22

execute a written document that certifies the abortion is necessary

23

due

24

condition requiring the abortion.

25
26
27

to

a

medical

emergency

and

specifies

the

woman ’s

medical

(b)AAA physician shall:
(1)AAplace the document described by Subsection (a) in
the pregnant woman ’s medical record; and

17

S.B.ANo.A8
(2)AAmaintain

1
2

copy

of

the

document

described

by

Subsection (a) in the physician ’s practice records.
(c)AAA physician who performs or induces an abortion on a

3
4

a

pregnant woman shall:
(1)AAif

5
6

preserve

the

7

health

the

the

is

pregnant

performed
woman,

or

induced

execute

a

to

document that:

written

(A)AAspecifies the medical condition the abortion

8
9

of

abortion

is asserted to address; and
the

(B)AAprovides

10

medical

rationale

for

the

11

physician ’s conclusion that the abortion is necessary to address

12

the medical condition; or

13

(2)AAfor an abortion other than an abortion described

14

by Subdivision (1), specify in a written document that maternal

15

health is not a purpose of the abortion.
(d)AAThe

16
17

22

maintain

a

copy

of

a

document

SECTIONA8.AASection 171.012(a), Health and Safety Code, is
amended to read as follows:
(a)AAConsent to an abortion is voluntary and informed only

20
21

shall

described by Subsection (c) in the physician ’s practice records.

18
19

physician

if:
(1)AAthe

physician

who

is

to

perform

or

induce

the

23

abortion informs the pregnant woman on whom the abortion is to be

24

performed or induced of:

25

(A)AAthe physician ’s name;

26

(B)AAthe particular medical risks associated with

27

the particular abortion procedure to be employed, including, when

18

S.B.ANo.A8
1

medically accurate:

2

(i)AAthe risks of infection and hemorrhage;

3

(ii)AAthe potential danger to a subsequent

4

pregnancy and of infertility; and
(iii)AAthe possibility of increased risk of

5
6

breast

cancer

7

protective

8

cancer;

effect

pregnancy

and

in

the

avoiding

natural
breast

the child to term;
(2)AAthe

physician

who

is

to

perform

or

induce

the

abortion or the physician ’s agent informs the pregnant woman that:
(A)AAmedical assistance benefits may be available

15
16

completed

abortion

(D)AAthe medical risks associated with carrying

13
14

a

induced

child at the time the abortion is to be performed or induced; and

11
12

of

an

(C)AAthe probable gestational age of the unborn

9
10

following

for prenatal care, childbirth, and neonatal care;
(B)AAthe father is liable for assistance in the

17
18

support

of

the

child

without

19

offered to pay for the abortion; and
(C)AApublic

20

and

whether

private

father

agencies

provide

obtaining pregnancy prevention medications or devices, including

23

emergency contraception for victims of rape or incest;

25
26
27

who

is

medical

has

22

physician

and

the

pregnancy

(3)AAthe

counseling

to

21

24

prevention

regard

to

perform

referrals

or

induce

for

the

abortion or the physician ’s agent:
(A)AAprovides the pregnant woman with the printed
materials described by Section 171.014; and

19

S.B.ANo.A8
1
2

(B)AAinforms

that

those

provided

by

the

commission

(ii)AAare accessible on an Internet website
sponsored by the commission [department];
(iii)AAdescribe

the

unborn

child

and

list

agencies that offer alternatives to abortion; and

9
10

woman

[Department of State Health Services];

7
8

been

(i)AAhave

5
6

pregnant

materials:

3
4

the

(iv)AAinclude a list of agencies that offer
sonogram services at no cost to the pregnant woman;

11

(4)AAbefore any sedative or anesthesia is administered

12

to the pregnant woman and at least 24 hours before the abortion or

13

at least two hours before the abortion if the pregnant woman waives

14

this requirement by certifying that she currently lives 100 miles

15

or

16

licensed under Chapter 245 or a facility that performs more than 50

17

abortions in any 12-month period:

more

from

the

nearest

abortion

provider

that

is

a

facility

18

(A)AAthe physician who is to perform or induce the

19

abortion or an agent of the physician who is also a sonographer

20

certified by a national registry of medical sonographers performs a

21

sonogram

22

performed or induced;

on

the

pregnant

woman

on

whom

the

abortion

is

to

be

23

(B)AAthe physician who is to perform or induce the

24

abortion displays the sonogram images in a quality consistent with

25

current medical practice in a manner that the pregnant woman may

26

view them;

27

(C)AAthe physician who is to perform or induce the

20

S.B.ANo.A8
1

abortion provides, in a manner understandable to a layperson, a

2

verbal explanation of the results of the sonogram images, including

3

a medical description of the dimensions of the embryo or fetus, the

4

presence of cardiac activity, and the presence of external members

5

and internal organs; and

6

(D)AAthe physician who is to perform or induce the

7

abortion or an agent of the physician who is also a sonographer

8

certified by a national registry of medical sonographers makes

9

audible the heart auscultation for the pregnant woman to hear, if

10

present, in a quality consistent with current medical practice and

11

provides, in a manner understandable to a layperson, a simultaneous

12

verbal explanation of the heart auscultation;
(5)AAbefore

13

receiving

a

sonogram

under

Subdivision

14

(4)(A) and before the abortion is performed or induced and before

15

any sedative or anesthesia is administered, the pregnant woman

16

completes and certifies with her signature an election form that

17

states as follows:
"ABORTION AND SONOGRAM ELECTION

18
19

(1)AATHE INFORMATION AND PRINTED MATERIALS DESCRIBED BY

20

SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN

21

PROVIDED AND EXPLAINED TO ME.
(2)AAI UNDERSTAND THE NATURE AND CONSEQUENCES OF AN

22
23
24
25
26
27

ABORTION.
(3)AATEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR
TO RECEIVING AN ABORTION.
(4)AAI UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE
SONOGRAM IMAGES.

21

S.B.ANo.A8
1
2

(5)AAI UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE
HEARTBEAT.

3

(6)AAI UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN

4

EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO

5

ONE OF THE FOLLOWING:

6

___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT,

7

INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN

8

REPORTED

9

REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT

10

TO

LAW

ENFORCEMENT

AUTHORITIES

OR

THAT

HAS

NOT

BEEN

RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.

11

___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE

12

WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY

13

CODE.
___ MY UNBORN CHILD [FETUS] HAS AN IRREVERSIBLE MEDICAL

14
15

CONDITION

16

PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.

ABNORMALITY,

AS

IDENTIFIED

BY

RELIABLE

DIAGNOSTIC

(7)AAI AM MAKING THIS ELECTION OF MY OWN FREE WILL AND

17
18

OR

WITHOUT COERCION.

19

(8)AAFOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE

20

NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER

21

245, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE

22

THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:

23

I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR

24

MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED

25

UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS

26

IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS

27

AFTER

THE

SONOGRAM

IS

PERFORMED

22

BEFORE

RECEIVING

THE

ABORTION

S.B.ANo.A8
1

PROCEDURE. MY PLACE OF RESIDENCE IS:__________.

2

____________________

____________________

3

SIGNATUREAAAAAAAAAAAAAAAAAAAAAAAADATE";

4

(6)AAbefore the abortion is performed or induced, the

5

physician who is to perform or induce the abortion receives a copy

6

of the signed, written certification required by Subdivision (5);

7

and

8

(7)AAthe pregnant woman is provided the name of each

9

person who provides or explains the information required under this

10

subsection.
SECTIONA9.AASection 245.011(c), Health and Safety Code, is

11
12

amended to read as follows:
(c)AAThe report must include:

13

(1)AAwhether

14
15

abortion

facility

at

which

the

abortion is performed is licensed under this chapter;
(2)AAthe patient ’s year of birth, race, marital status,

16
17

the

and state and county of residence;

18

(3)AAthe type of abortion procedure;

19

(4)AAthe date the abortion was performed;

20

(5)AAwhether the patient survived the abortion, and if

21

the patient did not survive, the cause of death;

22

(6)AAthe probable post-fertilization age of the unborn

23

child based on the best medical judgment of the attending physician

24

at the time of the procedure;
(7)AAthe date, if known, of the patient ’s last menstrual

25
26
27

cycle;
(8)AAthe number of previous live births of the patient;

23

S.B.ANo.A8
1

[and]
(9)AAthe number of previous induced abortions of the

2
3

patient;
(10)AAwhether

4

the

abortion

was

performed

or

induced

5

because of a medical emergency and any medical condition of the

6

pregnant woman that required the abortion; and
(11)AAthe

7
8

information

required

under

Sections

171.008(a) and (c).

9

SECTIONA10.AAEvery

provision

in

this

Act

and

every

10

application of the provision in this Act are severable from each

11

other.

12

to any person, group of persons, or circumstance is held by a court

13

to be invalid, the invalidity does not affect the other provisions

14

or applications of this Act.

If any provision or application of any provision in this Act

15

SECTIONA11.AAThe change in law made by this Act applies only

16

to an abortion performed or induced on or after the effective date

17

of this Act.

18

SECTIONA12.AAThis Act takes effect September 1, 2021.

24

S.B.ANo.A8

______________________________AAAA______________________________
President of the SenateAAAAAAAAAAAAASpeaker of the House
I

hereby

certify

that

S.B.ANo.A8

MarchA30,A2021, by the following vote:

passed

the

Senate

on

YeasA19, NaysA12; and that

the Senate concurred in House amendments on MayA13,A2021, by the
following vote: YeasA18, NaysA12.

______________________________
AAAASecretary of the Senate
I

hereby

amendments,

on

certify

that

MayA6,A2021,

S.B.ANo.A8
by

the

passed

following

the

House,

vote:

with

YeasA83,

NaysA64, one present not voting.

______________________________
AAAAChief Clerk of the House

Approved:

______________________________
AAAAAAAAAAAAADate

______________________________
AAAAAAAAAAAGovernor

25