As a result of aggressive legislative action over the past several years, Texas has become one of the most protective states in the nation. In 2013, the legislature made national news after abortion proponents used mob tactics during a special legislative session that inhibited the legislature from passing commonsense abortion regulations. However, Governor Rick Perry called a second special legislative session, allowing the state time to pass an omnibus bill, with the assistance of AUL and others, that prohibits abortion at 5-months (i.e., 20-weeks) gestation, requires that abortion clinics meet the same patient care standards as other facilities performing outpatient surgeries, regulates the administration of abortion-inducing drugs, mandates that abortion providers have hospital admitting privileges.
- Texas possesses an enforceable abortion prohibition should the U.S. Constitution be amended or certain U.S. Supreme Court decisions be reversed or modified.
- Texas prohibits abortion at 5-months (i.e., 20-weeks) development based upon medical evidence that an unborn child at that stage can feel pain.
- Another law provides that third-trimester abortion may not be performed on a viable fetus unless necessary to preserve the woman’s life or prevent a “substantial risk of serious impairment” to her physical or mental health, or if the fetus has a severe and irreversible abnormality. An additional law provides that a third-trimester abortion may not be performed on a viable fetus unless necessary to prevent “severe, irreversible brain damage” to the woman, paralysis, or if the fetus has a severe and irreversible “brain impairment.”
- A physician may not perform an abortion on a woman until at least 24 hours after obtaining her informed consent and after informing her of the nature and risks of the proposed abortion procedure, including the gestational development of the unborn child and available assistance from both public and private agencies. Counseling must be in-person if a woman lives within 100 miles of the abortion facility.
- The state also explicitly requires a physician to inform a woman seeking abortion of the abortion-breast cancer link.
- Texas requires the performance of an ultrasound before an abortion. The abortion provider must display the ultrasound image, make audible the heart auscultation, and provide a medical description of the images depicted in the ultrasound image.
- Texas prohibits insurance companies from coercing a woman’s abortion decision through force or by threatening adverse alteration to an insurance plan.
- A physician may not perform an abortion on an unemancipated minor under the age of 18 without the written, notarized consent of one parent or a guardian, unless there is a medical emergency or the minor obtains a court order.
- Abortion clinics must meet the same patient care standards as other facilities performing outpatient surgeries.
- Only a physician licensed in Texas may perform an abortion. The abortion provider must also maintain hospital admitting privileges.
- The state has an enforceable abortion reporting law, but does not require the reporting of information to the Centers for Disease Control (CDC). The measure pertains to both surgical and nonsurgical abortions and requires abortion providers to report deaths that occur in their facilities as a result of abortion, as well as short-term complications.
- Texas follows the federal standard for Medicaid funding for abortions, only permitting the use of federal or state matching Medicaid funds for abortions necessary to preserve the life of the woman or when the pregnancy is the result of rape or incest
- The Texas Supreme Court has upheld a law limiting taxpayer assistance for abortion to cases where the abortion is necessary to preserve a woman’s life or when the pregnancy is the result of rape or incest.
- Funds administered under the “Maternal and Infant Health Improvement Program for Women and Children” cannot be used for abortions, except in cases of life endangerment.
- State agencies may not contract with entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions under a “Women’s Health Care Services” project (family planning funding).
- Texas has enacted laws prohibiting state contracts with entities that perform elective abortions. The restrictions have been challenged in state court but remain in force while the lawsuit proceeds.
- Texas requires that a physician examine a woman before providing abortion-inducing drugs.
- Texas requires that physicians providing “medical abortion” be able to do the following: accurately date a pregnancy, determine that the pregnancy is not ectopic, and provide surgical intervention or provide for the patient to receive a surgical abortion. The patient must be informed of the risks and benefits of the procedure and the possibility that a surgical abortion may be required. A 2013 law requiring a physician to examine a woman before dispensing abortion-inducing drugs and requiring the physician to follow a certain protocol has been challenged in federal court.
- Texas continues to allocate millions of dollars to the mission of pregnancy resource centers and others providing abortion alternatives.
- The state maintains a “Choose Life” license plate program, the proceeds of which benefit abortion alternatives
Legal Recognition and Protection of Unborn and Newly Born:
- Under Texas law, the killing of an unborn child at any stage of gestation is defined as a form of homicide.
- Texas defines a nonfatal assault on an unborn child as a criminal offense.
- Texas allows parents and other relatives to bring a wrongful death (civil) lawsuit when an unborn child at any stage of development is killed through the negligence or criminal act of another.
- Under Texas law, a “living human child born alive after an abortion or premature birth is entitled to the same rights, powers and privileges as are granted by the laws of [Texas] to any other child born alive after the normal gestational period.” Thus, the state has created a specific affirmative duty of physicians to provide medical care and treatment to infants born alive at any stage of development.
- The state defines substance abuse during pregnancy as “child abuse” under civil child-welfare statutes. The state has also created a task force charged, in part, with advising on potential criminal liability for a woman who exposes her unborn child to controlled substances.
- In 2009, Texas appropriated $5 million in state funding for adult stem-cell research.
- Texas does not prohibit human cloning or destructive embryo research. Further, it does not prohibit fetal experimentation outright, but it does include “fetal issue” in its ban on the sale or transfer of “human organs.”
- The state Department of State Health Services publishes a brochure related to umbilical cord blood donation, and physicians are to provide the brochure to their pregnant patients.
- Texas law provides that blood obtained by a blood bank may be used for the collection of adult stem cells if the donor consents and allows hospitals to use adult stem cells if certain conditions are met.
- Texas maintains no meaningful regulation of assisted reproductive technologies, but the “Uniform Parentage Act” does include “donation of embryos” in its definition of “assisted reproduction.”
End of Life Laws:
- Assisted suicide is a felony in Texas.
Healthcare Freedom of Conscience Laws:
Participation in Abortions:
- A physician, nurse, staff member, or employee of a hospital who objects to participating directly or indirectly in an abortion may not be required to participate in an abortion.
- A healthcare provider’s conscientious objection to participating in abortions may not be a basis for discrimination in employment or education. A person whose rights are violated may bring an action for relief, including back pay and reinstatement.
- A private hospital or healthcare facility is not required to make its facilities available for the performance of an abortion unless a physician determines that the woman’s life is immediately endangered.
Participation in Research Harmful to Human Life:
- Texas currently provides no protection for the rights of healthcare providers who conscientiously object to participation in human cloning, destructive embryo research, or other forms of medical research, which violate a provider’s moral or religious belief.
What happened in 2013:
- Texas enacted a requirement, inspired by AUL’s “Abortion Patient Enhanced Safety Act,” that abortion clinics meet the same patient care standards as other facilities performing outpatient surgeries. Similarly, the state enacted legislation requiring individual abortion providers to have hospital admitting privileges.
- Texas also enacted a measure, based on AUL’s “Abortion-Inducing Drugs Safety Act,” requiring a physician to examine a woman before dispensing abortion-inducing drugs.
- Texas enacted legislation prohibiting abortion at 5-months (i.e., 20-weeks) development based upon medical evidence that an unborn child at that stage can feel pain.
- The Texas House and Senate adopted a resolution commending pregnancy resource centers. The Texas House also specifically honored the Prestonwood Pregnancy Center in Dallas.
- Texas also considered legislation prohibiting sex-selection abortion, as well as measures related to abortion reporting, informed consent, coerced abortions, ultrasounds, parental involvement, abortion funding, and insurance coverage of abortion.
- Texas enacted legislation creating a body to provide grants or funds for ethical research. The measure also states that blood obtained by a blood bank may be used for the collection of adult stem cells if the donor consents and allows hospitals to use adult stem cells if certain conditions are met.
- The state also enacted legislation amending reporting requirements to include information on the amount spent by an institution of higher education on embryonic and adult stem-cell research.
- Texas considered several bills to address concerns that current Texas law permits healthcare providers to withdraw or withhold life-sustaining care against the wishes of a patient or his surrogate.
- Texas considered legislation offering or expanding protection for healthcare payers, but such legislation would not be enforceable against the so-called “HHS mandate” that requires nearly all health insurance plans to provide full coverage (without co-pay) of all “FDA approved contraceptives.” The state also considered legislation that would create a tax credit against state taxes in the event that the federal government fines an employer for offering insurance that does not include so-called “emergency contraception.”
Recommendations for Texas
Women’s Protection Project Priorities:
- Parental Involvement Enhancement Act
- Components of the Child Protection Act related to evidence retention and remedies for third-party interference with parental rights
- Abortion Mandate Opt-Out Act
- Prenatal Nondiscrimination Act
- Joint Resolution Commending Pregnancy Resource Centers
- Human Cloning Prohibition Act
- Destructive Embryo Research Act
- Prohibition on Public Funding of Human Cloning and Destructive Embryo Research Act
Healthcare Freedom of Conscience:
- Healthcare Freedom of Conscience Act