Geren’s Abortion Exception Bill Adds Blood-Type Testing

The text as introduced · 2,909 words

By: Geren
H.B. No. 44

A BILL TO BE ENTITLED

AN ACT

relating to exceptions to otherwise prohibited abortions based on a

physician's reasonable medical judgment.

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

SECTION 1. This Act may be cited as the Life of the Mother

Act.

SECTION 2. Amend Section 74.551, Civil Practice and

Remedies Code, to read as follows:

Sec. 74.551. APPLICATION. An action to which Section

74.552 applies is A civil action brought against a physician or

health care provider for a violation of a provision of Chapter 170,

170A, or 171, Health and Safety Code, or Chapter 6-1/2, Title 71,

Vernon's Texas Civil Statutes, subject to an exception provided by

the chapter alleged to have been violated or other law, is a health

care liability claim for purposes of this chapter and is subject to

the same requirements as any other health care liability claim.

This section does not affect a health care liability claim based on

any other ground than a violation of Chapters 170, 170A, or 171,

Health and Safety Code, or Chapter 6-1/2, Title 71, Vernon's Texas

Civil Statutes.

SECTION 3. Section 170A.002(b), Health and Safety Code, is

amended to read as follows:

(b) The prohibition under It is an exception to the

application of Subsection (a) that does not apply if :

(1) the person performing, inducing, or attempting the

abortion is a licensed physician : ; and

(2) in the exercise of reasonable medical judgment,

the pregnant female on whom the abortion is performed, induced, or

attempted has a life-threatening physical condition aggravated by,

caused by, or arising from a pregnancy that places the female at

risk of death or poses a serious risk of substantial impairment of a

major bodily function unless the abortion is performed or induced ;

and

(3) the person performs, induces, or attempts the

abortion in a manner that, in the exercise of reasonable medical

judgment, provides the best opportunity for the unborn child to

survive unless, in the reasonable medical judgment, that manner

would create:

(A) a greater risk of the pregnant female's

death; or

(B) a serious risk of substantial impairment of a

major bodily function of the pregnant female.

SECTION 4. Chapter 170A, Health and Safety Code, is amended

by adding new Sections 170A.0021, 170A.0022, and 170A.0023 to read

as follows:

Sec. 170A.0021. TREATMENT AFFECTING UNBORN CHILD;

EXCEPTION. (a) Notwithstanding any other law, a physician who

treats a condition described by Subsection 170A.002(b)(2) shall do

so in a manner that, in the exercise of reasonable medical judgment,

provides the best opportunity for survival of an unborn child.

(b) It is an exception to the application of Subsection (a)

that, in a physician's reasonable medical judgment, the manner of

treatment required by that subsection would create a greater risk

of:

(1) the pregnant female's death; or

(2) substantial impairment of a major bodily function

of the pregnant female.

(c) This chapter does not require a physician to delay,

alter or withhold medical treatment provided to a pregnant female

if doing so would create a greater risk of:

(1) the pregnant female's death; or

(2) substantial impairment of a major bodily function

of the pregnant female.

(d) Nothing in Subsection (c) authorizes the performance of

an abortion that is prohibited by law.

Sec. 170A.0022. REASONABLE MEDICAL JUDGMENT. Reasonable

medical judgment in providing medical treatment to a pregnant

female includes removing:

(1) an ectopic pregnancy as defined by Section

245.002(4-a); and

(2) a dead, unborn child whose death was caused by

spontaneous abortion.

Sec. 170A.0023. ACCIDENTAL OR UNINTENTIONAL DEATH. (a)

This section applies to any law that provides an exception to an

otherwise prohibited abortion based on a condition described by

Section 170A.002(b)(2).

(b) It is an exception to the application of each law

described by Subsection (a) that the death or injury of an unborn

child resulted from treatment provided to a pregnant female based

on a physician's reasonable medical judgment if the death of or

injury to the unborn child was accidental or unintentional.

SECTION 5. Section 171.002(3), Health and Safety Code, is

amended to read as follows:

(3) "Medical emergency" means a condition described by

Section 170A.002(b)(2) 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 .

SECTION 6. Section 171.046(a) and (b), Health and Safety

Code, are amended to read as follows:

(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, the abortion is necessary due to a

medical emergency and 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 medical emergency 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.

SECTION 7. Section 171.063(c), Health and Safety Code, is

amended to read as follows:

(c) Before the physician provides an abortion-inducing

drug, the physician must:

(1) examine the pregnant woman in person;

(2) independently verify that a pregnancy exists;

(3) document, in the woman's medical record, the

gestational age and intrauterine location of the pregnancy to

determine whether an ectopic pregnancy exists as defined by Section

245.002(4-a) ;

(4) determine the pregnant woman's blood type, and for

a woman who is Rh negative, offer to administer Rh immunoglobulin

(RhoGAM) at the time the abortion-inducing drug is administered or

used or the abortion is performed or induced to prevent Rh

incompatibility, complications, or miscarriage in future

pregnancies;

(5) document whether the pregnant woman received

treatment for Rh negativity, as diagnosed by the most accurate

standard of medical care; and

(6) ensure the physician does not provide an

abortion-inducing drug for a pregnant woman whose pregnancy is more

than 49 days of gestational age.

SECTION 8. Subchapter H, Chapter 171, Health and Safety

Code, is amended by adding a new Section 171.2011 to read as

follows:

Sec.171.2011. APPLICABILITY. (a) This subchapter applies

only to an abortion that is otherwise prohibited by law and that is

not subject to an exception provided by law.

(b) The following activities do not constitute aiding or

abetting under this subchapter:

(1) providing services by a physician or health care

provider to a treating physician, or communication between a

physician or health care provider and a treating physician, for the

purposes of arriving at a reasonable medical judgment as required

by an exception to an otherwise prohibited abortion;

(2) communicating between a physician or health care

provider and a patient, or providing services by a physician or

health care provider to a patient, for the purpose of arriving at

reasonable medical judgment as required by an exception to an

otherwise prohibited abortion;

(3) communicating between an attorney and a physician

or health care provider related to an exception to an otherwise

prohibited abortion;

(4) communicating between a treating physician and any

other person or providing services to a treating physician or

patient relating to performing, inducing or attempting an abortion

for which the treating physician has determined that, in reasonable

medical judgment, an exception to an otherwise prohibited abortion

is applicable;

(5) providing products to a patient or treating

physician relating to performing, inducing or attempting an

abortion for which the treating physician has determined that, in

reasonable medical judgment, an exception to an otherwise

prohibited abortion is applicable.

SECTION 9. Amend Section 245.002(4-a), Health and Safety

Code, to read as follows:

(4-a) "Ectopic pregnancy" means the implantation of a

fertilized egg or embryo :

(A) outside of the uterus;

(B) in an abnormal location in the uterus causing

the fertilized egg or embryo to be non-viable; or

(C) in a scarred portion of the uterus .

SECTION 10. Amend Section 245.016, Health and Safety Code,

to read as follows:

Sec. 245.016. ABORTION IN UNLICENSED ABORTION FACILITY TO

PREVENT DEATH OR SERIOUS IMPAIRMENT. It is an exception to the

application of Section 245.014 that the abortion was performed in

an unlicensed abortion facility due to a medical emergency

described by Section 170A.002(b)(2) This chapter does not remove

the responsibility or limit the ability of a physician to perform an

abortion in an unlicensed abortion facility if, at the commencement

of the abortion, the physician reasonably believes that the

abortion is necessary to prevent the death of the patient or to

prevent serious impairment of the patient's physical health . In

this section, the term "unlicensed abortion facility" does not

include an individual or entity to which funds appropriated by the

legislature in the general appropriations act are prohibited from

being distributed.

SECTION 11. Amend Section 164.052, Occupations Code, by

adding a new Subsection (d) to read as follows:

(d) This section may not be construed to prohibit, and the

board may not take action against a physician regarding, the

performance of an abortion in response to a medical emergency

described by Section 170A.002(b)(2), Health and Safety Code.

SECTION 12. Amend Section 164.055, Occupations Code, by

adding by amending Subsection (c) to read as follows:

(c) Notwithstanding Subsection (a), the board may not take

disciplinary action against a physician who exercised reasonable

medical judgment in providing medical treatment to a pregnant woman

as described by Section 74.552, Civil Practice and Remedies Code

170A.002, Health and Safety Code .

SECTION 13. Amend Section 165.152, Occupations Code, by

adding a new Subsection (e) to read as follows:

(e) It is an exception to the application of Subsection (a)

if the person is a physician who performs, induces, or attempts an

abortion due to a medical emergency described by Section

170A.002(b)(2), Health and Safety Code.

SECTION 14. Article 4512.6, Chapter 6-1/2, Title 71,

Vernon's Civil Statutes, is amended to read as follows:

Art. 4512.6. BY EXCEPTION FOR MEDICAL EMERGENCY ADVICE .

Nothing in this chapter applies to (a) It is an exception to the

application of this chapter that an abortion is procured , performed

or attempted due to a medical emergency by medical advice for the

purpose of saving the life of the mother .

(b) In this article, "medical emergency" means a condition

described by Section 170A.002(b)(2), Health and Safety Code.

SECTION 15. The exceptions to otherwise prohibited

abortions described by this Act:

(1) shall be construed as consistent with the opinion

of the Texas Supreme Court in In re State , 682 S.W.3d 890 (Tex.

2023), including with respect to providing that any threat posed by

a female's pregnancy to her life or major bodily functions need not

be imminent or irreversible; and

(2) except as provided by the change in law made by

this Act to Section 170A.002(b)(2), Health and Safety Code, shall

be construed as consistent with the opinion of the Texas Supreme

Court in State v. Zurawski , 690 S.W.3d 644 (Tex. 2024), including

with respect to the state's burden of proof in any enforcement

action.

SECTION 16. The following statutes are repealed:

(1) Section 74.552, Civil Practice and Remedies Code;

(2) Section 170A.002(d), Health and Safety Code;

(3) Section 9.35, Penal Code.

SECTION 17. (a) To increase the understanding of the legal

profession regarding the laws regulating abortion following the

changes in law made by this Act, the State Bar of Texas shall

develop, or solicit the development of, and offer to attorneys

licensed in this state a comprehensive program of continuing legal

education regarding the regulation of abortion in this state, with

a focus on the exceptions to otherwise prohibited abortions. The

program shall include legal education regarding:

(1) statutory terminology applicable to the

definition and regulation of abortion;

(2) prohibited abortions and prohibited medical

techniques related to the performance of abortions;

(3) state law establishing statutory exceptions to

otherwise prohibited abortions;

(4) the civil and criminal implications of abortion

regulation in this state and the implications of statutory

exceptions to otherwise prohibited abortions;

(5) the definition of "medical emergency" as defined

by Section 170A.002(b)(2), Health and Safety Code;

(6) the responsibility of a physician to exercise

reasonable medical judgment in determining whether a condition or

conditions exist allowing the performance of an abortion during a

medical emergency; and

(7) the circumstances under which a physician is

required under Section 170A.0021, Health and Safety Code, to treat

a pregnant female who experiences such conditions in a manner that

maximizes an unborn child's opportunity to survive if doing so does

not increase the threat to the mother presented by those

conditions.

(b) The program required by Subsection (a) shall be:

(1) developed in cooperation with the Health Law

Section of the State Bar of Texas, physician and health care

provider organizations, and other non-State Bar of Texas

stakeholders with a demonstrated interest and expertise in the

required subject matter; and

(2) be promoted by communications made by the State

Bar to all attorneys in this state, organizations representing

physicians and health care providers whose members treat pregnant

women, and health care institutions as defined by Section 74.001,

Civil Practice and Remedies Codes.

(c) The course of instruction required by Subsection (a)

must be offered at no cost to attorneys licensed in this state and

shall be offered on the Internet provided through the state bar in

addition to any other method approved by the state bar.

(d) The program required by Subsection (a) shall be offered

no later than January 1, 2026.

SECTION 18. (a)(1) No later than January 1, 2026, the Texas

Medical Board shall make available one or more approved courses

regarding the laws relating to pregnancy-related medical

emergencies as the term "medical emergency" is used in Title 2,

Subtitle H, Health and Safety Code.

(2) The board may solicit the development of a course

required by Subsection (1) by organizations representing

physicians, institutions of higher education with medical schools,

or other providers of continuing education to physicians acceptable

to the board.

(3) After approval of a continuing education course

required by this subsection, the board shall inform all licensed

physicians in this state of the availability of the course and

request organizations representing physicians in general and

physicians who practice in specialties that treat pregnant women to

make the availability of the course known to their members.

(b) Completion of a course described by Subsection (a) shall

be credited to the requirements for continuing medical education

enforced by the Texas Medical Board.

(c) A course approved under Subsection (a) shall address:

(1) what does and does not constitute an abortion,

including exclusions from that term for ectopic pregnancy and

spontaneous abortion;

(2) the laws prohibiting abortion and any procedures

prohibited by law for performing an abortion;

(3) the statutory exceptions to laws prohibiting

abortion with an emphasis on exceptions based on a medical

emergency as the term "medical emergency" is used in Title 2,

Subtitle H, Health and Safety Code; and

(4) the laws regarding reasonable medical judgment as

used in connection with the medical emergency exceptions to laws

prohibiting abortions.

(d) Continuing medical education described in whole or in

part by Subsection (c) does not constitute aiding or abetting as

those terms are used in Subchapter H, Chapter 171, Health and Safety

Code.

(e)(1) A physician licensed to practice medicine under

Subtitle B, Title 3, Occupations Code, who provides obstetric care

shall complete no later than June 1, 2027, a course described by

Subsection (a) that equals at least one hour of continuing medical

education. This is a one-time requirement.

(2) The license of a physician described by Subsection

(1) shall not be renewed if the physician has not complied with that

subsection.

(3) The Texas Medical Board shall adopt rules to

implement this subsection.

(f) The board shall make available at least one course

required by this section at no cost to physicians licensed in this

state and include on its internet website a list of courses of

continuing medical education approved under Subsection (a).

(g) Nothing in Subsections (a) through (f):

(1) creates a cause of action or a standard of care,

obligation or duty that provides the basis for a cause of action; or

(2) affects a health care liability claim, as defined

by Section 74.001(13), Civil Practice and Remedies Code, based on

any ground other than a violation of Chapters 170, 170A, or 171,

Health and Safety Code, or Chapter 6-1/2, Title 71, Vernon's Texas

Civil Statutes.

SECTION 19. This Act takes effect immediately if it

receives a vote of two-thirds of all the members elected to each

house, as provided by Section 39, Article III, Texas Constitution.

If this Act does not receive the vote necessary for immediate

effect, this Act takes effect September 1, 2025.