2003 LEGISLATIVE COMPENDIUM Abortion and Related Legislation

[ Prenatal Protection Act | Gestational Agreements | Parenting and Postpartum Counseling | Woman's Rights to Know Act ]

Longtime policy prohibits TMA from taking a position on the legality or morality of abortion. Physicians' opinion on the issue - much like the general public's - covers the spectrum of the abortion debate. Despite a neutral policy position, TMA often is asked to comment on specific aspects of abortion-related legislation or offers comments when a provision in a bill negatively impacts the patient-physician relationship or the practice of medicine. Numerous bills filed this session fell into the latter category. Holding a neutral position on abortion means that the association must walk a fine line when commenting on any bill related to the issue. Both sides of the debate want medicine to enter the fractious discussions.

The juggling act continued this session. The legislature's continuing conservative tilt meant more abortion-related bills were filed. For medicine, two bills in particular were problematic: Senate Bill 319 and House Bill 15. The former establishes an unborn child as a person, thus opening a legal can of worms for physicians who treat pregnant women. The bill authors did amend the bill to try to address physicians' concerns, but the issue eventually will likely be addressed by the courts. HB 15 requires the Texas Department of Health (TDH) to give women material about abortion. TMA and the Texas Association of Obstetricians and Gynecologists (TAOG) objected to a provision in the bill requiring informational material to describe a link between breast cancer and abortion, an assertion roundly refuted by all scientifically valid studies. TAOG and TMA will work closely together to monitor both bills and take appropriate actions to avoid deleterious impacts to physicians and patients.

PRENATAL PROTECTION ACT

SB 319 by Senator Ken Armbrister (D-Victoria) and Rep. Ray Allen (R-Grand Prairie) amends the Wrongful Death Act to add an unborn child to the definition of an "individual." A wrongful death and survival claim cannot be brought for the death of an unborn fetus against the mother, a health care provider performing a lawful medical procedure, or one dispensing a drug in accordance with law.

The bill also amends the Penal Code to add "unborn child" to the definition of an "individual." It excepts from prosecution for the homicide of an unborn child the mother, a health care provider performing an abortion or assisted reproduction procedure, or one lawfully dispensing a drug.

Other key provisions:

Excepts from prosecution for assaultive offenses to an unborn child the mother, a health care provider performing a lawful medical procedure with the requisite consent or assisted reproduction procedure, or one dispensing a drug in accordance with law, and

Excepts the mother from prosecution for intoxication assault and intoxication manslaughter of an unborn child.

GESTATIONAL AGREEMENTS

HB 729 by Rep. Toby Goodman (R-Arlington) implements adoption of the Uniform Parentage Act regarding gestational agreements. The bill adds "a person who is an intended parent" to the list of persons who have standing to adjudicate parentage.

It also authorizes gestational agreements whereby a prospective gestational mother, her husband if she is married, each donor, and each intended parent may enter into a written agreement; details of the agreement are specified. It does not apply to the birth of a child conceived by means of sexual intercourse. The agreement can be terminated before the gestational mother becomes pregnant.

The intended parents and prospective gestational mother must commence a proceeding to validate the agreement, and the evidence must show that the intended mother could not safely give birth to a child. Unless waived, a home study is required. The gestational mother must have had at least one previous pregnancy. Records of the proceeding are subject to the same standards of confidentiality as an adoption. After receiving notice of the birth, the court renders an order that confirms that the intended parents are the child's parents. If the gestational agreement is not validated, an intended parent may nevertheless be held liable for child support, even if the agreement is otherwise unenforceable.

TDH must require health care facilities at which assisted reproduction procedures are performed under gestational agreements to report certain statistics (number of procedures and number and status of embryos created that were not implanted).

PARENTING AND POSTPARTUM COUNSELING

HB 341 by Rep. Carlos Uresti (D-San Antonio) and Sen. Jon Lindsay (R-Houston) requires that parenting and postpartum counseling information be provided to women undergoing prenatal care to assist them in dealing with postpartum depression or to provide other needed assistance.

It requires that a hospital, birthing center, physician, nurse midwife, or midwife (provider) who provides prenatal care to a pregnant woman during gestation or at delivery of an infant:

Provide the woman with a resource list of the names, addresses, and phone numbers of professional organizations that provide postpartum counseling and assistance to parents;

Document in the patient's record that the patient received the information; and

Retain the documentation for at least three years in the hospital's, birthing center's, physician's, nurse midwife's, or midwife's records.

It presumes that the provider complied with this statute if the woman received prior prenatal care from another provider in the state during the same pregnancy.

TDH is required to establish guidelines, have a printable list of professional organizations that provide postpartum counseling and assistance to parents available on its Web site, and update the list monthly.   

WOMAN'S RIGHT TO KNOW ACT

HB 15 by Rep. Frank Corte (R-San Antonio) establishes that abortion of a fetus age 16 weeks or more may be performed only at an ambulatory surgical center or hospital licensed to perform abortion. The bill also establishes requirements for voluntary and informed consent for an abortion.

In particular, HB 15 lists extensive information to be provided to the patient. A woman must certify before the abortion is performed that she has been provided certain information and that she has been informed of her opportunity to review certain information. TMA and the TAOG are most concerned about the requirement that information given to women assert a link between abortion and breast cancer, a contention repeatedly refuted in the medical literature.

TDH must publish informational materials in English and Spanish and develop a Web site to display the information; it must use the American College of Obstetricians and Gynecologists as the resource in developing required information. The informational materials must include geographically indexed information about public and private agencies and services that assist a woman through pregnancy, childbirth, and the child's dependency (including adoption agencies) or maintain a 24-hour toll-free telephone number to provide such information.

The informational materials must contain color pictures representing the development of the fetus at two-week gestational increments and include information on the possibility of the unborn child's survival.

A physician who intentionally performs an abortion in violation of this subchapter commits a misdemeanor punishable by a fine not to exceed $10,000.

The bill amends the Health and Safety Code abortion facility licensing requirement to include physician offices that perform at least 10 abortions a month or at least 100 in a year or holds itself out as an office that performs abortions or one that applies for a license.

[ Overview | Professional Liability Reform | Patient Safety/Quality Improvement | Managed Care/Insurance Reform | Health Care Funding | Health and Human Services Reorganization | Scope of Practice | Public Health | Rural Health | Mental Health | Medical Science | Workers' Compensation | Tax Reform | Long-Term Care | Workforce/Medical Education | Health Facility Regulation | Transplantation/Organ Donation ]