TEXAS - TERMINATION OF PREGNANCY (ABORTION)

January 1, 2008

State laws and regulations that affect your medical practice

1. Who may perform an abortion in the State of Texas?

An abortion may be performed only be a physician licensed to practice medicine in Texas.

V.T.S.C.A. § 171.003

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.

V.T.S.C.A. § 171.004

3. What sort of consent is required before performing an abortion?

A person may not perform an abortion without the voluntary and informed consent of the woman on whom the abortion is to be performed.

V.T.S.C.A. § 171.011

(a) Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:

(1) The physician who is to perform the abortion or the referring physician informs the woman on whom the abortion is to be performed of:

(i) The name of the physician who will perform the abortion;

(ii) The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:

a. The risks of infection and hemorrhage;

b. The potential danger to a subsequent pregnancy and infertility; and

c. 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;

(iii) The probable gestational age of the unborn child at the time the abortion is to be performed; and

(iv) 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 woman that:

(i) Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;

(ii) 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;

(iii) 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; and

(iv) The woman has the right to review the printed materials that have been provided by the Texas Department of Health and are accessible on an Internet website sponsored by the department, and that the materials describe the unborn child and list agencies that offer alternatives to abortion;

(3) The woman certifies in writing before the abortion is performed that the information described by subdivisions (1) and (2) has been provided to her and that she has been informed of her opportunity to review the printed materials described in (2)(iv); and

(4) Before the abortion is performed, the physician who is to perform the abortion receives a copy of the written certification.

(b) The information required to be provided under subsections (a)(1) and (a)(2) must be provided:

(1) Orally by telephone or in person; and

(2) At least 24 hours before the abortion is to be performed.

( c ) When providing the information under subsection (a)(2)(iv), the physician or the physician's agent must provide the woman with the address of the internet website on which the printed materials may be viewed.

(d) The information provided to the woman under subsection (a)(2)(ii) 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.

V.T.S.C.A. § 171.012

4. If a woman chooses to review the informational materials (described below) 24 hours before an abortion is performed, what information must be included in the materials?

(a) The materials shall be published in English and Spanish, in an easily comprehensible form.

V.T.S.C.A. § 171.014

(b) The informational materials must include either:

(1) Geographically indexed materials designed to inform the 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; and

(iii) A description of the manner, including telephone numbers, in which an adoption agency may be contacted;

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; or

(2) A toll-free, 24-hour telephone number that may be called to obtain an oral list and description of agencies that are located near the caller and of the services the agencies offer.

V.T.S.C.A. § 171.015

( c ) The informational materials must 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.

(d) The materials must include color pictures representing the development of the child at two-week gestational increment. The pictures must include the dimensions of the unborn child and must be realistic.

(e) The materials provided must be objective and nonjudgmental and be designed to convey only accurate scientific information about the unborn child at the various gestational ages.

V.T.S.C.A. § 171.016

5. What procedures must be followed with respect to a pregnant minor?

(a) A physician may not perform an abortion on a pregnant unemancipated minor unless:

(1) The physician performing the abortion gives at least 48 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to:

a. A parent of the minor, if the minor has no managing conservator or guardian; or

b. A court-appointed managing conservator or guardian;

(2) The judge of a court having probate jurisdiction, the judge of a county court at law, the judge of a district court, including a family district court, or a court of appellate jurisdiction issues an order authorizing the minor to consent to the abortion;

(3) A probate court, county court at law, district court, including a family district court, or court of appeals, by its inaction, constructively authorizes the minor to consent to the abortion; or

(4) The physician performing the abortion:

a. Concludes that on the basis of the physician's good faith clinical judgment, a condition exists that complicates the medical condition of the pregnant minor and necessitates the immediate abortion of her pregnancy to avert her death or to avoid a serious risk of substantial and irreversible impairment of a major bodily function; and

b. Certifies in writing to the Texas Department of Health and in the patient's medical record the medical indications supporting the physician's judgment that the circumstances described by paragraph (a) exist.

(b) If a person to whom notice may be given under subsection (a)(1) cannot be notified after a reasonable effort, a physician may perform an abortion if the physician gives 48 hours constructive notice, by certified mail, restricted delivery, sent to the last known address, to the person to whom notice may be given under subsection (a)(1). The period under this subsection begins when the notice is mailed. If the person required to be notified is not notified within the 48-hour period, the abortion may proceed even if the notice by mail is not received.

( c ) The requirement that 48 hours actual notice be provided under this section may be waived by an affidavit of:

(1) A parent of the minor, if the minor has no managing conservator or guardian; or

(2) A court-appointed managing conservator or guardian.

(d) A physician may execute for inclusion in the minor's medical record an affidavit stating that, according to the best information and belief of the physician, notice or constructive notice has been provided as required by this section. Execution of an affidavit under this subsection creates a presumption that the requirements of this section have been satisfied.

(e) The Texas Department of Health shall prepare a form to be used for making the certification required by subsection (a)(4).

(f) A certification is confidential and privileged and is not subject to disclosure or to discovery, subpoena, or other legal process. Personal or identifying information about the minor, including her name, address, or social security number, may not be included in a certification.

(g) A physician who intentionally performs an abortion on a pregnant unemancipated minor in violation of this section commits an offense, punishable by a fine not to exceed $10,0000.

(h) It is a defense to prosecution under this section that the minor falsely represented her age or identity to the physician to be at least 18 years of age by displaying an apparently valid governmental record of identification such that a reasonable person under similar circumstances would have relied on the representation. The defense does not apply if the physician is shown to have had independent knowledge of the minor's actual age or identity or failed to use due diligence in determining the minor's age or identity.

V.T.S.C.A. § 33.002

6. How does a minor obtain judicial approval to have an abortion without notification of her parents?

(a) A pregnant minor who wishes to have an abortion without notification to one of her parents, her managing conservator, or her guardian may file an application for a court order authorizing the minor to consent to the performance of an abortion without notification to either of her parents or a managing conservator or guardian.

(b) The application may be filed in any county court at law, court having probate jurisdiction, or district court, including a family district court in this state.

( c ) The application must be made under oath and include:

(1) A statement that the minor is pregnant;

(2) A statement that the minor is unmarried, is under 18 years of age, and has not had her disabilities removed;

(3) A statement that the minor wishes to have an abortion without the notification of either of her parents or a managing conservator or guardian; and

(4) A statement as to whether the minor has retained an attorney and, if she has retained an attorney, the name, address, and telephone number of her attorney.

(d) The clerk of the court shall deliver a courtesy copy of the application made under this section to the judge who is to hear the application.

(e) The court shall appoint a guardian ad litem for the minor. If the minor has not retained an attorney, the court shall appoint an attorney to represent the minor. If the guardian ad litem is an attorney admitted to the practice of law in this state, the court may appoint the guardian ad litem to serve as the minor's attorney.

(f) The court may appoint to serve as guardian ad litem:

(1) A person who may consent to treatment for the minor;

(2) A psychiatrist or an individual licensed or certified as a psychologist;

(3) An appropriate employee of the Department of Protective and Regulatory Services;

(4) A member of the clergy; or

(5) Another appropriate person selected by the court.

(g) The court shall fix a time for a hearing on an application filed under subsection (a) and shall keep a record of all testimony and other oral proceedings in the action. The court shall enter judgment on the application immediately after the hearing is concluded.

(h) The court shall rule on an application submitted under this section and shall issue written findings of fact and conclusions of law not later than 5 p.m. on the second business day after the date the minor states she is ready to proceed to hearing.

(i) The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian, whether notification would not be in the best interest of the minor, or whether notification may lead to physical, sexual or emotional abuse of the minor. If the court finds that the minor is mature and sufficiently well informed, that notification would not be in the minor's best interest, or that notification may lead to physical, sexual or emotional abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either of her parents or a managing conservator or guardian and shall execute the required forms.

(j) If the court finds that the minor does not meet the requirements of subsection (i), the court may not authorize the minor to consent to an abortion without required notification.

(k) The court may not notify a parent, managing conservator, or guardian that the minor is pregnant or that the minor wants to have an abortion. The court proceedings shall be conducted in a manner that protects the anonymity of the minor. The application and all other court documents pertaining to the proceedings are confidential and privileged and are not subject to disclosure under Chapter 552, Government Code, or to discovery, subpoena, or other legal process. The minor may file the application using a pseudonym or using only her initials.

V.T.S.C.A. § 33.003

7. What are the rights of a living child after an abortion or premature birth?

(a) 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 this state to any other child born alive after the normal gestation period.

(b) "Born alive" means the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Each product of the birth is considered born alive.

V.T.S.C.A. § 151.002

8. What happens to parental rights if a child is born alive as the result of an abortion?

(a) A petition, requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the child was born alive as the result of an abortion.

(b) "Abortion" means an intentional expulsion of a human fetus from the body of a woman induced by any means for the purpose of causing the death of the fetus.

( c ) The court or the jury may not terminate the parent-child relationship under this section with respect to a parent who:

(1) Had no knowledge of the abortion; or

(2) Participated in or consented to the abortion for the sole purpose of preventing the death of the mother.

V.T.S.C.A. § 161.006

(d) An authorized representative of the Department of Protective and Regulatory Services may assume the care, control and custody of a child born alive as the result of an abortion.

(e) The department shall file a suit and request an emergency order under this chapter.

(f) A child for whom possession is assumed under this section need not be delivered to the court except on the order of the court.

V.T.S.C.A. § 262.006

9. When is performance of an abortion prohibited?

(a) A person may not intentionally or knowingly perform an abortion on a woman who is pregnant with a viable unborn child during the third trimester of the pregnancy.

(b) Subsection (a) does not prohibit a person from performing an abortion if at the time of the abortion the person is a physician and concludes in good faith according to the physician's best medical judgment that:

(1) The fetus is not a viable fetus and the pregnancy is not in the third trimester;

(2) The abortion is necessary to prevent the death or a substantial risk of serious impairment to the physical or mental health of the woman; or

(3) The fetus has a severe and irreversible abnormality, identified by reliable diagnostic procedures.

( c ) A physician who performs an abortion that, according to the physician's best medical judgment at the time of the abortion, is to abort a viable unborn child during the third trimester of the pregnancy shall certify in writing to the department, on a form prescribed by the department, the medical indications supporting the physician's judgment that the abortion was authorized. The certification must be made not later than the 30th day after the date the abortion was performed.

V.T.S.C.A. § 170.002

10. May a health care provider refuse to participate in the performance of an abortion?

(a) A physician, nurse, staff member, or employee of a hospital or other health care facility who objects to directly or indirectly performing or participating in an abortion procedure may not be required to directly or indirectly perform or participate in the procedure.

V.T.S.C.A.§ 103.001

(b) A hospital or health care facility may not discriminate against a physician, nurse, staff member, or employee, or an applicant for one of those positions, who refuses to perform or participate in an abortion procedure.

( c ) A hospital or health care facility may not discriminate against a physician, nurse, staff member, or employee because of the person's willingness to participate in an abortion procedure at another facility.

(d) An educational institution may not discriminate against an applicant for admission or employment as a student, intern, or resident because of the applicant's attitude concerning abortion.

V.T.S.C.A. § 103.002

(e) A private hospital or private health care facility is not required to make its facilities available for the performance of an abortion unless a physician determines that the life of the mother is immediately endangered.

V.T.S.C.A. § 103.004

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

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