Number: HB 2
Status: CurrentProposed: June 28, 2013 Enacted: July 18, 2013
Topics: 20-Week Bans, Admitting Privileges, Later Abortion, Medication Abortion, Omnibus (multiple topics), Physicians Reporting Requirements, Targeted Regulation of Abortion Providers, Telemedicine Abortion Bans
Last updated Nov 11, 2015.
HB 2 is an omnibus abortion bill that contains multiple abortion restrictions, including (1) 20-week abortion ban; (2) admitting privileges requirements; (3) ambulatory surgical center requirement; (4) reporting requirements; and (5) restrictions on medication abortion.
20-Week Abortion Ban
HB 2 bans abortions at 20 weeks post-fertilization unless, in the physician’s reasonable medical judgment, abortion is necessary 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. The abortion ban does not apply to an abortion performed on an “unborn child who has a severe fetal abnormality.” An abortion does not become necessary if the 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.
Abortion performed after 20 weeks must be performed in a manner that provides the best opportunity for the “unborn child” to survive.
The bill includes legislative findings based on junk science that a fetus can feel pain at 20 weeks.
The bill prohibits prosecution of a woman on whom an abortion is performed.
Definition of Abortion
An act is not an abortion if the act is done with the intent to: (1) save the life or preserve the health of an unborn child; (2) remove a dead, unborn child whose death was caused by spontaneous abortion; (3) remove an ectopic pregnancy; or (4) treat a maternal disease or illness for which a prescribed drug, medicine, or other substance is indicated.
- Admitting Privileges: Physicians are required to have admitting privileges at a hospital that is located no more than 30 miles from where the abortion was performed and that provides OB-GYN services.
- Physician Contact: Physicians are required to provide pregnant woman with a telephone number by which a physician or health-care professional employed by the abortion provider facility can be reached 24 hours a day for assistance with complications.
- Ambulatory Surgical Center Requirement: Abortion facilities are required to meet minimum standards adopted for ambulatory surgical centers by September 2014.
A violation of this provision is a Class A misdemeanor punishable by a fine only, not to exceed $4,000.
HB 2 amends physician reporting requirements in Section 245.011(c), Health and Safety Code, to include probable post-fertilization age of the “unborn child.”
Medication Abortion Restrictions and Telemedicine
HB 2 prohibits dispensing abortion-inducing drugs (mifepristone-misoprostol regimen) by anyone other than a physician, and requires that the administration of the drugs follow FDA protocols as outlined on the final printed label of the abortion-inducing drug.
The bill requires that the physician dispensing the drug first examine the pregnant woman and document, in the woman’s medical chart, the gestational age and intrauterine location of the pregnancy prior to dispensing the abortion-inducing drug. The bill does not specify that the examination must be in person, although that is implied. This provision, therefore, is likely a telemedicine ban.
The bill also requires the physician to schedule a follow-up visit not more than 14 days after the administration or use of the drug. The physician is required to make a reasonable effort to ensure that the woman returns for the follow-up visit and to document such efforts by including in the woman’s medical record the date, time, and name of the person making the effort.
The bill provides for disciplinary action or assessment of an administrative penalty against a person who violates the law. Prohibits assessment of a penalty against a pregnant woman who receives a medication abortion.
HB 2 was passed and signed into law during the second special legislative session called by Gov. Rick Perry in 2013.
Planned Parenthood v. Abbott
A lawsuit challenging two provisions of HB 2—the medication abortion restrictions and the admitting privileges requirement—was filed in September 2013. In October 2013, a federal district court ruled that the admitting privileges requirement was unconstitutional, but upheld as constitutional the medication abortion restriction which mandates that medication abortions be prescribed according to a 13-year-old FDA protocol except in cases where a physician determines, in appropriate medical judgment, that a non-FDA protocol is necessary for the preservation of the life or health of the mother. In such cases, the court ruled that the medication abortion ban places an undue burden on a woman seeking an abortion. (See Planned Parenthood v. Abbott.)
Texas appealed the ruling to the Fifth Circuit Court of Appeals, seeking an emergency stay of the district court’s ruling. The Fifth Circuit granted the emergency stay on October 31, 2013, ruling that neither the admitting privileges requirement nor the medication abortion requirements were unconstitutional, in a move that will force one-third of the abortion clinics to close, according to experts.
On November 4, 2013, the attorneys representing the abortion providers filed an emergency request with the Supreme Court to block the Fifth Circuit’s ruling. On November 19, 2013, the Supreme Court refused to block the law. On March 27, 2014 a three-judge-panel of the Fifth Circuit upheld both the medication abortion restrictions and the admitting privileges requirement as constitutional.
Whole Woman’s Health v. Cole
In April 2014, another lawsuit was filed challenging two aspects of HB 2: (1) the admitting privileges requirement specifically as it applies to two clinics—Whole Woman’s Health in McAllen and Reproductive Services in El Paso; and (2) the requirement that every abortion clinic meet the same building requirements as ambulatory surgical centers (ASCs). (See Whole Woman’s Health v. Cole.)
On August 29, 2014, a federal district court ruled that the ASC requirement was unconstitutional and that the admitting privileges requirement as applied to the clinics in McAllen and El Paso were likewise unconstitutional because they “create an impermissible obstacle as applied to all women seeking a previability abortion.”
Texas appealed that ruling to the Fifth Circuit, and on October 2, 2014, the Fifth Circuit stayed the district court’s ruling, allowing both the ASC and admitting requirements to go into effect. As a result, all but eight clinics in Texas immediately were forced to close their doors.
On October 14, 2014, the Supreme Court vacated the Fifth Circuit’s decision, thus blocking Texas from enforcing the admitting privileges as applied to the McAllen and El Paso clinics, and blocking Texas from enforcing the ASC requirement.
On June 9, 2015, the Fifth Circuit upheld the requirements in HB 2, with two exceptions. It exempted the McAllen clinic from the ASC requirement (until another provider opens up in the area) and exempted Dr. Lynn from the admitting privileges requirement when he is working at the McAllen clinic.