Texas ‘Disabled Preborn Justice Act’ (HB 1971)

HB 1971 would amend current law regarding perinatal hospice and prohibit abortion when the reason for such a procedure is due to the probability of having or diagnosis of a disability of the individual’s fetus.

Perinatal Hospice Care

The bill would require the health department to develop perinatal hospice care informational materials and post the materials on the department’s Internet website. The materials must include:

• a description of the health care and other services available through perinatal hospice care; and
• information about medical assistance benefits that may be available for prenatal care, childbirth, and perinatal hospice care.

The department would be required to develop and regularly update a geographically indexed list of all perinatal hospice care providers and programs in the state. The list may contain out-of-state providers that provide care to Texas residents.

Perinatal Informed Consent

The bill would require the department to develop a form on which a pregnant individual certifies they have received the perinatal hospice care informational materials and list of the perinatal hospice care providers and programs.

HB 1971 would require a health-care provider who diagnoses a pregnant individual’s fetus as having a life-threatening disability to, at the time of the diagnosis:

• provide the pregnant individual with a written copy of:
  • the perinatal hospice care informational materials and list of the perinatal hospice care providers and programs; and
  • the perinatal hospice care certification form; and
• obtain the pregnant individual’s signed certification form and place in their records.

A health-care provider would not be required to provide such information if they can verify the pregnant individual’s medical record contains a signed perinatal hospice care certification.

Post-Viability Abortion

Current Texas law prohibits a person from intentionally or knowingly performing an abortion on an individual who is pregnant with a viable fetus during the third trimester of the pregnancy unless the physician determines:

• the fetus is not a viable fetus and the pregnancy is not in the third trimester;
• the abortion is necessary to prevent the death or a substantial risk of serious impairment to the physical or mental health of the pregnant individual; or
• the fetus has a severe and irreversible abnormality, identified by reliable diagnostic procedures.

HB 1971 would remove the exception for when the fetus is not a viable fetus and the pregnancy is not in the third trimester, and the exception for severe and irreversible abnormalities. This would essentially prohibit all late-tem abortions unless there was a medical emergency that threatened the life of the pregnant patient.

Genetic Anomalies 

The bill would prohibit a person from knowingly performing or attempting to perform an abortion on a pregnant individual based on the race, ethnicity, sex, probability of having or diagnosis of Down syndrome, or probability of having or diagnosis of a disability of the pregnant individual’s fetus.

Additionally, the bill would prohibit a person from using force or the threat of force to intentionally injure or intimidate a person in order to coerce the performance or attempted performance of such an abortion.

The bill defines disability to mean “having a physical or mental impairment that would substantially limit one or more of an individual’s major life activities.” 

A person other than a physician who violates this provision would be committing a Class B misdemeanor. A physician who violates this provision would be committing a Class C misdemeanor, punishable by a fine of up to $10,000.

An individual on whom an abortion is performed or attempted in violation of this provision may not be prosecuted.

A physician who violates this provision would also be engaging in unprofessional conduct for which the physician’s license may be suspended or revoked.

Civil Remedies

The bill provides for civil action to be brought against a person who violates this provision by:

• the individual on whom an abortion was performed or attempted;
• the father of the fetus, unless the pregnancy resulted from the father’s criminal conduct; or
• the maternal grandparents of the fetus if the pregnant individual is a minor.

Informed Consent

If passed, informed consent requirements (information the physician is required to inform the pregnant individual prior to an abortion) would need to include the state law prohibiting abortion of a fetus solely on the basis of race, ethnicity, sex, probability of having or diagnosis of Down syndrome, or probability of having or diagnosis of a disability.

HB 1971 would remove “fetus has a severe fetal abnormality” from the listed exceptions for when a pregnant individual may choose not to receive a verbal explanation of the results of sonogram images required under Texas law.

The bill would also remove “fetus has a severe fetal abnormality” from the listed medical emergency exemptions.

Related Legislation

Companion bill (similar) to SB 1427.

Similar to HB 87.

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