ANTI-CHOICE LAWS
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until at least 24 hours after the attending or referring physician orally: (1) informs her of the probable gestational age of the "unborn child"; (2) describes the medical risks associated with the procedure, including, when medically accurate, infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility; and (3) describes the risks of carrying the pregnancy to term.
In addition, at least 24 hours prior to an abortion, the woman must receive a state-mandated lecture by the physician or physician's agent, by telephone or in person, that must include: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support even if he has offered to pay for the abortion; and (3) that she has a right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion.
The state-prepared materials must: (1) describe the anatomical and physiological characteristics of the fetus at two-week gestational increments, including the possibility of survival; (2) describe the medical risks associated with the procedure and with carrying a pregnancy to term; (3) state that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care and that the "father" is liable for child support even if he has offered to pay for an abortion; and (4) provide a comprehensive list of public and private agencies and services, including adoption agencies, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent or provide a toll-free 24-hour hotline that can be called to obtain such a list. If the woman chooses to review the materials, she may not obtain an abortion until at least 24 hours after she has been given the materials in person or 72 hours after the materials have been mailed to her.
The state-prepared materials must be available on the department of health's website.
Tex. Health & Safety Code Ann. §§ 171.011 to .016 (Enacted 2003).
Additionally, the state-prepared materials must include enlarged color photographs of fetuses. Tex. Dep't. of Health, A Woman's Right to Know, (2003).
Public Facilities and Employees Restriction
No public funds shall be used to pay the direct or indirect costs, including overhead, rent, phones, and utilities, of abortion procedures provided by contractors of the Department of State Health Services.
H.B. 1, 80th Leg., Reg. Sess. (Tex. 2007).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Texas allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, nurses, staff members, or employees of a hospital or health care facility, or private hospitals, or health care facilities.
What does the refusal clause allow? No physician, nurse, staff member, or employee of a hospital or health care facility, who objects to participating directly or indirectly in an abortion, may be required to participate. The refusal or willingness of a person to participate may not be a basis for discrimination in employment or education. A person whose rights are violated may bring an action for relief, including back pay and reinstatement. No private hospital or health care facility may be required to make its facilities available for the performance of abortion unless a physician determines that the woman's life is immediately endangered.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? Yes, in emergency situations no private hospital or health care facility may refuse admittance.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Tex. Occ. Code Ann. §§ 103.001 to .004 (Enacted 1977; Last Amended 1999).
Restrictions on Low-Income Women's Access to Abortion
Texas prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the procedure is necessary to preserve the life of a woman or the pregnancy is the result of rape or incest. 1 Tex. Admin. Code § 354.1167; 2006 Texas Medicaid Provider Procedures Manual, § 36.4.18.1, p. 36-43, and B.1 Abortion Certification Statements Form (2006), at http://www.tmhp.com.
An invalid statute provides that a woman eligible for state medical assistance for general health care may not obtain public funds to pay for an abortion unless the procedure is necessary to preserve the woman's life. Tex. Health & Safety Code Ann. § 32.005 (Enacted 1989). This statute conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of life endangerment, rape, or incest.
The Texas Supreme Court held that the state is not obligated to fund all medically necessary abortions. Bell v. Low-Income Women of Tex., 95 S.W.3d 253 (Tex. 2002). The court reversed a lower court, which had ruled that statutory provisions prohibiting state funds from paying for abortion, except in cases of life endangerment, rape or incest, are unconstitutional under the Equal Rights Amendment of the Texas Constitution. Low-Income Women of Tex. v. Bost, 38 S.W.3d 689 (Tex. Ct. App. 2000).
Restrictions on Young Women's Access to Abortion
Texas law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 18 who has never been married and has not had the disabilities of minority removed.
What is required - parental notice or parental consent? Both notice and consent.
Who must have knowledge and provide consent? One parent.
Are there other trusted adults who may have knowledge and provide consent instead? No.
What is the process for providing notice and obtaining consent? A young woman may not obtain an abortion until Texas' notice and consent requirements are fulfilled.
A young woman may not obtain an abortion until at least 48 hours after actual notice has been delivered, in person or by telephone, by the attending physician to one parent, unless the parent waives notice by an affidavit. If actual notice is not possible after a reasonable effort, 48 hours constructive notice by certified mail must be given. If notice is delivered by certified mail, the 48-hour period begins to run at the time of mailing.
In addition, in 2005, Texas enacted a law that requires a young woman to obtain the written consent of one parent prior to obtaining an abortion by providing licensure penalties for doctors who do not obtain parental consent or proof of judicial bypass. In September 2006, the Texas Medical Board adopted an administrative rule which requires the written consent of a parent to be notarized before an abortion procedure may be performed on a minor.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a medical emergency exists. A medical emergency is defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or to "avoid a serious risk of substantial and irreversible impairment of a major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order finding by a preponderance of the evidence that: (1) she is mature and sufficiently well informed to make her own decision; (2) parental notice is not in her best interests; or (3) parental notice may lead to physical, sexual, or emotional abuse of the minor.
Are there other significant requirements under the law? The Texas Department of Health must produce and distribute informational materials that explain minors' rights under this law, including the judicial bypass procedure, and provide information relating to alternatives to abortion and health risks associated with abortion. Also, the parent's written consent must be notarized.
Has a court considered the constitutionality of this law? No.
Other information about the law: None.
Tex. Fam. Code Ann. §§ 33.001, .004 to .08, .11 (Enacted 1999), .002, .003, (Enacted 1999; Last Amended 2001), .009, .010 (Enacted 1999; Last Amended 2007), 101.003(a) (Enacted 1995); Tex. Occ. Code Ann. § 164.052 (Enacted 1999; Last Amended 2005); 22 Tex. Admin. Code § 165.6 (2006).
Targeted Regulation of Abortion Providers (TRAP)
Texas imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Texas places medically unnecessary restrictions on where abortions may be performed.
Providers, including private physicians, who perform more than 50 abortions per year must become licensed as abortion facilities. Tex. Health & Safety Code Ann. § 245.002 (Enacted 1989), Tex. Health & Safety Code Ann. § 245.004 (Enacted 1989; Last Amended 2003). The annual renewal license fee is $2,500 per year. 25 Tex. Admin. Code §139.22.
Abortion facilities must comply with dozens of administrative and professional qualification requirements. 25 Tex. Admin. Code § 139.1, 139.60. Violators are subject to fines of up to $1000 per day, per violation. Tex. Health & Safety Code Ann. § 245.017 (Enacted 1997).
A court upheld the constitutionality of the vast majority of these TRAP regulations. Women's Med. Ctr. of N.W. Houston v. Bell, 248 F.3d 411 (5th Cir. 2001).
Restrictions on Who May Perform Abortions
Texas prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed by the state may perform an abortion. Tex. Health & Safety Code Ann. § 245.010(b) (Enacted 1985; Last Amended 2003).
PRO-CHOICE LAWS
Low-Income Women's Access to Family Planning
Texas provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for women residing in Texas who are U.S. citizens or qualified immigrants ages 18 through 44 with incomes at or below 185% of the federal poverty level who are not otherwise eligible for state and federal health care programs and who have no other family planning insurance coverage.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: contraceptive education and counseling; FDA-approved and Medicaid-covered birth control including intrauterine devices, diaphragms, male and femal condoms, vaginal spermicides and contraceptive film, Norplant, Depo-Provera injections, and prescription methods (patches, rings, pills) within the Medicaid formulary; voluntary sterilization; family planning examinations including screening for diabetes, STIs, high blood pressure, and breast and cervical cancers and assessment of health risk factors in conjunction with a family planning encounter; and, laboratory and radiology procedures associated with family planning procedures.
The waiver will expire on Dec. 31, 2011.
Tex. Women's Health Program, Tex. Health and Human Svcs. Comm.., at http://www.hhsc.state.tx.us/womenshealth.htm (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
OTHER LAWS
Post-Viability Abortion Restriction
Texas' post-viability abortion restriction provides that no abortion may be performed in the third trimester on a viable fetus unless necessary to preserve the woman's life or prevent a "substantial risk of serious impairment" to her physical or mental health or if the fetus has a severe and irreversible abnormality. Tex. Health & Safety Code Ann. §§ 170.002 (Enacted 1999), 170.001(3) (Enacted 1999; Last Amended 2001).
Another statute limits the health exception even further, stipulating that no abortion may be performed in the third trimester on a viable fetus unless necessary to preserve the woman's life or prevent "severe, irreversible brain damage" or paralysis or if the fetus has a severe and irreversible "brain impairment." Tex. Occ. Code § 164.052 (Enacted 1999; Last Amended 2005).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Texas' post-viability restrictions because the health exceptions are dangerously narrow.
