Abortion Providers: Restrictions
Texas imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Texas places medically unnecessary restrictions on where abortion services may be provided.
Providers, including private physicians, who provide more than 50 terminations 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). Additionally, an abortion facility is forced to have the same minimum standards as a surgical center or mini-hospital. Tex. Health & Safety Code Ann. §245.010 (Enacted 2001; Last Amended 2013).
A court upheld the constitutionality of the vast majority of these early TRAP regulations, but more litigation came in subsequent years, further defining the Texas abortion landscape. Women’s Med. Ctr. of N.W. Houston v. Bell, 248 F.3d 411 (5th Cir. 2001).
Abortion facilities must comply with dozens of administrative and professional-qualification requirements. 25 Tex. Admin. Code § 139.1- 139.60. For instance, state law singles out abortion facilities by requiring all personnel, including volunteers, to take a four-hour human-trafficking class while ignoring other facilities where human-trafficking survivors are likely to present themselves. Tex. Health & Safety Code Ann. §§ 171.081, 171.082 (Enacted 2015).
Abortion providers must have admitting privileges at a hospital within 30 miles of the abortion facility, and that provides obstetrical or gynecological health care services. Tex. Health & Safety Code Ann. §171.0031 (Enacted 2013). Nothing in the regulations requires hospitals to grant such privileges. 25 Tex. Admin. Code § 139.56. Tex. Health & Safety Code Ann. § 245.017 (Enacted 1997).
The admitting-privileges law was initially blocked in federal district court as an unconstitutional restriction on a woman’s ability to access abortion care. Planned Parenthood of Greater Texas v. Abbott, 2013 WL 5781583 (W.D.Tex. Oct 28, 2013). The Texas Attorney General appealed the move and the U.S. Court of Appeals for the Fifth Circuit reversed that finding. Planned Parenthood of Greater Texas v. Abbott, 2013 WL 5857853 (5th Cir. , 2013).
The Fifth Circuit denied the providers’ petition for rehearing and rehearing en banc. Planned Parenthood of Greater Texas v. Abbott, 2014 WL 5040899 C.A.5 (Tex.), Oct 09, 2014.
In a separate suit, a federal district court blocked the admitting-privileges law as applied to clinics in McAllen and El Paso, as well as the requirement that abortion facilities meet the minimum standards for a surgical center. Whole Woman’s Health v. Lakey, 2014 WL 4346480 (W.D.Tex., Aug. 29, 2014). The state filed an emergency motion to stay the injunction pending an appeal in the Fifth Circuit, which granted the stay. Whole Woman’s Health v. Lakey, 2014 WL 4930907 (5th Cir. 2014). However, the Supreme Court vacated this decision. As a result, the clinics in McAllen and El Paso were able to reopen, and the surgical-center provision did not go into effect in the state. Whole Woman’s Health v. Lakey, 2014 WL 5148719 (U.S., 2014). In 2015, the Fifth Circuit reversed the district court’s decision on both the admitting privileges and surgical-center issues. Whole Woman’s Health v. Cole, 790 F.3d 563 (5th Cir. 2015). However, the Supreme Court stayed this decision pending appeal. Whole Woman’s Health v. Cole, 135 St.Ct.2923 (June 29, 2015), Whole Woman’s Health and other providers filed for cert with the Supreme Court, which the court subsequently granted.
In June 2016, the Supreme Court handed down a landmark decision in the case — then known as Whole Woman’s Health v. Hellerstedt. In a 5-3 decision, the Supreme Court ruled that the admitting-privileges requirement and the surgical-center requirement are both unconstitutional. In the opinion, the court clarified the "undue burden" standard by which abortion restrictions are evaluated. The court found that: "…neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access." Whole Woman’s Health et al. v. Hellerstedt, Commissioner, Texas Department of State Health Services, et al., Case No. 15-274, Certiorari to the United States Court of Appeals for the Fifth Circuit. (S. Ct. 2016).
Almost immediately, the Texas Department of State Health Services drafted substantial amendments to the Texas Administrative Code around the disposal of fetal tissue. Fortunately, pro-choice litigators filed suit and the court granted a temporary injunction blocking the amendments from going into effect. Whole Woman’s Health v. Hellerstedt (March, 2017)
Restrictions on Who May Provide Abortion Services
Texas prohibits certain qualified health-care professionals from providing abortion care.
Only a physician licensed by the state may provide abortion care. Tex. Health & Safety Code Ann. § 245.010(b) (Enacted 1985; Last Amended 2003).
Texas’ post-viability abortion restriction states that no abortion may be provided in the third trimester, after viability, 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 provided in the third trimester, after viability, 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(18) (Enacted 1999; Last Amended 2005).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. NARAL Pro-Choice America opposes Texas’ post-viability restrictions because the health exceptions are dangerously narrow.
Abortion Bans Throughout Pregnancy: Ban by Week
Texas outlaws abortion after 20 weeks without an adequate exception to protect women’s health or for cases in which the pregnancy is the result of rape or incest.
Texas’ law bans abortion after 20 weeks, unless necessary to prevent a substantial permanent impairment of the life or physical health of the woman or in the case of a severe fetal anomaly. Tex. Health & Safety Code Ann. §171.044 (Enacted 2013).
Abortion Bans Throughout Pregnancy: Procedure Ban
Texas outlaws certain safe second-trimester abortion procedures with no exception to protect a woman’s health.
The law provides that no physician shall provide such an abortion procedure unless it is necessary to save the life of a woman "whose life is endangered by a physical disorder, physical illness, or physical injury, including a life endangering physical condition caused by or arising from the pregnancy." The law further provides that any physician who violates the law shall be guilty of a state jail felony—which carries a penalty of 180 days to two years in state jail and a fine of up to $10,000, and allows the "father of the fetus,"or parent of the pregnant woman if she is younger than 18 to bring a civil suit for damages against the physician. Tex. Family Code § 171.101(F) (Enacted 2017). S.8, 85th Leg., Reg. Sess. (Tex. 2017).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits certain second-trimester abortion procedures and has no exception for a woman’s health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the court has upheld a ban on a previability abortion procedure.
Abortion Bans Throughout Pregnancy: Procedure Ban
Texas outlaws the use of a D&E (dilation and evacuation) procedure unless it is necessary to save the woman’s life. The D&E procedure is the most commonly used method for second-trimester abortion. Its illegality would cause women to have to undergo more invasive and potentially more dangerous procedures. This law includes a narrow and inadequate exception to protect a woman’s health. Additionally, the law gives authority to bring a cause of action against a doctor to the state attorney general and any district or county attorney with jurisdiction. The law further provides that any physician who violates the law shall be guilty of a state jail felony—which carries a penalty of 180 days to two years in state jail and a fine of up to $10,000. A state executive or administrative official may not decline to enforce this law or adopt a construction of the law in a way that narrows its applicability, based on the official’s own beliefs concerning the requirements of the state or federal constitution, unless the law is enjoined by a state or federal court.
Tex. Family Code § 171.101(F) to (G), (Enacted 2017). S.8, 85th Leg., Reg. Sess. (Tex. 2017).
The law has been blocked by the District Court for the Western District of Texas, but is on appeal before the Fifth Circuit. Whole Woman’s Health v. Paxton, 1:17-cv-690.
A woman may not receive abortion care until at least 24 hours after the attending or referring physician orally and in person in a private and confidential setting if the pregnant woman lives less than 100 miles from the nearest abortion provider or orally by telephone on a private call or in person if she lives 100 miles or more from the nearest abortion provider: (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 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.
In 2019, this law was updated to require physicians to provide a copy of the printed materials to the women on the day of the consultation if the woman lives less than 100 miles from the nearest provider or at least 2 hours before the abortion if a woman lives 100 miles or more from the nearest provider.
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 state health department’s website.
Tex. Health & Safety Code Ann. §§ 171.011 to .016 (Enacted 2003, Last Amended 2019).
Texas requires a woman to wait at least 24 hours between the time she receives biased-counseling materials and when she can get an abortion procedure. If the woman lives fewer than 100 miles from the clinic, she must make two separate trips. If the woman lives farther than 100 miles from the clinic she must receive a written copy of the biased-counseling materials at least two hours before an abortion. Tex. Health & Safety Code Ann. §§ 171.011 to .016 (Enacted 2003, Last Amended 2019).
Insurance Coverage for Abortion
Prohibits Abortion Coverage in the State
Does Texas prohibit statewide private insurance coverage of abortion services?
Yes. Private health-insurance plans offered in the state may not include abortion coverage, with exceptions only to save a woman’s life or avert substantial and irreversible impairment of a major bodily function. Abortion coverage may be obtained through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) H.B.214a, 85th Leg., Special Session (TX 2017) at Tex. Ins. Code Ann. § 1218.001 et. seq. (Enacted 2017).
Prohibits Abortion Coverage in the Insurance Exchange
Does Texas expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions only to save a woman’s life or avert substantial and irreversible impairment of a major bodily function. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) H.B.214a, 85th Leg., Special Session (TX 2017) Tex. Ins. Code Ann. § 1696.002 (Enacted 2017).
Prohibits Abortion Coverage for Public Employees
Does Texas expressly prohibit insurance plans for public employees from covering abortion services?
Yes. Health-insurance policies provided to state employees may not include abortion coverage, with exceptions only to save a woman’s life or avert substantial and irreversible impairment of a major bodily function. Nothing in the law prohibits the purchase of abortion coverage through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) H.B.214a, 85th Leg., Special Session (TX 2017) Tex. Ins. Code Ann. § 1218.001 et. seq. (Enacted 2017).
Abortion Coverage for Low-Income People
Restricts 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, § 188.8.131.52, 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).
Young People & 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 notarized 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 abortion services may be provided to 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 that necessitates an immediate abortion to preserve the woman’s 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 by clear and convincing evidence either that: (1) she is mature and sufficiently well informed to make her own decision; or (2) parental notice or consent is not in her best interests. In most cases, she may file an application for a judicial bypass only in the county where she lives.
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: This law requires abortion providers to assume women seeking abortion care are minors unless proven otherwise. Providers must use due diligence to determine the age of the woman, including requesting to see proof of identification from all abortion patients. Further, this law requires the court to report suspected abuse to government officials, which could endanger the confidentitality of abused teens attempting to use the judicial-bypass option.
Tex. Fam. Code Ann. § 33.001 to .014 (Enacted 1999, Amended 2001 and 2007, Last Amended 2015), 101.003(a) (Enacted 1995); Tex. Occ. Code Ann. § 164.052 (Enacted 1999; Last Amended 2015); 22 Tex. Admin. Code § 165.6 (2006); Tex. Health and Safety Code Code Ann. § 245.006 9Enacted 1989; Last Amednded 2015).
Insurance Coverage & Contraception
No state measure.
Contraception Coverage for Low-Income People
Improves Insurance Coverage of Contraception
Under the state funded program, multiple cycles of oral contraceptive pills, the patch, or the ring can be prescribed at one time, up to a full year’s supply at once.
Texas Health and Human Services Commission, Women’s Health Services Division, Policy and Procedure Manual for Healthy Texas Women (HTW) II-37, 2017 (2017)
EC in the ER
Texas law ensures that sexual-assault survivors receive information about emergency contraception (EC) in hospital emergency rooms. As part of the minimum standards for the examination and treatment of a sexual-assault survivor, a health-care provider must provide a woman with information on appropriate medications prescribed to prevent pregnancy.
This law includes a refusal clause that allows any health-care professional to refuse to provide information to which they have ethical or religious objection. However, the health facility must ensure the information is provided to the survivor, without delay, by another health-care professional. Tex. Health & Safety Code Ann. § 323.005 (Enacted 2005; Last Amended 2009).
Other Important Issues
No state measure.
Refusals & Guarantees
Refusals of Medical Care
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? Allows physicians, nurses, staff members, or employees of a hospital or health-care facility, who object to participating directly or indirectly in abortion care, to refuse to do so. The refusal or willingness 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. Allows private hospitals and health-care facilities to refuse to make its facilities available for abortion services 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).
Counseling & Referral Bans
Counseling & Referral Ban
Texas prohibits the Department of Human Services and its employees from referring women, who are receiving preventive medical assistance and family-planning services through a five-year demonstration project, to organizations that provide or "promote" abortion care. Tex. Hum. Res. Code § 32.024 (2011). A court has invalidated this provision. Planned Parenthood Ass’n of Hidalgo County Texas, Inc. v. Suehs, 828 F.Supp.2d 872 (W.D. Tex. 2012).
Texas requires providers to use materials developed by the Department of Health to counsel prospective parents who receive a Down syndrome diagnosis. The materials are forbidden by law from including information about abortion. Tex. Health & Safety Code Ann. §161.652 (Enacted 2015).
Texas prohibits school districts and local health departments, hospitals, health-care systems, universities, or nonprofit organizations that contract with school districts from receiving state grants if they offer reproductive services, contraceptive services, counseling, or referrals. Tex. Education Code Ann. §38.063(e-1) (Enacted 2009).
Texas prohibits funding any individual who performs abortion that is not reimburseable under the state’s medicaid program as required by federal law, any entity that is controlled by an entity that performs abortion care, or is a franchise or affiliate of an entity that provides abortion care. Additionally, state funds cannot be used directly or indirectly to pay for the costs of HHS contractors who perform abortion care. Texas law also prohibits family planning instructions from being preparedor delivered by an individual or an entity that provides abortion care. (H.B. 1, 86th Leg., Reg. Sess. (Tex. 2019).)