Texas Omnibus Abortion Bill (SB 8)
This law was last updated on Jan 29, 2018
SB 8 would amend Texas law regarding certain prohibited abortions and the treatment and disposition of a human fetus, human fetal tissue, and other tissue resulting from pregnancy.
“Partial Birth” Abortions
The bill would prohibit a physician or other person from knowingly performing a “partial birth” abortion, unless it was necessary to save the life of a pregnant patient 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.
A person who violates this provision would face a state jail felony. Additionally, the father of the fetus or a parent of the mother of the fetus, if the mother is younger than 18 years of age at the time, may bring a civil action to obtain appropriate relief. A person may not maintain an action if they consented to the “partial birth” abortion.
The bill defines “partial birth” abortion to mean:
“an abortion in which the person performing the abortion:
(A) for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus, deliberately and intentionally vaginally delivers a living fetus until:
- for a head-first presentation, the entire fetal head is outside the body of the mother; or
- for a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother; and
(B) performs the overt act described in Paragraph (A), other than completion of delivery, that kills the partially delivered living fetus.”
Dismemberment Abortion Ban
An amendment was added in the house which would prohibit a person from intentionally performing a “dismemberment abortion” unless the “dismemberment abortion” is necessary in a medical emergency.
The bill defines “dismemberment abortion” to mean:
[…]an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of the unborn child’s body to cut or rip the piece from the body. The term does not include an abortion that uses suction to dismember the body of an unborn child by sucking pieces of the unborn child into a collection container. The term includes a dismemberment abortion that is used to cause the death of an unborn child and in which suction is subsequently used to extract pieces of the unborn child after the unborn child’s death.
A person who violates this provision would be committing a felony.
This provision targets a procedure known as dilation and evacuation (D and E), which is frequently used during second-trimester abortions. According to the American Congress of Obstetricians and Gynecologists, an abortion using suction aspiration can be performed up to 14 weeks’ gestation, but after 14 weeks the D and E procedure must be used to perform an abortion. As such, dilation and evacuation bans, depending upon their language, may ban all surgical abortion past 14 weeks’ gestation. (Source.)
Disposition of Embryonic and Fetal Tissue Remains
The bill would require health-care facilities to dispose of embryonic and fetal tissue remains that are passed or delivered at the facility by:
- incineration followed by interment; or
- steam disinfection followed by interment.
Any ashes resulting from cremation or incineration may be interred or scattered in any manner as authorized by law for human remains, and may not be placed in a landfill.
A facility which violates this provision may lose their license.
The Department of State Health Services would be required to establish and maintain a registry of:
- funeral homes and cemeteries willing to provide free common burial or low-cost private burial; and
- private non-profit organizations which provide financial assistance for the costs associated with the final disposition of fetal remains.
Donation of Human Fetal Tissue and Other Tissue Resulting from Pregnancy
The bill would prohibit a person from donating human fetal tissue, placenta, or an umbilical cord.
Only an authorized facility may donate human fetal tissue. An authorized facility may donate human fetal tissue only to an accredited university for use in research that has been approved by an institutional review board. Only an authorized facility may donate placenta or an umbilical cord.
Such facilities may not donate human fetal tissue, placenta, or an umbilical cord that is obtained from an elective abortion.
Additionally, such facilities may not donate human fetal tissue unless the facility has obtained the written, voluntary, and informed consent of the patient from whose pregnancy the fetal tissue is obtained.
The bill would make it an offense for a person to offer a woman monetary or other consideration to have an abortion for the purpose of donating human fetal tissue or consent to the donation of human fetal tissue; or knowingly or intentionally solicit or accept tissue from a fetus gestated solely for research purposes.
Violation of this provision would be a Class C misdemeanor, punishable by a fine of up to $10,000.
Authorized facilities would be required to retain the medical records of patients who consent to the donation of human fetal tissue for certain periods of time. Such facilities would need to submit an annual report to the health department that includes for each donation:
- the specific type of fetal tissue donated; and
- the recipient of the donation.
Purchase and Sale of Human Fetal Tissue
SB 8 would prohibit a person from knowingly offering to buy, offering to sell, acquiring, receiving, selling, or otherwise transferring any human fetal tissue for valuable consideration.
The bill defines human fetal tissue to mean “any gestational human organ, cell, or tissue from an unborn child.”
A person who violates this provision would face a state jail felony. This would not apply to a person under contract with an accredited university or for any of the above authorized donations.
If passed, this law would take effect September 1, 2017.
Companion bill to HB 200.
Passed the senate on March 15, 2017, by a 24-6 vote.
Passed the house on May 20, 2017, by a 93-45 vote.
Approved for final passage in the senate on May 26, 2017, by a 22-9 vote.
Signed by Gov. Greg Abbott (R) on June 6, 2017.
On August 31, 2017, U.S. District Court Judge Lee Yeakel issued a temporary restraining order, blocking the provision banning dilation and evacuation abortions.
A U.S. District Court Judge issued a permanent injunction on November 22, 2017, blocking the state from enforcing the dilation and evacuation ban.
U.S. District Court Judge David Ezra temporarily blocked the fetal burial provision on January 29, 2018.