HBA-AMW H.B. 1244 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1244 By: Berman State Affairs 3/15/2001 Introduced BACKGROUND AND PURPOSE Over the last decade some medical professionals have contended that a fetus at 20 weeks of gestation, and perhaps at an even earlier period of gestation, has the capability of feeling pain. House Bill 1244 requires a physician to offer a woman whose fetus has a gestational age of at least 20 weeks information and counseling on fetal pain before an abortion is performed. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS House Bill 1244 amends the Health and Safety Code relating to fetal pain during an abortion. The bill defines "fetus" as a member of the species Homo sapiens from fertilization until birth. Before an abortion is performed on a woman whose fetus has a gestational age of at least 20 weeks, the bill requires the physician performing the abortion or the physician's agent to offer to the woman information and counseling on fetal pain. The bill specifies the information that must be included in the information and counseling. Before an abortion is performed, the bill provides that the pregnant woman must certify in writing that the information has been provided to her. The bill requires a physician performing an abortion or the physician's agent to administer an anesthetic or analgesic to eliminate or alleviate organic pain to the fetus caused by the particular method of abortion to be performed. H.B. 1244 sets forth provisions regarding exceptions to these requirements for medical emergencies. The bill also sets forth provisions regarding exceptions to the administration of the analgesic or anesthetic to the fetus due to risks to the survival of the fetus, risks to the woman's life or physical health, or the woman's refusal of consent. H.B. 1244 provides that a person who recklessly performs an abortion in violation of these provisions commits a state jail felony. The bill also provides that a person who recklessly performs such an abortion is liable to the woman on whom the abortion is performed for the actual damages incurred by the woman and exemplary damages. The bill also provides that standards for the recovery of exemplary damages, factors precluding recovery of exemplary damages, and limitations on the amount of recovery of exemplary damages do not apply. If judgment is rendered in favor of the claimant, the bill requires the court to also award reasonable attorney's fees to the claimant against the defendant. If judgment is rendered in favor of the defendant and the court finds that the suit is frivolous and brought in bad faith, the bill requires the court to award reasonable attorney's fees to the defendant against the claimant. The bill also specifies that a woman on whom an abortion has been performed is not criminally or civilly liable under these provisions. In a civil action or criminal proceeding, the bill requires the court to determine, on its own motion or the motion of any party, whether the identity of a woman on whom an abortion has been performed must be protected from public disclosure. The bill sets forth procedures for protecting the woman's identity from public disclosure. The bill also authorizes a woman on whom an abortion has been performed, notwithstanding a court order for protection of privacy, to consent to the disclosure of her identity and specifies that provisions regarding protection of privacy do not authorize the concealment of the identity of the claimant or any witnesses from the defendant. EFFECTIVE DATE September 1, 2001.