SB2880 - Relating to abortion, including civil liability for distribution of abortion-inducing drugs; making conforming changes and harmonizing conforming provisions; authorizing a private civil right of action.

      By: Hughes, et al. S.B. No. 2880     A BILL TO BE ENTITLED   AN ACT   relating to abortion, including civil liability for distribution of   abortion-inducing drugs; making conforming changes and harmonizing   conforming provisions; authorizing a private civil right of action.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act shall be known as the Women and Child   Protection Act.          SECTION 2.  Subtitle H, Title 2, Health and Safety Code, is   amended by adding Chapter 171A to read as follows:   CHAPTER 171A. ABORTION-INDUCING DRUGS AND FACILITATION OF   ABORTION; ENFORCEMENT OF ABORTION LAWS   SUBCHAPTER A. GENERAL PROVISIONS           Sec. 171A.001.  DEFINITIONS. In this chapter:                 (1)     "Abortion" has the meaning assigned by Section   245.002.                 (2)     "Abortion-inducing drug" has the meaning assigned   by Section 171.061.                 (3)     "Abortion provider" means a person that performs   elective abortions.                 (4)     "Elective abortion" means an abortion performed or   induced by a licensed physician that is not performed or induced in   response to a medical emergency.                 (5)     "Information content provider" means a person who   is responsible, wholly or partly, for the creation or development   of information provided through the Internet or any other   interactive computer service.                 (6)     "Interactive computer service" means an   information service, system, or access software provider that   provides or enables computer access by multiple users to a computer   server, including specifically a service or system providing access   to the Internet and such systems operated or services offered by   libraries or educational institutions. The term does not include:                       (A)     an Internet service provider or the   provider's affiliates or subsidiaries;                       (B)  a search engine; or                       (C)     a cloud service provider that solely provides   access or connection to or from an Internet website or other   information or content on the Internet or on a facility, system, or   network that is not under the provider's control, including   transmission, downloading, intermediate storage, access software,   or other services.                 (7)     "Medical emergency" has the meaning assigned by   Section 171.002.           Sec.   171A.002.     CONSTRUCTION OF CHAPTER RELATED TO   LIABILITY. This chapter may not be construed to impose liability on   the speech or conduct of:                 (1)     an Internet service provider or the provider's   affiliates or subsidiaries;                 (2)  a search engine; or                 (3)     a cloud service provider that solely provides   access or connection to or from an Internet website or other   information or content on the Internet or on a facility, system, or   network that is not under the provider's control, including   transmission, downloading, intermediate storage, access software,   or other services.   SUBCHAPTER B. PROTECTION FROM ABORTION-INDUCING DRUGS           Sec.   171A.051.     PROHIBITIONS RELATED TO ABORTION-INDUCING   DRUGS. (a) Except as provided by Subsection (b), a person may not:                 (1)     manufacture or distribute an abortion-inducing   drug in this state; or                 (2)     mail, transport, deliver, prescribe, or provide an   abortion-inducing drug in any manner to any person or location in   this state.           (b)     Notwithstanding any other law, Subsection (a) does not   prohibit:                 (1)     speech or conduct protected by the First Amendment   to the United States Constitution, as made applicable to the states   through the United States Supreme Court's interpretation of the   Fourteenth Amendment to the United States Constitution or protected   by Section 8, Article I, Texas Constitution;                 (2)     conduct this state is prohibited from regulating   under the Texas Constitution or federal law, including the United   States Constitution;                 (3)     conduct of a pregnant woman who aborts or seeks to   abort the woman's unborn child;                 (4)     the possession, distribution, mailing, transport,   delivery, or provision of an abortion-inducing drug for a purpose   that does not include performing, inducing, attempting, or   assisting an abortion;                 (5)     the possession, distribution, mailing, transport,   delivery, or provision of an abortion-inducing drug for the purpose   of enabling a licensed physician to treat a pregnant woman during a   medical emergency;                 (6)     the possession of an abortion-inducing drug for   purposes of entrapping a person that violates this section; or                 (7)     conduct engaged in by a person under the direction   of a federal agency, contractor, or employee to carry out a duty   under federal law, if prohibiting that conduct would violate the   doctrine of preemption or intergovernmental immunity.           Sec.   171A.052.     EXCLUSIVE ENFORCEMENT; EFFECT OF OTHER LAW.   (a) Notwithstanding any other law, this subchapter may only be   enforced through a qui tam or private civil action brought under   Subchapter C, D, or E.           (b)     No other direct or indirect enforcement of this   subchapter may be taken or threatened by this state, a political   subdivision of this state, a district or county attorney, or any   officer or employee of this state or a political subdivision of this   state against any person, by any means whatsoever, and no violation   of this subchapter may be used to justify or trigger the enforcement   of any other law or any type of adverse consequence under any other   law, except as provided in Subchapter C, D, or E.           (c)     This section does not preclude or limit the enforcement   of any other law or regulation against conduct that is   independently prohibited by the other law or regulation and that   would remain prohibited by the other law or regulation in the   absence of this subchapter.   SUBCHAPTER C. CIVIL LIABILITY FOR DISTRIBUTION OF   ABORTION-INDUCING DRUGS           Sec.   171A.101.     CIVIL ACTION FOR DISTRIBUTION OF   ABORTION-INDUCING DRUGS. (a) Notwithstanding any other law and   except as provided by this subchapter, a person who manufactures,   distributes, mails, prescribes, or provides an abortion-inducing   drug, or who engages in any conduct prohibited by Section 171A.051   is strictly, absolutely, and jointly and severally liable for:                 (1)     the wrongful death of an unborn child or pregnant   woman from the use of the abortion-inducing drug; and                 (2)     personal injury of an unborn child or pregnant   woman from the use of the abortion-inducing drug.           (b)     A claimant may not bring an action under this section if   the action is preempted by 47 U.S.C. Section 230(c).           (c)     A person who engages in conduct described by Subsection   (a) is liable for damages resulting from the death or personal   injury sustained by an unborn child or pregnant woman if the   person's conduct contributed in any way to the death or injury,   regardless of whether the person's conduct was the actual or   proximate cause of the death or injury.           (d)     Notwithstanding any other law, the mother or father of   an unborn child may bring a civil action under this section for the   wrongful death of the unborn child from the use of an   abortion-inducing drug, regardless of whether the other parent   brings a civil action for the wrongful death. The biological father   of an unborn child may bring the action regardless of whether the   father was married to the unborn child's mother at the time of the   unborn child's conception or death.           (e)     Notwithstanding any other law, a civil action may not be   brought under this section:                 (1)     against the woman who used or sought to obtain   abortion-inducing drugs to abort or attempt to abort her unborn   child;                 (2)     against a person that acted under the direction of   a federal agency, contractor, or employee who is carrying out   duties under federal law if the imposition of liability would   violate the doctrine of preemption or intergovernmental immunity;   or                 (3)     by any person who impregnated the woman who used   abortion-inducing drugs through conduct constituting sexual   assault under Section 22.011, Penal Code, or aggravated sexual   assault under Section 22.021, Penal Code, or by another person who   acts in concert or participation with that person.           (f)     Notwithstanding any other law, including rules of civil   procedure adopted under Chapter 26, Civil Practice and Remedies   Code, an action brought under this section may not be litigated on   behalf of a claimant class or a defendant class, and a court may not   certify a class in the action.           Sec.   171A.102.     DEFENSES. (a) It is an affirmative defense   to an action brought under Section 171A.101 that the defendant:                 (1)     was unaware the defendant was engaged in the   conduct described by Section 171A.101(a); and                 (2)     took every reasonable precaution to ensure the   defendant would not manufacture, distribute, mail, prescribe, or   provide or aid or abet the manufacture, distribution, mailing,   prescription, or provision of abortion-inducing drugs.           (b)     A defendant has the burden of proving an affirmative   defense under Subsection (a) by a preponderance of the evidence.           (c)     Notwithstanding any other law, the following are not a   defense to an action brought under Section 171A.101:                 (1)  ignorance or mistake of law;                 (2)     a defendant's belief the requirements or   provisions of this chapter are unconstitutional or were   unconstitutional;                 (3)     a defendant's reliance on a court decision that has   been vacated, reversed, or overruled on appeal or by a subsequent   court, even if the court decision had not been vacated, reversed, or   overruled when the cause of action accrued;                 (4)     a defendant's reliance on a state or federal court   decision that is not binding on the court in which the action has   been brought;                 (5)     a defendant's reliance on a federal statute,   agency [Text truncated for display. 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