SEVENTY-FIFTH DAY — FRIDAY, MAY 19, 2017

CSSB 8, A bill to be entitled An Act relating to certain prohibited abortions and the treatment and disposition of a human fetus, human fetal tissue, and embryonic and fetal tissue remains; creating a civil cause of action; imposing a civil penalty; creating criminal offenses.

[Representative Turner raised a point of order against further consideration of CSSB 8 under Rule 4, Section 32(c)(3) of the House Rules on the grounds that the committee report is incorrect. The speaker overruled the point of order.]

REPRESENTATIVE BURKETT: Members, CSSB 8 aligns Texas law with federal law as it relates to the ban on partial-birth abortions and prohibition of the sale or transfer of fetal tissue and organs for a profit. Recent events have highlighted the fact this federal ban alone is not sufficient to prosecute such offenses. In a letter dated December 7, 2016 from the Select Investigative Panel of the U.S. House Committee on Energy and Commerce, a Texas doctor was referred to Attorney General Ken Paxton for violations of the federal partial-birth abortion ban. However, without a concurrent prohibition on state law, the State of Texas currently lacks the authority to enforce the existing ban on partial-birth abortion, leaving federal law enforcement with the sole authority to assert criminal charges in these cases. Similarly, Title 42, Section 289g-2(a) of the Federal Code states that it is "unlawful for any person to knowingly acquire, receive or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce." However; this prohibition by itself is inadequate to ensure satisfactory compliance with the intent of the law, as these offenses must first impact interstate commerce in order to fall under federal jurisdiction and thereafter are subject to the discretion of federal law enforcement. By aligning state and federal statute, Texas law enforcement will have clear authority to investigate and prosecute any violations of the existing partial-birth abortion ban.

In that instance, HB 200 will, first of all, align state and federal law to prohibit partial-birth abortion––a ban which was upheld by the United States Supreme Court in 2007––and prohibit the sale or donation of human fetal tissue acquired as a result of an elective abortion. However, this does not affect supporting cells or tissue derived from a pregnancy, associated maternal tissue, the umbilical cord, or the placenta. It will increase criminal penalties for the purchase or sale of human fetal tissue. It prohibits the solicitation or acceptance of any tissue from human fetuses gestated solely for research purposes. It prohibits offering or providing a woman with financial incentives to undergo an abortion procedure for the purpose of donating or otherwise conveying human fetal tissue, and it clarifies that hospitals, teaching hospitals, ambulatory surgical centers, or birthing centers are only permitted to donate fetal tissue from a nonelective abortion or miscarriage to an accredited public institution of higher education for the purpose of academic research.

I want to emphasize that this bill does not prohibit the use of human fetal tissue for diagnostic or pathological testing specifically for the mother for a criminal investigation and for the disposition of human remains. I must also highlight that it excludes donation restrictions for supporting cells or tissue derived from a pregnancy, the placenta, and the umbilical cord. The bill is not intended to prevent the use of tissue not related to the fetus, like the blood from the umbilical cord which can be donated to blood banks. The bill allows for disposition procedures that are practiced worldwide and are known as sensitive disposal. It involves ensuring that human bodies are separated from medical waste and given the respect of cremation and burial. These procedures are honored in a universal respect beyond religious, cultural, or societal norms for the nature of the human person. Under this bill, hospitals and other facilities that provide health or medical care to pregnant women must dispose of such remains in an appropriate matter such as internment or cremation. Costs associated with the burial will be offset by the creation of a burial or cremation assistance registry to identify funeral homes or cemeteries that will provide free or low-cost services and by issuance of financial assistance through a new ethical fetal remains grant program at DSHS using private donations.

Members, as I've stated, this bill is meant to address the sincere concerns expressed by tens of thousands of Texans regarding the donation and potential sale of human fetal tissues derived from elective abortions and to continue our respect for life by providing for the dignified disposition of remains. And before I take any amendments or questions, I do have one amendment to offer.

REPRESENTATIVE FARRAR: I'd like to ask you about the bill first.

BURKETT: I would like to add the amendment first, please.

FARRAR: No, I have a question on the bill.

BURKETT: I'm happy to answer it. I do need to get this amendment on the bill if that's okay.

FARRAR: Just a moment. Mr. Speaker, once she offers the amendment, would I be limited to my questions on the amendment? Because I actually have questions on the bill prior to being amended. I don't know what amendment she's offering.

CHAIR (Kacal in the chair): The amendment appears to be a severability clause. It looks like you could ask almost anything on the bill.

FARRAR: Well, I want to be able to ask about the bill prior to amendment.

BURKETT: That's fine.

FARRAR: So you've said that, and a third of the bill is––or one of the three parts of the bill deals with federal law that's already in place.

BURKETT: That is correct.

FARRAR: So why––and federal law applies to Texas whether we have a law in place or not, correct?

BURKETT: Well, without a current prohibition on state law, the State of Texas currently lacks the authority to enforce the existing ban on partial-birth abortion. The bill as it is written mirrors as closely as possible exactly what federal law says, to make sure that when we have an incident here in the State of Texas that we are able to, on the state level, address that incident ourselves.

FARRAR: Right, but in law school they taught us that federal laws apply to us whether there's a state law in place or not. So I'm just wondering, why are we passing a law that's already law and is already applicable to us?

BURKETT: Again, to give the State of Texas the authority to follow up on it and not have to rely on the federal government to take care of it.

FARRAR: But I'm saying we already have that authority.

BURKETT: We do not have the authority to directly take care of it. That has been determined by this letter that came to Attorney General Paxton.

FARRAR: Well, all right, I won't argue with that. But it is true, I mean, we're already––if a federal law is passed, then we are subject to federal law, and I was just curious why we were passing a federal law. But I had some other questions dealing with tissue research. So your bill denies a woman who's had an elective abortion the ability to donate the tissue for research, correct?

BURKETT: That is correct.

FARRAR: Well, are you aware that there are public health benefits derived from fetal tissue research?

BURKETT: Yes, there are.

FARRAR: All right. Are you aware that the vaccine for chicken pox was created by Nobel Prize-winning scientists in their research that was on fetal tissue?

BURKETT: I'm unadvised, but I will take your advice on that.

FARRAR: Did you consult with any research institutions before filing this bill?

BURKETT: Yes, we did. We consulted with The UT System on this.

FARRAR: Are you––

BURKETT: And the purpose of the bill is to take money out of the fetal tissue donation and remove the middleman dealing with that donation which could have the result of fetal tissue becoming a commodity on the market.

FARRAR: Well, are you familiar with this? There was a statement that was issued by the Association of American Medical Colleges in 2016. There were 62 medical research institutions that signed this statement expressing concerns about negative impacts that would result from restrictions on fetal donation. Are you aware of that?

BURKETT: Section 2 of the bill specifically exempts existing cell lines used for university research that is already there. From speaking with universities on this issue, there would be little to no negative effect on existing research because these cell lines could continue to propagate for decades, and many of the ones they are using today were collected in the and '60s. It does not limit research on nonelective abortion tissue or miscarriage tissue, so there would still be a supply going for research uses.

FARRAR: Well, I don't understand why you're making a difference between one type of fetal tissue and the other. Are you familiar that in 2015 in an open letter to Congress, 41 scientists called for an end to political interference with science and research? In fact, they're quoted as saying, “Fetal tissue research has already saved and improved the lives of countless people. . . . But we cannot allow political agendas to undermine our nation’s legacy of leadership in medical and scientific innovation." Are you familiar with that statement?

BURKETT: Again––again, this bill simply mirrors what's at the national level, at the federal level. And again, as I mentioned, I have discussed this with the universities, and we do have an allowance for fetal research in the current lines of research cells that are available. They would have not been compromised.

FARRAR: Well, these are national universities, I want to point out. Are you aware that the donation of fetal research for medical research has helped scientists and doctors in their work in these diseases and disorders: Alzheimer's, Parkinson's, AIDS, blindness, cancer, diabetes, prevention of miscarriages and birth disorders, autism, schizophrenia––are you aware of that?

BURKETT: Again, as I stated, the research is still available for that to be completed, and the cell lines that we have are still available and have a viable use for many years to come. And there will be additional coming from nonelective abortions. This is simply to make sure that the tissues from these aborted babies are not turned into a commodity in the research department, but research can still be done.

FARRAR: How do you make a difference between an elective abortion and a nonelective abortion, though? I mean, I'm just concerned about––you've made a distinction. And so how do you get there?

BURKETT: An elective abortion or a nonelective? One that falls outside of the confines to "save the life of a mother whose life is endangered by physical disorder, physical illness, physical injury, including a life-endangering physical condition caused by or arising out of the pregnancy" is the determination.

FARRAR: So she's had a miscarriage. Something's gone wrong, in other words, and that's––

BURKETT: A miscarriage is not abortion. A miscarriage is a miscarriage.

FARRAR: I'm just saying, something has gone wrong is what you're saying. And so you're limiting the research to those situations and taking away the research abilities in all other situations, in elective abortions.

BURKETT: There's still research available for fetuses that are coming from nonelective abortions or miscarriages, and as I mentioned earlier, the stem cell lines are still there from previous donations and have got a viability for many years to come.

FARRAR: And my concern is that it's significantly less that's available.

[Amendment No. 1 by Burkett was laid before the house.]

REPRESENTATIVE E. RODRIGUEZ: Mr. Speaker, so now that this amendment's been laid out, now we have to limit our questions to this amendment?

CHAIR: Yes, but it is a very broad amendment.

E. RODRIGUEZ: So we can ask general questions about the bill?

CHAIR: As it relates to the severability clause.

E. RODRIGUEZ: Say it one more time. I'm sorry, Mr. Speaker.

CHAIR: You can ask any questions that relate to the severability clause.

BURKETT: This amendment simply clarifies that should any portion of this bill be challenged in court, the portion that has already been found constitutional will not be affected.

REPRESENTATIVE ARÉVALO: Are you familiar with how the Catholic Church testified they would provide common burial?

BURKETT: I am aware that they have notified us they will. Yes, ma'am.

ARÉVALO: Are you familiar that the Catholic Church is going to store the untreated tissue in containers until they get enough of them to fill a casket? Are you aware of that?

BURKETT: I'm not aware of the way you're stating it. My understanding is they do divide up the individual babies so that they have individual––they're not in a mass dump, so to speak, to give the proper human attention to those individuals, and then they bury them in a casket.

ARÉVALO: Are you aware then that they would have a mass grave with all the containers inside the casket that would be then given a special funeral or mass for the unborn and buried in a cemetery where the tissue could be prayed over by any member of the public? Are you familiar with that detail?

BURKETT: I'm sorry. I didn't hear you. Could you repeat, please?

ARÉVALO: I said, are you familiar with the fact that the Catholic Church would then have a mass grave with all the containers inside the casket that would then be given a special funeral or mass for the unborn? Are you familiar with that?

BURKETT: I'm going to take your word on that one.

ARÉVALO: Okay. Does a mass grave of tiny containers of embryonic tissue sound very dignified to you?

BURKETT: You know, I feel like the Catholic Church really values life, and I think there's much more dignity to that than to be ground up and flushed down the drain, yes, ma'am.

ARÉVALO: Does it make sense to require abortion providers to contact with a third party such as a Catholic conference who is potentially hostile to their work? Could this present any problems?

BURKETT: I believe that within the bill we have set up a registry where they can contact anybody that's willing to help them with the cost of that. And there are providers that will help them take care of the remains through cremation or other requirements within the bill. So it's not kept strictly to just the Catholics' assistance.

ARÉVALO: Would this pose any freedom of religion problems if people were forced to chose a religious entity to help with the disposal?

BURKETT: They're not forced. They're not restricted in this bill to do that.

E. RODRIGUEZ: Representative, did you consult with any medical associations in drafting this bill?

BURKETT: In drafting the bill? No, that was done through Lege Council, of course, as all of our bills are.

E. RODRIGUEZ: And are you aware that the Texas Medical Association has concerns about this bill?

BURKETT: I am unadvised.

E. RODRIGUEZ: You're not advised?

BURKETT: It didn't come out of the committee. It didn't come out of committee hearing.

E. RODRIGUEZ: Well, what committee are you referring to?

BURKETT: The committee it was heard in.

E. RODRIGUEZ: In State Affairs?

BURKETT: Correct.

E. RODRIGUEZ: Well, yes, they did testify against it in State Affairs, or at least there was a card. I'm on that committee, so I remember

BURKETT: Was it a card dropped? I'm sorry, if there was a card dropped, I was unadvised.

E. RODRIGUEZ: Representative, I just want to let you know that in State Affairs we did definitely––Texas Medical Association came out against this. In the most recent Supreme Court decision on abortion, the court struck down parts of our own state law because it burdens women's access and had no health benefit for women. Do you have any evidence that this regulation would help or benefit women or protect women's health in any way?

BURKETT: Well, actually, in this bill, dilation and extraction––and we did have committee testimony on this from a gynecologist that attended. And in the procedure that is used for partial-birth abortions, dilation and extraction, where the cervix is dilated 6 centimeters, that woman is put at greatly enhanced risk. That's the aspect that bans partial-birth abortion. It does not limit exceptions of the abortions. So I think that there is a health aspect of this that's important to look at for our women.

E. RODRIGUEZ: Is that the main purpose of the bill? To try to protect women's health? Would you say that's the main purpose of this?

BURKETT: The main purpose of this bill is to put us on the same level of protection against partial-birth abortion as the federal law. That's one of the main purposes of the bill.

E. RODRIGUEZ: That's one of the main purposes.

BURKETT: But you were just saying there was no health benefit. There absolutely is in limiting partial-birth abortion.

E. RODRIGUEZ: So one of the main components is to try to limit partial-birth abortions?

BURKETT: It's to align Texas law with federal law as it relates to partial-birth abortion bans and the ability to enforce that law.

E. RODRIGUEZ: Are you familiar with the federal district court's opinion that found rules similar to this bill unconstitutional? For instance, while insisting the amendments confer dignity on the unborn––that aspect of it––are you aware that federal courts have deemed that unconstitutional?

BURKETT: Which federal court case are you referring to Mr. Rodriguez?

E. RODRIGUEZ: Oh, the case––well, I don't have that information exactly. I'm sorry. I don't know the exact court on that. I'll get back with you on that, though.

BURKETT: Okay, that's fine. I'm unfamiliar

E. RODRIGUEZ: Because I think we're going to be here awhile. Another question I have for you: Are you aware which parts of the rule that the court took issue with? Well, I guess we'll skip through that because we're not sure about that exact one. I'll let some other members ask questions right now.

REPRESENTATIVE ALVARADO: Ms. Burkett, how did you come up with the idea for this bill? Did you have constituents that called you or people that said we've got to have this this session? How did you come up with the idea?

BURKETT: I had heard from a lot of constituents when we had some issues that came out with some news that there had been disposition of fetal tissues, as far as cells or possible dumping of those fetal tissues in dumpsters or in landfills. And they were quite appalled and thought that we should do something about that. And when we have some federal law that covers somewhat of that, it made sense, along with the issue that we had with an abortion doctor down in Houston that was suspected of doing partial-birth abortions. This was something that did come around from many people across my district and across the state.

ALVARADO: Okay. Are you opposed to fetal tissue research?

BURKETT: No, I'm not. I am opposed to fetal tissue becoming a commodity, though. And this bill, I think, gives some dignity to the disposal of fetal tissue and at the same time still allows for research to be performed in a reasonable manner.

ALVARADO: So you know of situations where this has been seen as a commodity?

BURKETT: I'm sorry?

ALVARADO: You mentioned commodity.

BURKETT: There's a concern that as tissue can be sold or given at a profit with added expenses, that it will become a commodity. That is correct.

ALVARADO: Do you know of any situations where this is happening?

BURKETT: Well, are you aware of any instances where it hasn't?

ALVARADO: No.

BURKETT: Okay. There is concern that that has been happening.

ALVARADO: Just to refamiliarize yourself with the rules, I ask the questions. That's what the back mic is for. So just a gentle reminder. It's just a gentle reminder. This bill denies women who have an elective abortion, correct?

BURKETT: The bill does not––you need to rephrase that. It does not deny anybody to have an elective abortion.

ALVARADO: Okay. What's the definition of an elective abortion?

BURKETT: It is one that falls outside of the confines to "save the life of a mother whose life is endangered by physical disorder, physical illness, physical injury, including a life-endangering physical condition caused by or arising out of the pregnancy."

ALVARADO: Okay. Do you think that this might lead to Texas becoming a state where we just outright ban fetal tissue research?

BURKETT: No, I don't.

ALVARADO: So that was not part of your goal when you came up with the bill?

BURKETT: That is not a part of this bill. This bill does allow for fetal research within a structured process.

ALVARADO: I think someone asked this question, but did you seek guidance from any researchers or scientists?

BURKETT: We did have some conversations with UT––research medical––and got the information where we made sure that the current lines of fetal cell research and stem cells will still be available and put that safeguard within this bill.

ALVARADO: So how did they weigh in on the issue? What were their comments on the bill?

BURKETT: As long as their current stem cells were protected, they were fine with it.

ALVARADO: Did they talk about the benefits of fetal tissue research?

BURKETT: That was not part of the discussion. I think there's general benefits to be had which is why we didn't outlaw it totally.

REPRESENTATIVE CANALES: I've got some questions regarding who can donate and what we can donate. If this bill's about respect for life maybe we should give the respect to the dialogue. So let's talk about––

[Representative Canales raised a point of order against further consideration of CSSB 8 under Rule 8, Section 3 of the House Rules on the grounds that it violates the one-subject rule. The chair overruled the point of order.]

[Representative Canales raised a point of order against further consideration of CSSB 8 under Rule 4, Section 32(c) of the House Rules on the grounds that the bill analysis is incorrect. The chair overruled the point of order.]

REPRESENTATIVE TURNER: This first amendment, when you just look at it, it looks pretty harmless. And you know, it's something that the legislature does sometimes on bills, to add a severability clause to say that in the event a portion of the bill is struck down by the courts, is declared to be unconstitutional, that the rest of the bill still stands. And I think it's important to talk about this because, you know, the last time we did one of these bills––four years ago, HB 2––we know that last summer the United States Supreme Court struck down major portions of that law because they found that it was in fact unconstitutional. In a 5-3 decision, it essentially ruled that the state way overreached and that the supposed medical benefits that were talked about in that bill, in quoting the ruling, "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 pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution."

And I think that's important to think about before we vote on this amendment. Because I have to ask the author of the bill and the people who plan on voting for this bill, do you know that this bill and some amendments that may get added to it are, in fact, unconstitutional? It seems that with this amendment there's a tacit admission that what we're doing here is likely to be struck down by the courts once again, just as it was last year by the United States Supreme Court. Justice has been done on other issues that we've talked a lot about in this legislative session, whether it's redistricting or Voter ID or any number of other things. This legislature has a history, a very recent history, of passing bills that are stuck down by the courts because they're unconstitutional. And so my question to everybody in this chamber is, instead of trying to put in a severability clause to guard against the likelihood that this bill or parts of it will be stuck down eventually by the courts, why don't we just stop passing unconstitutional laws for a change? Why don't we just stop? And I think that's what everyone should think about before they vote on this amendment.

[Amendment No. 1 was adopted by Record No. 1376.]

[Amendment No. 2 by Klick was laid before the house.]

REPRESENTATIVE KLICK: This amendment adds a prohibition on dismemberment abortions to CSSB 8. A dismemberment abortion is defined as "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 these 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"––

[Representative Turner raised a point of order against further consideration of CSSB 8 under Rule 4, Section 32(c)(3) of the House Rules on the grounds that the bill analysis is incorrect. The chair overruled the point of order.]

KLICK: "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." This amendment would require the unborn child's fetal death to occur before the child could be ripped apart and removed from the womb piece by piece. The compelling state interests for the adoption of this amendment are protecting the potentiality of human life before birth, in expressing profound respect for the life of the unborn, and preserving and promoting fetal life. To be clear, this amendment does not prohibit the removal of an unborn child from the womb in pieces. It merely requires that before this action is taken, fetal demise or fetal death must occur out of respect for life in the womb. It's hard to exaggerate the inconsistencies of killing human fetuses by dismemberment with every other norm of modern humane conduct. No one can euthanize a pet this way. States may not execute prisoners this way. If livestock were slaughtered this way, federal law would treat it as inhumane. Why then can we do this torturous and inhumane action to a human child in the womb?

You know, at the beginning of this session, I met a woman whose daughter had had such a procedure done. She had gone through the bypass procedure because she was a minor, and there was a retained bone piece that perforated her uterus. The family did not know that she had undergone such a procedure, and they found her dead in bed the next morning. We should treat all human life with dignity. Finally, this amendment specifically states that a woman who has dismembered abortions performed on her, and an employee acting under the direction of a physician performing the dismemberment abortion, or a person who fills a prescription or provides equipment used in a dismemberment abortion, does not violate this law. A violation is a state jail felony.

REPRESENTATIVE KRAUSE: Representative Klick, I appreciate your work on this amendment. Would Texas be the first state that would have outlawed this if we were to add this on to our bill today?

KLICK: No, we would not. There are, I believe, seven or eight other states. In some states right now, their legislatures are in session, and it's anticipated that they will pass these protections as well.

KRAUSE: So right now, there are seven or eight, but by the end of this next legislative session cycle, there could be many more.

KLICK: Correct.

KRAUSE: Okay. And you know, the National Abortion Federation puts out rules, guidelines, and talks about ways to do things and not do things. Are you aware of the reason they give for encouraging and exhorting abortion doctors to do the dismemberment? Is it because it's safer or do you know why they ask to do that?

KLICK: My understanding is it's because it's easier and cheaper.

KRAUSE: That's right. That's what I've seen in the guidelines as well. It's a matter of convenience, and it's a matter of economy, not a matter of health or safety of the mother. And there might be some consideration about some legal challenges or things like that. When the Supreme Court upheld the partial-birth abortion ban, it seemed like there was a lot of case law to substantiate that states have the right and the ability and the power to choose to not do certain types of procedures. Is that right?

KLICK: That's correct.

KRAUSE: And one of those procedures there, in the partial-birth abortion, they upheld it because it was part of such a gruesome and barbaric practice that they said as long as you're not taking away every chance at an abortion, you should not be able to do this. Is that correct?

KLICK: That's correct. And this is probably one of the most gruesome of the procedures.

KRAUSE: And you would say, I guess, that this would be analogous that the State of Texas isn't saying you cannot get an abortion, but we're not going to allow you to do the dismemberment abortion for that procedure.

KLICK: We're not going to allow them to take the life of the unborn child with this procedure by ripping them apart.

KRAUSE: Okay. I just want to make sure that we're understanding what's taking place in this procedure. When this dismemberment happens does that unborn child have a beating heart?

KLICK: Yes, it does. Many times you start detecting heart activity at about 13 weeks, and that's typically when these procedures begin to be done.

KRAUSE: And does that child oftentimes have functioning brain activity as well?

KLICK: They do. And beginning at a very early age, they have their own set of fingerprints and organs that are functioning.

KRAUSE: So basically, what we're trying to outlaw today is not being able to take an arm or a leg that has fingers and toes on it to be ripped from an unborn child's body while their heart is still beating. Is that correct?

KLICK: That's correct.

KRAUSE: And I cannot imagine anybody that would oppose that. As I think you had it in your layout, we don't even treat pets like that. We don't treat our enemies like that. We don't allow our penal system to do anything close to that, which we would see as cruel and unusual punishment. Is that correct?

KLICK: That's correct. In fact, in one case, Glass v. Louisiana, it describes the inhumane and barbarous practice of drawing and quartering as obviously unconstitutional. And Representative Krause, that's essentially what we're doing to these unborn children.

KRAUSE: That's exactly right. And in fact, I think even Ruth Bader Ginsburg, in one of the opinions and in the dissent, agreed that this partial-birth abortion and even dismemberment was a gruesome, barbaric practice. Is that correct?

KLICK: That is correct.

KRAUSE: So I don't see any reason why we would not end that practice today to choose that one narrow method of––

[Representative Canales raised a point of order against further consideration of CSSB 8. The point of order was withdrawn.]

[Amendment No. 3 by Turner was laid before the house.]

TURNER: This is a very simple amendment to the amendment to just say that this section does not apply to an abortion that terminates a pregnancy that is the result of sexual assault or incest.

FARRAR: Interestingly, I was just having an amendment similar to yours drafted. So yours would create an exception for women who were victims of rape or incest?

TURNER: That is correct.

FARRAR: And I didn't get a chance, because now we're under these new timelines, and so I didn't get a chance to ask some questions of Representative Klick, but are you aware that––and I know that the description was pretty gruesome, but medical procedures sometimes, quite frankly, are. Are you aware that the D&E procedure accounts for 95 percent of abortion procedures that are after the first trimester? They're used in 90 percent of pregnancy complications. Are you aware of that?

TURNER: I am, Representative Farrar, and I think that strikes to the heart of that amendment. This is an amendment basically to make abortion inaccessible, a constitutionally protected right. As I spoke about a few minutes ago, the Supreme Court ruling last year basically shut down this constitutionally protected medical procedure for women in the second trimester.

FARRAR: And are you aware that according to the American Congress of Obstetricians and Gynecologists––you know, that's the medical association for the OB-GYNs. They issued a statement that said that the D&E method is "evidence-based and medically preferred because it results in the fewest complications for women compared to alternative procedures." They go on to say that under the bill––her original bill, not this amendment but same subject––that "doctors will be forced, by ill-advised, unscientifically motivated policy, to provide lesser care to patients. Are you aware of that statement that they made?

TURNER: I was aware of ACOG's opposition to these types of measures, including the language in this amendment, and I think it speaks to the fact that the legislature should not try to practice medicine. Politicians shouldn't be trying to practice medicine, and that's what's going on on this house floor right now. And we ought to listen to professionals such as those at ACOG and listen to their wisdom and experience and knowledge of the safest medical procedures available, procedures that are protected by the Constitution and by the United States Supreme Court. And my amendment to this amendment would at least provide an exception in the event that a pregnancy is the result of a sexual assault, of being raped, of being a victim of incest. And why we wouldn't be able to provide that measure of relief for victims, I'm not certain.

FARRAR: Well, the reason I was drafting this amendment was because of my concern, perhaps you share this concern, that rape victims or incest victims take a while to come forward. In fact, if they ever come forward; we know that a substantial amount of them never come forward. And so by the time they do come forward, they might be beyond where they could use a different method and might be in a situation where they would actually have to face this method. And Representative Klick didn't outline in her amendment, but I would like to know what other procedures would be available to women if not the one prescribed by the medical association that says this is the safest, that the OB-GYNs are comprised of?

TURNER: Well, and I think that's an excellent question Representative Farrar. Perhaps when Representative Klick comes back to speak on my amendment––I'm not sure if she's going to accept it or not––perhaps that question could be posed to her. What procedures, if we're going to outlaw this most common procedure, which procedures would be available still for women? And the point about sexual assault survivors coming forward is an excellent one. I've heard a lot of testimony in the house Higher Education Committee this session, because sexual assault on college campuses has been a very timely issue, unfortunately, right now in our state and across the country. And it is––we've heard compelling testimony from women who it's very difficult for them to come forward to speak about what happened to them, and that's completely understandable. And the fact that we would say if you wait too long to come forward or even find out if you're pregnant as a result of the assault, we're going to close off the possibility of a safe medical procedure––one that's protected by the Constitution––we're going to close that off to you, and we have no sympathy whatsoever for what you've undergone.

FARRAR: Correct, and so we would further subject her to being victimized again by something that is less safe. We're not even sure what the alternative procedures are.

TURNER: I certainly don't know what the alternative is.

FARRAR: But we do know that ACOG, American Congress of Obstetricians and Gynecologists, says that this is the safest method for a woman.

TURNER: They do. They're very, very clear about that. And as far as I know, ACOG, as you say, is the professional organization of obstetricians and gynecologists. They are the foremost experts on these matters anywhere. And we ought to listen to their advice and not ignore their advice.

FARRAR: And because we include women in the definition of being pro-life, correct?

TURNER: Absolutely.

REPRESENTATIVE RAYMOND: This is a very sensitive issue. We all know that. I will tell you, as I read your amendment, as I read Representative Klick's amendment and your amendment to it, my concern with your amendment––and you're my good friend, and you know we're the same on a lot of these issues––but you're saying that if a woman is raped, then it's going to be okay to go in there and separate the baby, tear it up, and all that while the heart is still beating. You understand that, right? That's what your amendment does.

TURNER: Well, Representative Raymond, what my amendment does is restore, if the Klick amendment is adopted and this bill becomes law, my amendment would preserve a constitutionally protected right for victims of rape or incest. I think the Klick amendment on itself, based on Supreme Court rulings, is likely unconstitutional, but it will take a while to work its way through court. Lets at least preserve this safe, protected medical procedure.

RAYMOND: So it is your view that her amendment does not allow a woman to have an abortion?

TURNER: Well, as you just heard Representative Farrar––

RAYMOND: I couldn't hear her well, so––

TURNER: Okay, well Representative Farrar made the point in her question that ACOG, the association of gynecologists and obstetricians, has said that this procedure is the, in general, the safest procedure for the woman in the second trimester of pregnancy. And this is the procedure that is used in upward of 90 percent of those procedures in the second trimester. So the question is––that we have, and I don't know the answer to is––if this procedure is banned by the Texas Legislature, what, if any, options medically are available to the woman? And I don't have the answer to that, Representative Raymond. Again, members, this is an amendment that simply says that this, that Representative Klick's amendment would not apply in the event that the pregnancy is the result of sexual assault or incest, and I would move adoption.

KLICK: Members, I am going to recommend that you vote against this amendment. There are other procedures that can be done in the event.

TURNER: Given that you're not accepting this amendment and you're asking for a no vote from the chamber on it, I think you heard Representative Farrar's question to me a few minutes ago that I cannot answer. So I'll ask––I'll pose it to you. If this procedure is banned by the legislature, what procedures are available in the second trimester?

KLICK: There are procedures that involve using other products like potassium chloride, digoxin, that the life of the child is taken before it's ripped apart.

TURNER: And what about the information that Representative Farrar shared from ACOG––I think you would agree, a respected association of gynecologists and obstetricians––that this procedure that you would ban is, in fact, the safest procedure in most cases?

KLICK: The later you go in pregnancy and to terminate a pregnancy, the greater the risk is. And for each additional week that it goes, it increases the risk by about 38 percent. And it's never safe for the child.

TURNER: Yeah, but I don't think you answered the question, though, about the fact that this, if there is to be a termination of a pregnancy in the second trimester, this procedure that you're banning with this amendment is, in fact, the safest in general. So––

KLICK: There are other procedures that are very similar that involve taking the life of the child using a product like digoxin or potassium chloride so that that child is not ripped apart while it is alive.

TURNER: And you would agree, then, that that procedure, those other procedures you described, are, in fact, more dangerous to the mother?

KLICK: Those procedures are very similar. My amendment just prohibits taking the life of a child by ripping them apart. If that child has already met their demise or fetal death, then the prohibition does not apply.

TURNER: And with respect to my amendment to the amendment, even though this is, as ACOG says, the most commonly used procedure and the safest procedure, even if a woman is a victim of rape or incest and––

KLICK: There is another procedure.

TURNER: You're not going to allow an exception for them?

KLICK: I am not. There is another procedure which can be used.

REPRESENTATIVE RINALDI: Representative Klick, are these procedures performed on babies who are, for example, 16 weeks old?

KLICK: They can be. They can be done as early as about 13 to 14 weeks old and up to about 24 weeks.

RINALDI: So 16 weeks––I actually, I have a son who's 16 weeks now and sitting over there with my wife and my constituents Corbin and Christian, who I hope he grows up to be like someday. So at 16 weeks, we got up this morning, we put the Doppler on my wife's belly, and we tried to find him. I guess we'll call him baby Jeff, since Representative Leach has been pulling for that name. We found little Jeff this morning and his heartbeat, but Jeff likes to move when the Doppler is moving, and he likes to evade it. And we noticed when we get the sonogram and he's kicking, and he doesn't like to be photographed either, so he puts his two hands up to the Doppler and covers his face. And he's 16 weeks old. Now, Dr. Oliverson has told me also that a very similar thing happens when these procedures are performed. When a baby as old as mine is now goes to the doctor and they rip his leg off while his heart is still beating, which is the procedure that you're currently trying to prohibit, the baby actually moves. It tries to go away from where it's being ripped limb from limb and go in the part of the uterus farthest away. Is that not correct, Representative Klick?

KLICK: That's correct.

RINALDI: And this horrific procedure where a child the age of my child right now is ripped limb from limb while it's still alive and feels pain and is moving around the uterus, that's what you're trying to prohibit, correct?

KLICK: That is absolutely correct.

RINALDI: And that's what Representative Turner's amendment wants to allow in certain instances. Is that not correct?

KLICK: That's correct.

[Amendment No. 3 failed of adoption by Record No. 1377.]

[Amendment No. 4 by Farrar was laid before the house.]

REPRESENTATIVE FARRAR: What this amendment says is that the procedure is allowable when a physician has determined in the physician's professional judgment that that's the safest available procedure for the woman. I move adoption.

[Amendment No. 4 failed of adoption by Record No. 1378.]

[Amendment No. 5 by Farrar was laid before the house.]

FARRAR: What this amendment does is it allows the procedure if the woman's life is in jeopardy. And for those of us that say we're pro-life, we have to include the woman's life as well. I know that a lot of this is very sentimental to a lot of people, but I think we have to look at this in terms of these aren't pregnancies that are––these are far along. Something terrible has happened, and so this is why I say that, to at least preserve the life of the woman with this amendment, to allow the exemption if her life's in jeopardy.

REPRESENTATIVE ANCHIA: Thank for you bringing this amendment. In the underlying Klick amendment, the language simply says "a medical emergency," but it is undefined and very vague. So what you're trying to do is provide some clarity under the bill––at a bare minimum that if the woman's life is in danger, that this medical procedure is allowed. Is that not right?

FARRAR: Correct.

ANCHIA: So if the woman is going to die, the mother is going to die, that this procedure can be allowed.

FARRAR: Correct.

ANCHIA: And you're providing some clarity in the law about what those medical emergencies might look like.

FARRAR Correct.

[Amendment No. 5 failed of adoption by Record No. 1379.]

KLICK: Members, we've talked extensively about dismemberment abortion, and now, I urge you to vote with me and end this barbaric, inhumane practice of ripping living pre-born human beings apart in the womb. Our state has a compelling interest to protect the dignity and respect for the life of the unborn child.

FARRAR: You are aware that the Texas Alliance For Life testified against this bill in the senate Health and Human Services Committee, correct? And their statements were that it was unconstitutional.

KLICK: I'm not advised.

FARRAR: Did you know that there's currently litigation on this type of law in four states: Kansas, Oklahoma, Alabama, and Louisiana? And that the law is being blocked from taking effect in those four states currently?

KLICK: There are also other states that it is currently in effect and has passed.

FARRAR: I offered some amendments. One of them provided that the doctor's medical judgment would supersede, would prevail. And so do you not think that when a women's health is at risk that a doctor should be allowed to provide care using the method that in their best medical judgment is the best method?

KLICK: There is already an exception in the legislation for such a circumstance.

FARRAR: It's a vague exception, and I tried to clarify that, which you voted against situations of rape or incest. You voted against having her life being in danger. And you voted against in the best medical judgment of a doctor.

KLICK: Because there are other procedures that can be utilized.

FARRAR: I disagree, and I tried to fix your amendment.

REPRESENTATIVE CAIN: Ms. Klick, I'm looking through this definition of dismemberment abortion. I noticed that it's actually missing a few things. In order for this procedure to be safe, after ripping this baby apart they actually have to reassemble the baby in a dish next to it so they make sure that they got all the baby parts out so it doesn't cause an infection. Is that your understanding of this?

KLICK: That's correct.

CAIN: In fact, they can't use digoxin or any other chemicals so the baby doesn't feel pain, because there wouldn't be any value to that tissue. Is that your understanding?

KLICK: I'm not advised.

CAIN: Well, actually, that's what they do. They can't sell it anymore because it would be ruined, and so the baby feels it all. I thank you for doing what you're doing. It's going to pass.

REPRESENTATIVE URESTI: Ms. Klick, at what period is it when this procedure would be stopped? That there's no way this could be done––how many weeks?

KLICK: These procedures typically occur anywhere from 13 weeks to 24 weeks.

URESTI: Why would this procedure be done over the other procedures that you're talking about?

KLICK: Probably because it's easier for them to do.

URESTI: Is it a––because I'm struggling with this quite a bit. I voted neutral on a couple of the amendments; I voted in favor of a couple of the amendments. I'm really, really struggling with this issue. If the procedure that Ms. Burkett is trying to abolish right now, if that procedure allows for parts to be used to save another life, would that something that you would be in favor of? I'm trying to figure it out.

KLICK: Yeah, I'm here speaking about my amendment, you know, not the overall bill.

URESTI: On your amendment, would it make a difference if it was going to save a life or not?

KLICK: Do you have to take life in order to save life?

URESTI: Well, I'm talking about in the instance of rape or incest or in that––

KLICK: In the rape or incest, they already have additional procedures they can do. They can do a dismemberment abortion, but the baby has to not be living when they rip him apart or her apart. There are products––digoxin, potassium chloride––that can be injected so that the baby is not feeling the pain of being ripped apart.

ANCHIA: Representative Klick, in your underlying amendment, you create an exception for things that are medically necessary.

KLICK: Correct.

ANCHIA: Can you provide some examples? Because we've already said that the health of the mother is not––you voted against an amendment related to the health of the mother. You voted against an amendment related to rape or incest. In your opinion what are the medical––what is medically necessary?

KLICK: We already have language in the amendment that does the things that you're saying.

ANCHIA: Since you drafted the amendment, give some color to the term "medical emergency." Give one example.

KLICK: The amendment speaks for itself, Representative Anchia.

ANCHIA: No, it doesn't, because it includes a vague term, Representative Klick. And since you're the amendment author, I'd like to know from you, when you drafted this amendment, what was in your mind? Because if you have already said it is not a medical emergency to save the life of the mother, I'm trying to get the sense of what in your mind is a medical emergency.

KLICK: I would invite you to read the language again.

ANCHIA: I did.

KLICK: But it is included in there.

ANCHIA: It is not. Unfortunately, it is silent. So could you provide us, as the author of the amendment, what a medical emergency would be? Or read from your amendment.

KLICK: The language is already included in the amendment.

ANCHIA: Would you kindly read that language and direct me to it then? Could we toll the lady's time while she's looking? Could we hit the pause button kindly?

Parliamentary inquiry: As the gentlelady is looking for the provisions in her amendment, can we kindly toll this time so it doesn't count against those who are going to ask questions?

CHAIR: She's looking in good faith, and there's plenty of time to get your answer.

KLICK: If you look at the section of code, which is Section 171.001, under (3), it says: "'Medical emergency' means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or serious risk of substantial impairment of a major bodily function unless an abortion is performed."

ANCHIA: Correct. So why would you vote against the exception related to the life of the mother?

KLICK: Because it's already in the bill.

ANCHIA: But with respect to your provision, your provision deals with a certain procedure, right? Not with respect to creation or disposition of a fetus, you deal with a medical procedure. So why would you not have that mirrored in your amendment?

KLICK: Because it's already there. It's already part of statute, and it's already part of the underlying bill.

ANCHIA: Under the underlying bill, again, is different subject matter not related to the procedure which you're seeking to ban. And so that's why I asked the question.

KLICK: That's not true, Representative Anchia.

ANCHIA: So is your answer then, are you representing to the body that the code section that you cited gives color to the––

KLICK: I move adoption.

ANCHIA: We had additional questions, Mr. Speaker. Mr. Speaker, I had a final additional question, and Representative Collier had a final question while we had a very long silence. I asked that the time period be tolled. Could we extend time, please?

CHAIR: To be fair, Representative Anchia, we did give an additional 30 seconds to compensate the time. And under Rule 5, Section 28, we're now in the period of session where we're prohibited from extending time.

ANCHIA: So would it be proper for someone who said that they were going to take questions to simply not answer questions and stand in silence for an entire 10 minutes? Would that be a proper outcome?

CHAIR: If that were her intention, she could have yielded the floor. She was actually looking.

REPRESENTATIVE HOWARD: I appreciate the opportunity to have gentlemen and gentlewomen agreements here to where we're respectfully trying to dialogue with each other on this extremely emotional and very personal subject for all of us. I'm going to read something first, and then make a couple of comments. Members, this is a ban on a medically proven, extremely safe abortion procedure. This is political interference in medicine at its worst. Legislators should not be in the business of telling doctors how to practice medicine or forcing them to use alternatives to some of the safest methods for treating their patients. The amendment author and supporters are using politically motivated and inflammatory language that is medically inaccurate. We should not be making policy based on political agendas. Politicians have no place in the medical exam room. With the highest maternal mortality rate in the country, Texas risks raising these numbers with the banning of the safest abortion procedure for most patients. Throughout her pregnancy, a woman must be able to make health care decisions that are best for her circumstances, including whether to end a pregnancy, without interference from politicians. Politicians should not interfere with a woman's decision to end a pregnancy at different points in the pregnancy, nor should we be telling doctors, who go through years of medical training, how to do their jobs.

You know, I am old enough to have been around as a young woman before Roe v. Wade. Many of you in here were not, but I can tell you that people, women prior to Roe v. Wade and for all history that we're aware of, have had abortions. Unfortunately, women are sometimes in a position where they become pregnant, and the pregnancy is not something that they choose to continue with. It becomes even a very desperate situation to where they will go to any means possible to not be in that position where they actually are giving their body over to something that, if you haven't experienced it, you don't know what that must be like. They had abortions prior to the legalization. Your changing the laws to try to make it illegal again or make it more difficult will not stop abortions from happening. All it will do is make it less safe. The American College of Obstetricians and Gynecologists said that before Roe v. Wade, it was estimated that 1.2 million American women resorted to illegal abortion each year and that unsafe abortions caused as many as 5,000 annual deaths among these women. After Roe v. Wade, mortality due to septic illegal abortion decreased precipitously. There is a reason to have abortion be legal and safe. There is a reason for it. It prevents unnecessary death.

I know that this is something that we don't want to have to have abortion. The descriptions y'all have given are breaking my heart. This is a difficult day; I'm sorry. I'm a mother. I loved my pregnancies. I love my children. I'm now a grandmother of four, and I am so fortunate, I'm so fortunate that these were pregnancies that could continue for our family. It is not that way for everyone. We can sit here self righteously and decide that we always know best for every person, but we do not. We do not. When a woman becomes pregnant, she loses a part of herself to someone else. Most of us want that because it's beautiful. Because we want women who are in desperate situations to be able to make the choice for their own bodies and their own families and to do it in a safe way and to allow doctors and health care providers to use their medical judgment to determine the best way to do this, that does not mean that I am not pro-life. I love life. I love my children. I love my grandchildren. And members, we can work together on this to prevent more abortions from happening than need to by making sure we work together on contraceptives being readily available to those that need them. We can do that. There is no reason to come back here session after session and make it more and more difficult and drive women back into the shadows of illegal abortions, because that's exactly what this will do. They will not stop having them. They've always had abortions. We have always had abortions. Women have always had abortions, and that will always be something that will be sought.

We have a responsibility to have policy that supports science, that's evidence based, and that makes sure that public health policy supports the health and well-being of these women. I'm sorry that this happens sometimes; I wish it didn't. Our changing this law will not make that go away. It will just make it unsafe. We've come too far now. We have made decisions that have allowed safe, legal procedures to occur with the medical community using their best judgment, their medical judgment, to determine how best to intervene with the unwanted pregnancy with their patient. We have no business interfering with that. If you want to stop abortions, then help me stop unwanted pregnancies. Thank you, members.

[Amendment No. 2 was adopted by Record No. 1380.]

[Amendment No. 6 by Leach was laid before the house and was withdrawn.]

[Amendment No. 7 by S. Davis was laid before the house.]

REPRESENTATIVE S. DAVIS: What this amendment does is it preserves the language of CSSB 8 that prohibits partial-birth abortions. As we have already heard the bill author say, she is tracking the language that is the federal law. So I would take her on her word and keep that part of the bill, and then the amendment strikes the rest of the bill. I believe it was two sessions ago, I stood here in a special session when we were arguing banning abortions after 20 weeks, and then there were several other parts of that bill. And I argued. I had an amendment that said let us ban abortion after 20 weeks with some exceptions, but let's get rid of the unconstitutional parts of that bill. The body chose, obviously, not to vote for that amendment, and then the Supreme Court ruled, in fact, that all the things that I said were unconstitutional were, in fact, unconstitutional. So what I'm hoping with this amendment is to save the cost of litigation, because I think it's fairly obvious that most of this bill is unconstitutional. And in fact, I believe the federal courts in Texas have already ruled that the requirement that you bury or you cremate fetal remains has been struck down. So you have the opportunity to take, I think, a bipartisan pro-life vote that does ban partial-birth abortions but will strike the rest of the bill.

BURKETT: I appreciate what Representative Davis is saying. However, it also will take out everything that has to do with the disposition of fetal remains. And I think that we need to make sure that we do that in a very humane manner, and I don't want to lose that. So I'm going to leave it to the will of the house, but I'll be voting no.

[Amendment No. 7 failed of adoption by Record No. 1381.]

[Amendment No. 8 by Cain was laid before the house.]

REPRESENTATIVE CAIN: What this amendment does is it excludes or adds to the definition of "human tissue" that an umbilical cord or placenta derived from a terminated pregnancy cannot be donated or sold. The purpose is that we not allow any profit to come from abortions, whether it's baby parts, whether it's the placenta or the umbilical cord. That is all.

ANCHIA: How are we measuring the last 10 days of the session? Are we counting the 29th, the day that presumably we would sine die as a day of the session in order to measure the last 10 days?

CHAIR (Kuempel in the chair): Yes, sir, but we are not counting Sundays.

ANCHIA: Correct, but we are counting the 29th as a calendar day. Is that correct?

CHAIR: Absolutely.

FARRAR: Mr. Cain, what is it you're trying to do? I'm reading the , and I'm trying to figure out what is it exactly you're trying to do.

CAIN: It is so that the word "human fetal tissue," which this bill prohibits the donation or sale of, to include umbilical cord or placentas from abortions. That way, on a supply and demand scheme, you know, researchers may want to do some research on these placentas or umbilical cords, but they're not going to do it on aborted babies.

FARRAR: Is there any scientific or lifesaving value to this tissue?

CAIN: The tissue and everything involved in the abortion is sin, and it's wrong. I actually believe it's evil, and so there is no value in things that are evil.

FARRAR: Will this prevent, I just want to make sure, will this prevent a family from paying to save blood from the umbilical cord?

CAIN: If it's from an abortion, that's correct.

FARRAR: I'm sorry, I'm still trying to piece this together.

ALVARADO: The second part of your amendment talks about a terminated pregnancy. Could you elaborate on that a little bit?

CAIN: It means––

ALVARADO: I'm sorry?

CAIN: It's pretty simple. I think you know what it means. It means an abortion, ma'am.

ALVARADO: Okay, and why is this necessary? Did you consult with some medical experts or anyone regarding this?

CAIN: That's a good question. You know, what this does is it adds to the term "human fetal tissue," umbilical cord or placenta derived from a terminated pregnancy.

ALVARADO: Okay, I'm not understanding the relevance of it, the importance of it as it relates to this particular bill.

[Amendment No. 8 was withdrawn.]

[Amendment No. 9 by Minjarez was laid before the house.]

REPRESENTATIVE MINJAREZ: This amendment addresses the portion of the bill which bans fetal tissue donation following an abortion to medical research. What this amendment does is allow fetal tissue from pregnancy terminations in which there was a pregnancy complication to be donated to medical research. This amendment would include tissue from ectopic pregnancies, molar pregnancies, and preeclampsia.

REPRESENTATIVE NEAVE: Representative Minjarez, can you tell us what is a molar pregnancy?

MINJAREZ: Representative, that is tissue that would normally become a fetus, however, it instead turns into an abnormal growth in the uterus. About one out of 1,500 women with early pregnancy symptoms have a molar pregnancy.

NEAVE: What about an ectopic pregnancy? What is that?

MINJAREZ: So that's when a fertilized egg attaches itself in a place other than inside the uterus. Almost all ectopic pregnancies occur in the fallopian tube and are thus called tubal pregnancies. Fallopian tubes are not designed to hold a growing embryo. The fertilized egg in a tubal pregnancy cannot develop properly and must be treated. An ectopic pregnancy happens in one out of 50 pregnancies.

NEAVE: You also mentioned preeclampsia. What is that?

MINJAREZ: Preeclampsia is a syndrome that occurs during pregnancy and is marked by a sudden increase in the blood pressure of a pregnant woman after the 20th week of pregnancy. It can affect the mother's kidneys, her liver, and her brain. The condition can be fatal for the mother and the baby and can lead to long-term health problems. Currently, the only cure for gestational preeclampsia is to deliver the fetus.

NEAVE: How can researchers better understand this issue and possibly help save the lives of mothers and of their babies?

MINJAREZ: It's very important, Representative. For example, the National Institute of Child Health and Human Development is supportive of research which has used fetal membranes from patients with preeclampsia to better understand early and late onset preeclampsia.

NEAVE: And could that research also help find treatments for a wide range of diseases and disorders?

MINJAREZ: Most definitely. It has in the past, and it's very imperative that it continue.

BURKETT: Members, I just wanted to make you aware that in Section 173.002, we have already got covered fetal tissue obtained for diagnostic or pathological testing, so they're already able to do that in this bill. So it's an unnecessary amendment. So I'm going to vote no on that.

MINJAREZ: Members, I would completely disagree. I think this is very much needed in this bill so as to avoid any misinterpretations. Again, this is simply narrowing this to pregnancy terminations as a result of pregnancy complications beyond the control of the mother.

[Amendment No. 9 failed of adoption by Record No. 1382.]

[Amendment No. 10 by Gervin-Hawkins was laid before the house.]

REPRESENTATIVE GERVIN-HAWKINS: Members, this amendment excludes cases where the pregnancy was caused by sexual assault or incest. Remember, a woman dealing with immense psychological and emotional trauma resulting from these acts should by no means be subjected to further psychological anguish. So members, I ask you to support this under these extenuating circumstances. These women are survivors often battling for their mental and physical well-being. I urge you to join me in showing these women empathy and allowing them to heal without state sanctions and impositions passed on them.

REPRESENTATIVE THIERRY: Representative Gervin-Hawkins, I just want to make sure I understand what your amendment is trying to do. First of all, does this offer any exemption for burial or cremation under the rules of the underlying bill?

GERVIN-HAWKINS: It does not.

THIERRY: And so from what I'm hearing you lay out, are you just, in a very, very narrow scope, are you trying to limit it so that women in Texas who have experienced rape and become pregnant, for example, as you stated, from incest and end up having an abortion––are you just limiting it to where in that instance, they would not have to go through a full cremation or burial?

GERVIN-HAWKINS: That is correct, Representative Thierry. As you well know, the experience in itself is traumatizing. And so now, to have to go to that next level and go through a full burial would even be more traumatizing.

THIERRY: Are you aware of the data that almost 10 percent of Texas women who become pregnant are from rape?

GERVIN-HAWKINS: I'm not totally advised, but I can imagine.

THIERRY: So I would like to just ask you a couple more questions about this, because I do understand what you're doing is trying to do something very narrow.

GERVIN-HAWKINS: Yes.

THIERRY: Is that correct?

GERVIN-HAWKINS: That is correct.

THIERRY: You're not trying to expand the scope of anything.

GERVIN-HAWKINS: Yes.

THIERRY: So in this instance, are you just saying that for women who have been raped, for example, from, for example, a family member, unfortunately––

GERVIN-HAWKINS: Correct.

THIERRY: Are you just trying to limit it in that situation where if they became pregnant, for example from an uncle, and you had, maybe, a 19-year old-who was raped––are you just trying to prevent that young lady from having to go through the additional emotional trauma of having to bury a fetus?

GERVIN-HAWKINS: That's correct.

THIERRY: Or cremate a fetus?

GERVIN-HAWKINS: That's correct.

REPRESENTATIVE TINDERHOLT: Representative Gervin-Hawkins, we've become pretty good friends back here, is that true?

GERVIN-HAWKINS: Yes, we have.

TINDERHOLT: And we've even talked that you and I are probably going to disagree quite a bit on this topic today.

GERVIN-HAWKINS: For sure.

TINDERHOLT: So are you aware that state law currently says, according to Texas Penal Code 1.07, that an "'individual' means a human being who is alive, including an unborn child at every stage of gestation including fertilization until birth."

GERVIN-HAWKINS: Representative Tinderholt, no, I'm not directly aware, but one of the things I want to be perfectly clear on, today has been a very emotional day because we're talking about an emotional subject.

TINDERHOLT: I know, and I'm going to get there. I promise you we're going to get there, because what you're talking about is a horrific crime that no woman should ever have to deal with. But I want to cover the Fifth and Fourteenth Amendments––no person shall be deprived of life without due process of law. That's a pretty important amendment, because the children that are being aborted are, according to state law, they are life, and they are having their lives taken. So I think what I'm trying to get at is, I agree with you that every woman should have control of her body, but according to state law and then according to the Constitution of the United States of America, that life inside the woman is a life of its own. And so my question to you is––I know we disagree on this topic. My question to you is, that child is not complicit with what that man did to that woman––which again, I want to reiterate is absolutely horrific. I could never imagine it. Do you take issue with two wrongs making a right? Meaning that that woman had to deal with a horrific crime done to her, but then we turn around and we take the life of that child––but there's other children in this bill that we're not taking their lives. Because this crime happened, these children's lives are aborted, and they die.

GERVIN-HAWKINS: Representative Tinderholt, I'm going to tell you that is totally nongermane. And I think until the time you carry a baby in your stomach, you can't begin to tell me about issues related to the trauma, the despair, and the feeling that a woman can have when she's been violated and now has to make a decision that will impact her for her entire life. So I think, as Representative Davis said, it has already been determined what we can and cannot do in the courts. All I'm attempting to do––I'm not trying to change this bill. All I'm trying to do is say can we not take someone who's experienced rape or incest through more trauma. That's all I'm attempting to do.

TINDERHOLT: But we're still taking the life of a child that was not complicit with that. That's still what's happening, essentially.

GERVIN-HAWKINS: I'm not even talking about taking the life of a child. I'm talking about how we handle the remains that come as a result of incest and rape. That's all I'm talking about. So let's not broaden it. I'll tell you, today, I've heard about arms being pulled off, bodies being dismembered, and all of those types of things. Let's not make something what it's really not. When we are talking about making a decision that impacts our lives and our future forever––forever––it is not an easy decision. And so when you were talking about dismemberment, even the thought of it, it was like a horror movie of what I've heard today. And no one wants that to happen. And I think the bill covers it. If tissue can be used for research, let's do it to improve what is happening, particularly when there's complications. But let's stop the horror. We're too big for that. We are too big. We are too important to start talking about and making horror stories out of a horrific situation.

TINDERHOLT: Well, I want to thank you for being respectful. I mean, we are totally on opposite ends of the spectrum on this. I still love ya like a sister, but I totally disagree with you. And thank you for being respectful on your answers.

BURKETT: I appreciate what she's bringing forth. I think that we don't want to put a woman that's been a victim of rape through anything more emotional, but I do want to point out to you that CSSB 8 does not place the burden on the mother. It puts the responsibility on the facility and the doctors that are performing the abortions to dispose of the remains in a decent and humane fashion. So for that reason––I think it's already covered in the bill––I'm going to go ahead and suggest no on this vote. It will be an up or down vote.

GERVIN-HAWKINS: It is not covered in the bill. It's too vague and too general. Let's do the right thing, members. Let's remember it's already a horrific situation. Let's try to make it a little better. None of us, I believe, want to dismember children or sell for profit. All I'm asking is in the case of incest and rape, do not make the mother endure that next step of a horrific situation where she has to bury a child that she had never wanted in the beginning.

[Amendment No. 10 failed of adoption by Record No. 1383.]

[Amendment No. 11 by Alvarado was laid before the house.]

ALVARADO: There are a number of provisions under this bill that force certain medical professionals and women's health administrators to comply with all sorts of erroneous requirements. Many of these mandates are sensitive in scope and politically charged. This amendment maintains religious liberty––I threw that in there for Mr. Stickland––religious liberty by allowing a person to opt out of complying with the provisions of this bill if it would violate a sincerely held religious belief.

FARRAR: Ms. Alvarado, I don't know if you heard from people, but I heard from some Jewish women who, in their experience, their faith doesn't recognize that life begins at conception. In fact, I've had a discussion with some other folks that the Jewish tradition even––I don't think they name children until the 30th day or something is what was explained to me. So in other words, what you're saying is that you would allow, when we've done so many conscientious objections based on religious faith throughout several bills in this session, what you're doing is putting this bill in line with the other bills that many of the people in this room already voted for. Correct?

ALVARADO: That's correct, and I believe I was part of one of the discussions that you and I were involved in in relation to some members in the Jewish community that raised the issue with us.

REPRESENTATIVE ISRAEL: Representative Alvarado, thank you so much for bringing up this topic, but I was wondering what religious scenarios could you imagine. I heard you alluding to them there at the end. I don't know that everybody heard. What religious scenarios could you imagine that someone would say my religious convictions would not allow me to do what this is calling for?

ALVARADO: It could be a number of situations. But the one Representative Farrar was talking about, we had a discussion with some folks in the Jewish community who said that there have been situations where a name may not be given to the child until possibly 30 days after birth. So this amendment would allow people to follow whatever their religion allows for when it comes to disposing of the unborn.

REPRESENTATIVE BLANCO: Does CSSB 8 as it stands protect Texas religious accommodations and freedoms of conscience?

ALVARADO: No, sir.

BLANCO: So what this amendment does is protect the sincerely held religious beliefs of the pregnant woman or the owners or the employees of the health care facilities, is that correct?

ALVARADO: That is correct.

BLANCO: In your opinion, is it the state's role to tell a woman how to dispose of her fetal tissue knowing that the state-mandated disposal method may not be in accordance with her own religious held beliefs?

ALVARADO: No.

BLANCO: And does CSSB 8 as it stands impose burden on Jewish patients?

ALVARADO: Absolutely.

BLANCO: Are you aware of any examples of rabbis that may have testified in the past regarding this?

ALVARADO: I believe Rabbi Neal Alan Katz.

BLANCO: Okay. Chairwoman, did the author inform the members of this body about the types of organizations involved with the burial and the disposition requirements?

ALVARADO: I'm sorry?

BLANCO: Did the author inform the members of this body about the types of organizations involved with the burial or the disposition requirements?

ALVARADO: No, the author did not inform the members about the religious affiliations of organizations that would be involved with the bill's proposed disposition requirements. In fact, I don't believe the author has provided a comprehensive list of organizations committed to fulfilling the purpose of this bill.

BLANCO: Okay. Regarding the federal court, was the federal court that blocked the DSHS rule concerned about this burden or religion?

ALVARADO: That's correct.

BURKETT: I just wanted to point out that this section of the bill that the representative is trying to amend addresses the disposal of the remains by the facility and does not address a person. This is addressing a person, and so I––

ANCHIA: How many different religions in the world are there?

BURKETT: I am unadvised.

ANCHIA: Do you imagine that different religions have perspectives on the preparation of remains and whether or not they should be cremated, buried, or otherwise disposed of?

BURKETT: I would suspect so, but I am unadvised on that as well, but I would not––

ANCHIA: Have you heard from any religions groups related to the disposal of remains and whether or not your bill would be objectionable?

BURKETT: I'm sorry. I did not hear the first part of your question. Could you repeat that please?

ANCHIA: I'm sorry. I'll speak more clearly. Have you heard from any religious groups related to the disposition of remains and whether or not your bill would be violative of their religious beliefs?

BURKETT: We have not. And again, as I mentioned earlier, this portion of the bill talks about facilities not people.

ANCHIA: Okay. Is it covered under your bill that a person that has sincerely held religious beliefs that your bill would violate, do they have any way of avoiding punishment under this bill if they don't comply?

BURKETT: Again, the punishment under this bill goes toward the facility and the provider, not the person involved.

ANCHIA: Correct. What about a facility? What if you have a affiliated facility? Would they be punished under this bill if they did not comply?

BURKETT: I am understanding from my colleague here who is an attorney, as you are as well, that they can always file a RFRA claim and go under that process if there's a religious problem.

ANCHIA: And I think that same colleague talked about how cumbersome RFRA was in prior legislation. Have you heard no objections from the religious community related to your bill, either during committee or afterwards?

BURKETT: There was no committee hearing or testimony against the bill on this portion, so no, I would say not. And to my knowledge my office has received no calls either.

ANCHIA: Do you understand that there are religions that are opposed to cremation?

BURKETT: I will have to take that as under advisement.

ANCHIA: Are there religions that are opposed to burial?

BURKETT: I'm sure there's possibilities, yes, sir. Again, this relates to the facility.

ANCHIA: Okay, but her amendment to your amendment also broadens it to allow objections not only from the facility but also from individuals. So if a person or a facility or an organization had a religious objection, your bill requires them to only pursue two different types of disposition of remains, is that right?

BURKETT: Representative Anchia, this amendment talks to the person, which is not included in this bill. So again, this is not applicable to the bill as written that we are voting on today.

ANCHIA: Well, all right. Well, let's go down the road of the organization or the facility. They would be prosecuted under your bill, correct, if they did not comply despite having a religious objection?

BURKETT: Or fined, correct.

ANCHIA: I'm sorry?

BURKETT: Or fined.

ANCHIA: Or fined, and that fine could be, under your bill, how much?

BURKETT: A thousand dollars per violation.

ANCHIA: Per violation––and the attorney general could also sue them, is that not right?

BURKETT: The attorney general can handle the processing, yes.

ANCHIA: So the attorney general, under your bill, could sue a facility for exercising their religious beliefs, is that correct?

BURKETT: As I mentioned earlier and as my colleague told me, they can also file a RFRA to handle that portion. As you know, our process is sometimes somewhat convoluted.

ANCHIA: Apart from RFRA––because your bill doesn't reference RFRA. I'm asking you about your bill.

BURKETT: I just told you about my bill.

ANCHIA: Right, and so I take it you agree with me, then, that the attorney general could sue an organization who objects to these methods of disposition of remains and be subject to either a fine or a suit from the attorney general, correct?

BURKETT: The attorney general can handle the process of enforcing this law, yes, sir.

ANCHIA: Okay, that's the way the bill read to me––that if an organization was exercising its religious belief, that they would be subject to a lawsuit from the attorney general. So thank you for clarifying that.

E. RODRIGUEZ: So I think what we're trying to get at––I think that what you might be thinking, tell me if I'm right or wrong, is that this is just a way to kind of create a loophole in this bill.

BURKETT: I'm sorry, could you repeat your question? I apologize.

E. RODRIGUEZ: Correct me if I'm wrong, but I think maybe you're thinking that this amendment would simply create a loophole in this bill. And I don't believe that's the intent of the author, and she's right here. But this is kind of a serious thing, what we're doing now, I think. And tell me if you agree with me, is that these facilities, now they're going to have to somehow determine––now they're going to have to take into consideration what if someone does come and say, "Hey, my religious beliefs will prevent me from wanting to cremate," let's say.

BURKETT: I'm sorry––I was just trying to clarify. Could you repeat? I apologize.

E. RODRIGUEZ: No, that's okay. Well, I'll just go to the second question I was asking. I think the unintended consequence, perhaps, of this bill is that you're going to have some of these facilities that are going to be put in a situation where they're going to have to be a lot more careful on how they handle the tissue. And if they do have a parent or parents that really do sincerely think that, say, cremation is something that's against their faith––which could happen––now there's all these considerations that there is probably no real way that a facility can actually accommodate everybody. So I think what this amendment is attempting to do is not, I think, what you may be thinking as creating a loophole but really understanding that this could become a serious problem. And so what I think this amendment is trying to do is to at least acknowledge that this could be a problem and to try and address this problem ahead of time, try to address it now. Would you not agree with me?

BURKETT: Again, as I was saying earlier, on this particular amendment presented, this is talking about a person involved. This bill affects the facilities that are performing the abortions.

E. RODRIGUEZ: I know, but the question I asked you, though, was doesn't this inadvertently, perhaps––or intentionally, I don't know––put a facility, not the individual, not the parent or parents, but that facility now, put them in a situation where they're going to have to do things quite differently than they're doing it right now. Not only that, they may have to really be careful and maybe even ask the parent or parents if their religious beliefs allows them to do what your bill does. So I know that your bill is not going to go after the individual, the mother, the father, or the family, but the facility itself is what I'm concerned about. And I think that's what this amendment is trying to address. Would you not agree that this bill does allow for penalties for a facility, right?

BURKETT: Since 1989, Texas law approved three methods for disposing of the unborn lost through abortion or miscarriage: interment, disposition in a sanitary landfill, or grinding and discharging into a sanitary sewer system. This bill will simply approve the following methods for disposition: interment, cremation, incineration followed by interment, or steam disinfection followed by interment. I think that that's a very broad scope of how these remains can be handled. I think it's a big improvement on grinding and discharging into the sanitary sewer system. We are simply trying to make sure that these human remains are treated with dignity and respect.

E. RODRIGUEZ: One more question. I don't know if that fully answered the question but one more question here. So say I'm a facility and the mother comes to me and says, "Don't incinerate the fetal tissue. I want to do it in my own religious fashion." Does not this bill make it more likely that the facility is going to say, "I'm sorry, I can't do that. I'm going to have to do it"––in one of those four ways that you just mentioned? Are they going to be put in that position where they're going to have to say to a parent who says, "My religion says that this is the way I would dispose of"––if it's a miscarriage, for example, that "My religion says I need to dispose of this fetal tissue in a certain way"––would this bill not make the facility say, "No, I'm sorry, even if that is your religious belief"?

BURKETT: Mr. Rodriguez, as I mentioned earlier, the current system for disposing of the fetal tissue is disposition in a sanitary landfill, grinding and discharging into a sanitary sewer system. I think that we now have a place that's got a very humane way to handle the disposition of the fetal remains. If you can show me in this bill where it says it cannot be handed over to the mother involved, I'd be happy to look at that. But I do not believe that is in here.

E. RODRIGUEZ: I'm not sure anyone does the grinding anymore.

BURKETT: I know it sounds pretty gross, doesn't it?

E. RODRIGUEZ: They haven't done it in a long time.

CANALES: Earlier today, I called a point of order under Rule 11, Section 3. The chair ruled that there is a single unifying subject for the bill. Is that correct, or am I wrong in that assertion?

CHAIR: That is correct, sir.

CANALES: Okay, and what is that subject?

CHAIR: That's not a parliamentary inquiry.

CANALES: What is the single unifying subject that the chair ruled on with respect to my point of order?

CHAIR: Mr. Canales, within 24 hours you're going to get an explanation.

CANALES: Is the chair refusing to give me an answer with respect to how they ruled with respect to the subject of a two-subject objection under Rule 11, Section 3?

CHAIR: Not at all. You can come down to the front. We'd be happy to discuss it with you.

ALVARADO: Members, I ask that you take into consideration the position that we're putting medical professionals and women's health administrators––we're basically taking away their religious liberty. We're forcing this down their throat. If you stand for liberty, if you stand for religious liberty, then you will vote for this amendment.

[Amendment No. 11 failed of adoption by Record No. 1384.]

[Amendment No. 12 by Anchia was laid before the house.]

ANCHIA: In the immediate past amendment that was tabled, the author of the bill was critical of that fact that it covered only persons. My amendment covers persons and facilities. It's important to understand, members, that this amendment allows religious freedom for both the providers and the woman. Under the amendment, a health care facility would be exempted from the provisions of the bill if compliance with this bill would violate a sincerely held religious belief of either the owner of the facility or of the woman receiving the procedure. Employees of the facility would also be exempt from rules adopted under this chapter if their compliance would violate a sincerely held religious belief.

So members, during this session, as was stated earlier, we've made all kinds of allocations for a person's sincerely held religious beliefs, whether it's those of Christianity, Islam, Judaism, or any other religion. In fact, when I asked the author of the bill how many religions there are in the world, she didn't know. In fact, there are over 4,000; 4,200, it is estimated. So extending this personal liberty and granting the unencumbered ability to express one's religious principles to these cases follows the lead of the approach of this body and the approach it has taken to countless other pieces of legislation. If we're granting religious exemptions to individuals in cases of immunizations and foster care, then it is our duty as legislators to maintain consistency and apply this approach in cases of burials and disposal of remains. This exemption would show reciprocity across Texas law without discrimination.

And I want to mention something, members. We're not talking about the state bar here and religious liberty in the state bar. When you're talking about disposal of remains, burial, and cremation, those are among the most solemn rights in any religion in the world. These are not cavalier exemptions. When you are mandating as a state, as we are doing here––the state is prescribing to women and health care facilities what they must do with remains––that is where the legislature needs to say hold on, you must not encumber on sincerely held religious beliefs. This is not optional in this bill. This is mandatory. And the mandatory nature of this bill––which was confirmed by the bill author who said, no, the attorney general will sue you if you do not comply. You will be fined if you do not comply. And if the stakes are that high, members, then we need to have exemption for sincerely held religious beliefs. Birth, death, burial, cremation, those are among the most important and fundamental and solemn rights that any religion can have. In fact, I was visited in my office by members of the Jewish community from Dallas, and they were opposed to this bill. They found the dictates of this bill offensive on their sincerely held religious beliefs. So for them and any other of the people of faith in the district I represent who find that the state dictating how religious remains should be disposed of is offensive, I move passage of this amendment. It is critical to protecting religious liberty.

HOWARD: I believe, when I just glanced at your amendment here, that you talk about––you're talking specifically about the provider, but you also have, I believe, a phrase in there that has something to do with the wishes of the woman.

ANCHIA: So there are really three universes of people that are covered by this amendment. There is the facility and owners of the facility, there are the employees of the facility, and then there are the women.

HOWARD: Okay, did you know that I have an experience with this? My daughter who has a child that is about one year old, my wonderful grandson, she experienced a miscarriage before that, several months before that, at 11 weeks.

ANCHIA: I'm sorry.

HOWARD: It was very traumatic. I was with her when she found out that there was no heartbeat, and she was devastated. She wanted this pregnancy greatly. She loved being pregnant and what was growing inside of her. But when she found out that it was no longer viable, when she found out that she was going to have to have a D&C and went into the hospital, she was on the gurney to have her D&C and was approached by the provider about signing off on the burial of the remains. Did you know that that's actually what some providers are now doing?

ANCHIA: Yes, I am aware.

HOWARD: And did you know that in this case, she was not wanting that to occur and yet was coerced prior to having the D&C to sign off on that even though it was against her personal beliefs?

ANCHIA: And listen, if we were talking about membership to the state bar or being able to take the bar exam, which are not rights––those are privileges––that'd be one thing. But here, we're talking about something fundamental.

HOWARD: Absolutely.

ANCHIA: This is about how we care for the remains of the dead, and that is a cornerstone of virtually every religion that I am aware of, every major religion certainly. And in the case of Judaism, it is very detailed and prescribed about how we must do this. So if the state is going to be mandating this upon facilities and people, we should be cognizant of the fact that religious tenets might be violated and allow for these facilities, these employees, and these women to opt out based on their sincerely held religious beliefs.

HOWARD: Absolutely, and I want you to know that my daughter was retraumatized. She was already devastated by the miscarriage and then had to be retraumatized by this coercion of how the provider chose, not how my daughter chose, but how the provider chose to dispose of the fetal remains. I am totally with you in support of this amendment in that we must allow the freedom to make these kinds of choices––these very, very personal choices––without imposition from the state, the government, telling us what we have to believe and how we dispose of remains. So thank you for the amendment.

ANCHIA: Thank you. And I bring this for my Jewish constituents, Jewish groups in Dallas that approached me about this and told me that this was offensive to their religious beliefs, and for people of faith who do not want the state government prescribing how they need to dispose of remains.

FARRAR: I'm having trouble hearing, so I didn't hear all of Representative Howard's remarks. So I'm assuming that she was––because I was coming up here to ask you about HB 635 that was passed by this legislature. Do you recall that? And that is––that's where we gave families the right to choose what happens to fetal remains with a miscarriage.

ANCHIA: I don't recall that, but please remind me.

FARRAR: Okay, and I think that's what Representative Howard was talking about, perhaps. I didn't hear, like I said, the entire conversation. But I just came up to talk to you about how it's interesting that here we are as a body having in one session passed what we allow a family––we allow families to make decisions about what happens with fetal remains. Yet in this one, we're denying people religious––their religious objections to whatever happens in their circumstance. But your amendment would give them that religious freedom, correct?

ANCHIA: That is correct.

FARRAR: Thank you. I think you have a good amendment.

BURKETT: We've already discussed this in our last amendment. I would urge you to vote no.

ANCHIA: I'm disappointed that in opposing this amendment, the author would not take questions, and I'm sorry about that, but when we're talking about sincerely held religious beliefs, this is something that's important to this body, and to dismiss that is unfortunate. How we deal with remains of the dead is fundamental to virtually every world religion that I am aware of. I think it merits a discussion for a long time, a very long time, and nothing that we can or should walk away from. It's a discussion that we should stand and have out of respect for members of all different faith traditions throughout the state of Texas, whether they be the Jews who came to me from Dallas that said this bill is offensive to their faith tradition, whether it be people of other faith traditions who find the state intervening in the way they dispose of remains offensive, whether it's people who also find it offensive that the attorney general could sue someone for their sincerely held religious beliefs in the disposition.

And I see right through you, those who want to discriminate and require persons to adhere to these state rules. I can see right through all of it. And so members, I ask that we respect religious liberty. I ask that we allow these sincerely held beliefs of these employees, of these facility owners, and of the women to be respected not just in this legislation but on this house floor. And when I have constituents who tell me that this is offensive to them, I'm ready to have that conversation, and I'm ready to raise my voice and fight for them if I need to, and I'm ready to be impolite. Thank you, members.

[Amendment No. 12 failed of adoption by Record No. 1385.]

[Amendment No. 13 by E. Rodriguez was laid before the house.]

E. RODRIGUEZ: This amendment strikes the requirement that ashes that remain after incineration must then be buried and removes the restriction on where ashes from embryonic tissue can be scattered, allowing them to be treated in the exact same manner as all other human ashes. There is not any public health reasons that ashes created from one type of burning are different or should be treated differently than another. There is no reason other than making compliance with these rules difficult for hospitals and clinics, just like there was no reason to make clinics be mini hospitals or require doctors to have admitting privileges. Members, that's simply what this amendment does.

REPRESENTATIVE HINOJOSA: Representative Rodriguez, I'm glad that you brought up this issue on this bill because this issue in the bill is confusing to me as it is currently written. And I would like to walk you through page 8, Section 697.004, Disposition of Embryonic and Fetal Tissue Remains. And you'll see listed there, it says, "health care facility in this state." Which let me start with, health care facility is not defined, so I'm not exactly sure what we're talking about there. But nonetheless, "health care facility in this state that provides health or medical care to a pregnant woman shall dispose of embryonic and fetal tissue remains that are passed or delivered at the facility by: (1) interment; (2) cremation; (3) incineration followed by interment; or (4) steam disinfection followed by interment. (b) The ashes resulting from the cremation or incineration of embryonic and fetal tissue remains; (1) may be interred or scattered . . ." So as you see, you'll see in (3), it says you can have "incineration followed by interment." It's qualified; it doesn't just list.

E. RODRIGUEZ: It qualifies it. That's correct.

HINOJOSA: It qualifies it. But then later on it says you can scatter cremation remains or incinerated remains. So I, myself, don't understand. It is internally inconsistent in the language, so I appreciate your clarifying language, because it currently doesn't make sense.

E. RODRIGUEZ: Yes, and I think the amendment does a couple of things. It does clarify, for sure, but it also just treats these, whether it's incineration or cremation, treats it the same. It treats the tissue, the ashes, in the same way. There's no real reason that I can think of why you would treat them any differently at all. What we want, if the goal here is treat these ashes as we would any other human remains, then that's what my amendment is trying to do, essentially.

HINOJOSA: Well, and another thing that or another reason I took interest in this part in particular is because I was at the session here in the house where it was announced by our governor that our bishop would be, our churches would be covering the cost of some if not all––it's unclear to me––of these processes.

E. RODRIGUEZ: I heard that in testimony, yes. I didn't get a clear answer how they were going to really do that, but yes.

HINOJOSA: It's my understanding, based on my research and based on my upbringing and based on my relationship with my church pastor and nuns in my church, that scattering of ashes is not, in fact, allowed by my religion. And so it is my question how––

E. RODRIGUEZ: By the Catholic Church?

HINOJOSA: I'm sorry?

E. RODRIGUEZ: By the Catholic Church, is that what you meant?

HINOJOSA: By the Catholic Church––so it's particularly curious to me that yet we're providing for a scattering here, and the Catholic Church is supposed to be paying for this process. So I appreciate your amendment.

E. RODRIGUEZ: There's a lot about this section of the bill that is very confusing to me, too.

HINOJOSA: Well, along those lines, the other part of this bill that is perplexing to me and very concerning, is that we're talking about remains not just from abortions. We're talking about remains of miscarriages.

R. RODRIGUEZ: That's right.

HINOJOSA: And did you know that we have the highest maternal mortality rate in the whole country? Did you know Texas has that distinction?

E. RODRIGUEZ: I did know that we have that terrible distinction, yes.

HINOJOSA: From 2010 to 2014, the mortality rate for mothers––the Texas estimated maternal mortality rate hovered between 17.7 and 18.6 percent, and it's gone up to 33 deaths per 100,000 in 2014. Between 2010 and 2014, more than 600 women died for reasons related to their pregnancies. It concerns me that women who are miscarrying or perhaps believe they are miscarrying but may be suffering from an ectopic pregnancy, for instance, would not seek medical help because they know they have to go through having miscarriage remains put through the process of cremation, perhaps even put in these coffins the Catholic Church is talking about. I mean, we're talking about miscarriage, which is a very unfortunate but very common complication to pregnancies.

E. RODRIGUEZ: Yes, Representative, I think this bill does not make a distinction between an elective abortion or a miscarriage or anything else. Rape, incest––it doesn't make any distinction whatsoever, and that's another big problem that I have with this bill. I think that, with all due respect to the author of the bill, if she were to come up here, I would definitely ask her why is this part of the bill even necessary? Why do we have and we want to put into state law that you have incineration followed by interment? Or steam disinfection followed by interment? Cremation versus incineration––and all of these different distinctions here. If she were here to answer questions, I would definitely ask those questions, because there is actually no public health reason to make any of these distinctions.

HINOJOSA: And I think, in fact, there is a public health reason not to do it. Because when we start to interfere between the patient-doctor relationship, if patients don't trust that they are going to get medical advice without politics from their doctors and that they're going to be subject to these things that don't have anything to do their health when it comes to, perhaps, suffering from an ectopic pregnancy, a miscarriage, they will not seek help for their own health.

E. RODRIGUEZ: I think this bill goes further than that even. It's an undue burden, I think, not only for the mother. It's an undue burden for the physician and an undue burden for the facility itself now. We're asking them to make a lot of these different distinctions they currently don't have to do, right? And I still want to understand. And again, if the author was here to answer questions, one of the questions I would ask her is what is the public health reason for this section of the bill? And I don't believe that there is any.

TURNER: I think I had a similar amendment to what you are proposing right now, and I'm glad you're bringing this to the body. Basically, your amendment would say that any embryonic or fetal tissue may be interred or scattered in any manner as authorized by law for human remains.

E. RODRIGUEZ: Correct, that's exactly what this does.

TURNER: Okay. And right now as I understand it, there is an inconsistency in the bill that I think your amendment would fix where it requires the burial of ashes the result from incineration but not cremation. And also there is a contradiction in the bill that requires incinerated ashes to be buried but also allows them to be scattered, is that right?

E. RODRIGUEZ: That's correct.

TURNER: And your amendment would address that inconsistency which seems to just be probably a drafting error, I would assume. It's so illogical.

E. RODRIGUEZ: I would have to assume it's something like that. So what my amendment does is provide that consistency throughout to make it so that if we're going to try, I think––maybe the intent, possibly, again, if the author was here I would ask her––if we want to treat these remains as we would any human remains, then I think let's be consistent with it and have it follow that law.

TURNER: Well, I think it makes it more consistent. I don't know why anyone would oppose it. And my last question you alluded to is are you closing on––are you laying out your amendment right now or are you closing on your amendment?

E. RODRIGUEZ: I guess I'm closing on my amendment. I think I'm closing on my amendment.

TURNER: Did the bill author not speak on your amendment?

E. RODRIGUEZ: The bill author chose not to speak, no.

TURNER: Well, that's unfortunate, because I think that it's important that we're able to debate measures when they come to the floor. And if we're not able to debate legislation, I don't know that that's consistent with the traditions and practices of the house.

E. RODRIGUEZ: Agree.

REPRESENTATIVE P. KING: Representative, the way I'm reading your amendment, you're striking the part that says you can't put the fetal remains in a public landfill. Is that correct?

E. RODRIGUEZ: That's part of––yes, that's part of what it does.

P. KING: And I don't mean to be disrespectful in asking you this, but I'm assuming you don't want the fetal remains to be put in a landfill.

E. RODRIGUEZ: I want there to be consistency in the law. I want the fetal remains to be treated in a way that other human––the exact way as all other human ashes potentially can be treated.

P. KING: Okay, I just want to make sure you're aware that the way the amendment is currently written––and you may want to re-amend it or something––but make sure you understood the way it's currently written, you're striking the part that says that the fetal remains cannot be disposed of at a public landfill. I just want to make sure you recognize that.

E. RODRIGUEZ: I don't necessarily see it that way, but I appreciate you pointing that out. Members, I appreciate your time. I know this has been a long day, and I know that this is a very serious bill. What I'm trying to do here is just provide some consistency. Let's treat the remains as we would any other human remains.

[Amendment No. 13 failed of adoption by Record No. 1836.]

[Amendment No. 14 by Turner was laid before the house and was withdrawn.]

[Amendment No. 15 by Cain was laid before the house.]

CAIN: We're back up with a nearly identical amendment with one change because of some questions about what the words "terminated pregnancy" meant. We've changed that out to "elective abortion."

REPRESENTATIVE OLIVERSON: So we looked at this amendment, and we just wanted to clarify. In the last part we were talking about, instead of termination we're talking about elective abortion. Is that correct?

CAIN: That's correct.

OLIVERSON: And is the purpose of this amendment your concern that in addition to the profiting off of human remains, fetal remains, that a secondary market subsequent to that––the sale of umbilical tissue, which does contain stem cells and other useful components––that there could be a secondary market for the sale of parts associated with umbilical cords? Is that your concern?

CAIN: That's correct, Dr. Oliverson.

OLIVERSON: Okay. I think you have a great amendment here, and I plan on voting for it.

[Amendment No. 15 was adopted by Record No. 1387.]

[Amendment No. 16 by Moody was laid before the house.]

REPRESENTATIVE MOODY: This amendment is fairly straightforward, but let me just kind of put it in context with the entire bill. You have three criminal sanctions in this bill. One is related to partial-birth abortion, and that is a state jail felony. You have one related to prohibited donations, and you've got one that deals with the purchase and sale of human fetal tissue. This amendment does not have anything to do with the criminal sanctions that are listed on page 14 which deals with purchase and sale. It has nothing to do with the criminal sanction that is listed at the bottom of page 5 going over to page 6 which deals with the prohibited donations. What this has to do with, and I think it's more clarifying than anything else, is the criminal sanction related to partial-birth abortion.

So in the Penal Code we have something that's commonly referred to as law of parties, where we hold people criminally responsible for the conduct of another. This has been a subject that's been debated quite thoroughly over the last several years in the Texas Legislature. I know Representative Leach has worked quite a bit on this issue. And the problem with the way this is constructed––and I'm not here to get after whether we should criminalize this or not, but if you're going to do it, you should probably do it correctly. And so the goal of this, as it's been explained to me, is to criminalize the conduct of the physician or the person that's actually performing this act. However, and actually to that point, there's an applicability section on page 3 that specifically says that the woman who actually has the abortion performed cannot be prosecuted under this section. You know, I listen respectfully to everybody else. I'm talking about subject matter I know a little bit about. The way this is constructed, while we do not allow prosecution of the woman who has the abortion performed, the law of parties grabs everybody else that's involved in this transaction.

So if the goal is to prosecute––and I believe that is the goal, to prosecute the physician and anyone who actually performs the partial-birth abortion. But the way this is constructed––and I'll read you how in law of parties this is how you grab someone else to the criminal conduct of another. They don't have to actually take the criminal conduct that's explained here, but "with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense." So while we exempted the woman, if there was someone that drove her there, they can now be charged with a state jail felony. If there is someone that took a phone call, the receptionist at this facility, they can now be charged with a state jail felony. Someone who prepped the room but did not perform that act, they can be charged with a state jail felony. I believe this is an unintended consequence of the way this law is drafted. And it goes to show you that the intent was to go after the physician and the performers of the conduct, because if you look on page 3, we've excused the woman who got the abortion performed on her. You know why you had to do that? You had to do that because otherwise she could be prosecuted via the law of parties.

So to clarify this. My amendment is very simple. If our goal is to prosecute those who are actually performing these acts, then this amendment would make that a reality in this bill, and it would make sure that you're narrowly tailoring this criminal sanction for this purpose. I don't know if this is acceptable. This is a construct that makes sense. It brings some clarity to this bill, and I think it actually makes it effectuate the purpose of what they're trying to do here. I'm not trying to get at the underlying policy here, but if you're going to create criminal laws and criminal sanctions, and you're going to subject people to felony level offenses, and the goal is to subject the actual person who performed the procedure, then you are going way beyond it in the bill as it is written as it is being discussed today.

REPRESENTATIVE LEACH: I appreciate your work just generally on law of parties issues, and I've enjoyed working with you on this. I guess my question is with respect to this bill, and this is kind of short notice, I apologize for having to ask you these questions from the back mic, but I just learned about this amendment. So on page 2, lines 4 through 6, Section (a), it talks about the physician or another person. The very language says, the "physician or other person may not knowingly perform a partial-birth abortion."

MOODY: Correct.

LEACH: And so I'm wondering, because that word "knowingly" is in there, the mens rea requirement, why is your amendment necessary?

MOODY: I appreciate the question, and actually, that's a good distinction to make. So the "knowingly" language here refers specifically to the intent or the mens rea of the physician or the other person performing––so that goes to their intent to perform it. If we're grabbing them under law of parties, that does not transfer over.

Section 7.02(a)(2) says "acting with the intent to promote," and then it lists everything else: "promote or assist to the commission of the offense . . . solicits, encourages, directs, aids or attempts to aid." It's very broad language. Intent in those cases can just be inferred. So in the case like I talked about, the person driving the woman to the facility, we've exempted her, but under the plain reading of 7.02 in the Penal Code, I don't know how that person is not subjected to a state jail felony prosecution. The same would go for if there was someone, you know, setting up the appointment. I mean, they definitely aided in the commission of the crime as it's laid out here. So the "knowingly" provision goes to "knowingly perform" to the actual actors, but as you well know, through law of parties the intent standard is very different for that party that didn't actually commit the offense.

LEACH: Does your amendment just apply to Section 171.102?

MOODY: Correct, and that's why I tried to lay it out in the beginning. Because there's two other criminal provisions in this bill––one dealing with prohibited donations and the other one with sale and purchase. In those instances, and that's why I'm trying to make this distinction––and I know we've got a lot of noise on the floor right now––but if you're going to construct this correctly, law of parties makes sense in those. Law of parties makes sense in those two instances because the goal is, if it is your goal to go after these folks for that conduct––and it is not mine but it is the folks that support these measures––then you are trying to go after a network of people. So law of parties in those instances, actually, I would say makes sense with the intent of the bill author. However, specifically to the crime relating to performing partial-birth abortion, this provision I don't think effectuates the purpose or the intent that the bill author wanted to get to. So it doesn't impact those two at all.

LEACH: And I understand what you're saying, Representative Moody. I guess my thought process is leading me back to the language of the actual bill here which puts in a "knowingly" requirement for a physician or other person who knowingly performs. So if you're talking about the actual physician or maybe the person that's in the examination room, the procedure room, who's actually handing him the instruments or whatnot, clearly that's different than the receptionist who maybe a week before scheduled the procedure and has no idea what's going on in the room. And so––

MOODY: Well, unfortunately, by virtue of application of 7.02, those people aren't treated any differently. They're a party to the offense and can be charged, as you well know, can be charged with the same level offense whether they met this standard or not because the standard that applies to them is different. It's a standard of acting as a party. This is not held to their conduct. Their intent can be inferred by their actions.

LEACH: Would you be willing to temporarily pull your amendment down and let us talk about this with the author and maybe get some expert opinion on this? Because I trust you enough to know you're doing this for what you feel are the right reasons, but I'd like to vet this a little bit with you if you're willing to pull it down.

MOODY: I'd be happy to do that.

[Amendment No. 16 was withdrawn.]

[Amendment No. 17 by Cook was laid before the house.]

REPRESENTATIVE COOK: This amendment removes ectopic pregnancy from the definition of abortion. This is identical to the language in a bill we passed here last week. I believe there is an amendment to the amendment.

[Amendment No. 18 by Krause was laid before the house.]

REPRESENTATIVE KRAUSE: Members, all we're doing is adding on two definitions to Representative Cook's amendment: ectopic pregnancy and unborn child. It's acceptable to author, and I move adoption.

[Amendment No. 18 was adopted.]

URESTI: Sorry, it went by too fast. By the time I had a chance to finish half reviewing Mr. Cook's, we had a second amendment. Could we get more explanation on your amendment, sir?

COOK: Okay. Once again, last week we passed HB 3771 which removed ectopic pregnancy from the definition of abortion, and that's what we're doing here.

URESTI: I apologize. I still can't hear you. I'm sorry, sir.

COOK: We are removing ectopic pregnancy from the definition of abortion.

REPRESENTATIVE TURNER: My question is actually on the Krause amendment to your amendment that was just adopted. It was adopted very quickly, and I didn't catch what it's about. So I wonder if you or he could come back and speak?

COOK: I'll have him come up to speak to that.

TURNER: Representative Krause, what did your amendment to the amendment do?

KRAUSE: It just added two definitions to the end. It added a definition of ectopic pregnancy, and it added a definition of unborn child. We worked on that language with DSHS and others to come up with that. Remember, the entire purpose of Representative Cook's bill from last week and the amendment today was to take ectopic pregnancy out of the definition of abortion.

TURNER: Correct.

KRAUSE: But we did not have an actual definition of ectopic pregnancy anywhere to kind of guide what that was. So this is just codifying a definition of ectopic pregnancy.

TURNER: So, it looks like your amendment first defines ectopic pregnancy meaning "the implantation of a fertilized egg or embryo outside of the uterus." Is that right?

KRAUSE: That's what the definition is, correct.

TURNER: And that is the medically accurate definition?

KRAUSE: That's right. As I said, we ran this by DSHS. We worked on this for language. We went back and forth on that, and they said yes, that is the medically acceptable term.

TURNER: Okay. And then it looks like the second change in your amendment defines: "'Unborn child' means the individual human being in utero from fertilization until birth"?

KRAUSE: That's correct. And the reason we did that is because "unborn child" is used in various parts of the code and in different parts of the code. I think it's used maybe 16 times, yet we do not have a definition of what "unborn child" is statutorily.

TURNER: Is that also a medically accurate definition?

KRAUSE: Again, that's something we worked with DSHS on. We worked with Chairman Cook on it last week for a couple of days. We would submit language; they would submit language. We'd say what about this, what about that, and they gave us the clearance and authorization for this.

TURNER: Is DSHS asserting that that is a medically accurate definition that you're putting in there?

KRAUSE: We went to them with Representative Cook and said this is the definition we would like to add to that bill. And they looked at it and said, what about this? So we worked with them and said, this final version we have on this piece of paper, what about that? And they said yes, we approve of that. That is something we work with and can be uniform throughout the code, and we'd feel very comfortable with.

TURNER: And have any medical doctors weighed in on this so as to verify it is medically accurate language? Specifically ACOG––

KRAUSE: Well, let me check. Dr. Oliverson? We have; we're good.

TURNER: How about the American Congress of Gynecologist and Obstetricians, have they taken a position on this amendment?

KRAUSE: We felt like since we went through DSHS, the agency that's in charge of promulgating and enforcing these rules and under their knowledge, that as long as we got their approval, we would be okay.

TURNER: So the answer is no?

KRAUSE: Right. I mean, we cleared it through all the channels we felt that we needed to, that I needed to, to make sure that this was something that works in statute.

TURNER: Okay.

KRAUSE: If there's no further questions––

TURNER: Well, I think Representative Howard had a question. I'm sorry––I thought she was visiting with you. I was trying to––

KRAUSE: That's all right.

TURNER: So bottom line, this was––you worked with DSHS on this.

KRAUSE: That's correct.

TURNER: And you're telling us that they are––the agency is comfortable with this language?

KRAUSE: Absolutely.

TURNER: But you have not spoken with the American Congress of Gynecologists and Obstetricians?

KRAUSE: I have not spoken with them.

TURNER: Okay.

KRAUSE: But I don't think that invalidates the definition that we have in front of us. And what I think it really does is add context and definition to other parts of the code section which I think is very vital and important, and so I think these are good definitions.

TURNER: And so I understand you want to define––why is that important to do? I'm wondering specifically what the implications are beyond this bill. If we adopt this and this is defined in statute, what do you see as the value of having this definition in statute?

KRAUSE: I think the value is clarity. It's certainty. It's knowing what these definitions mean anytime. Again, because we've used "unborn child" in numerous places throughout the code, but we don't really have anything to point it back to to say, oh, that's what this code section means. So we've talked about it throughout this session, even today, you know, those terms of art, they need to have meaning. They need to have some certainty that we can go back to, some confidence so that we know what we're doing. So from now on, when we see "ectopic pregnancy," which was the original purpose of what Representative Cook put before us, that helps give us guidance on that in the amendment we adopted today.

TURNER: And my concern is that, as we talk more about this, is that the second part of your amendment to the amendment takes us pretty far afield of Representative Cook's original amendment which is to address ectopic pregnancies. This amendment with that language "from fertilization until birth," would that preclude––would that implicate contraception as a prohibited medication?

KRAUSE: As far as I'm aware, everywhere that "unborn child" is used where contraception is implicated, there's an exception for that. And even in this bill, I believe that there's an exception for it.

TURNER: How about a so-called Plan B or emergency contraception?

KRAUSE: And like I said, anywhere that "unborn child" is defined, we'd have to go back and look at each one of those. But again, I don't think DSHS would knowingly approve of something they thought was going to bring any inconsistency or any questions or any contradictions with other parts of the code. That's why we worked with them multiple days to come up with this. And since they've approved this, it looks like it's going to be consistent across all parts of the code. And since we don't have anything against that yet, I don't see the issue or the concern with this.

TURNER: Okay, so it is not your intent, then, that this language would preclude a woman from taking contraception or emergency contraception including Plan B? Is that––

KRAUSE: Yeah, my only intent is to clarify code sections and to give definitions where we don't have any.

TURNER: So that would still be okay under your amendment?

KRAUSE: We'd have to go look at where every "unborn child" term was used. But again, I can't imagine DSHS signing off on something that would drastically change policy one way or the other.

TURNER: Well, I haven't had the opportunity to visit with DSHS about this to understand. I think you're right. We would have to look at the code and all the times this language is used. So I wonder if you might pull this down so we can get an answer to that, and then bring it back once we have answered those questions. It seems like we have a lot of unanswered questions right now about the implications of this amendment.

KRAUSE: No, I don't think so. I'm happy to come back to you after this and give you the name and contact information of the people we dealt with and show you things. And so––

TURNER: Well, if we've already adopted the amendment, it'll be too late.

KRAUSE: There you go. Actually, I think we've already adopted the amendment.

TURNER: But we've not adopted the––we adopted your amendment to the amendment. We have not adopted the amendment as amended.

KRAUSE: Well, then I don't think I have the authority to pull down the amendment for right now. But the amendment as amended, I think, is perfectly acceptable. I think it's thoroughly vetted. I think it was done with precision knowing the other parts of the code. So I understand that you might have some concerns, but I think is the way to go. and I'm happy to talk to you about those off mic as well.

TURNER: Okay, so for the––to clarify, though, you can't state with certainty with this language that this does not impact a woman's ability to receive contraception or including an emergency contraception, a so-called Plan B?

KRAUSE: Well, I don't think you can state with certainty that it does implicate those.

TURNER: And I'm not, because I don't know. But I think that's the issue, Representative Krause. Because we don't know. I don't know, and it sounds like you don't know, what the implications are.

KRAUSE: But you know who would know is DSHS, and that's why we worked very hard with them.

TURNER: Well, but they're not here.

KRAUSE: Yes, but we worked with them very hard on crafting this language. And again, under the language of Representative Cook's amendment that we've amended, it would not have any implication on that. There's a special––there's explicit language that it wouldn't apply to that. That's a great point, Mr. Rinaldi. The term does not include birth control devices or oral contraceptives. So that is not a part––

TURNER: I'm sorry, could you repeat that, Mr. Krause?

KRAUSE: Yeah, on Representative Cook's amendment, it explicitly states, "The term does not include birth control devices or oral contraceptives." And that's part of the definition of abortion.

TURNER: So when you say "the term"––I don't have his amendment; I have your amendment in front of me. What in his amendment does that refer to?

KRAUSE: His amendment––it refers to the definition of abortion

TURNER: Right.

KRAUSE: And under that it says the term "abortion," that we're defining, "does not include birth control devices or oral contraceptives."

TURNER: Okay. And your language regarding "unborn child" does not interfere, then, with the definition as you just described in Representative Cook's amendment?

KRAUSE: It does not negate that provision. All it does is add clarity to where "unborn child" is used here and in other parts of the code, so we now know going forward what that term means.

[Amendment No. 17 was withdrawn.]

[Amendment No. 19 by Schaefer was laid before the house.]

REPRESENTATIVE SCHAEFER: This amendment is going to modernize the standard reports for abortions that are done already under Chapter 245. Right now, they're done by paper. They're done annually, and this is going to clean it up and bring us into the modern world on doing abortion reports. It maintains confidentiality of patients and physicians.

[Amendment No. 19 was adopted by Record No. 1388.]

[Amendment No. 20 by Moody was laid before the house.]

MOODY: I went ahead and withdrew that previous amendment that we discussed regarding law of parties after a discussion with Mr. Rinaldi. And what we did––this is essentially the same thing except for we are only applying Subchapter A of complicity. And that's really the whole of law of parties as it deals with individuals. There were some concerns that were raised regarding corporations and associations which is in Subchapter B of Chapter 7 of the Penal Code, so that's not here anymore. So we're solely just talking about individuals and not applying prosecution to someone who is solely a party by virtue of Chapter A now. So let's see if I have a verdict on this one.

I appreciate the conversation that I've had with some of my colleagues regarding this issue. I try to be very deferential to folks when I'm dealing with them and their subject matter expertise on other issues. It seems like that is not typically reciprocated in my case, but this is very simple. This is technical. It has nothing to do with the underlying policy of the bill. What this says is, if we want to go after physicians for this conduct and the ones that are performing these procedures, and we're specifically talking about the partial-birth abortion provision, then we have to exempt out prosecution as solely a party. Because in the bill now, we've said we're not going to prosecute the woman for going to get the procedure done, and the reason we did that was because if you didn't do that, you could charge her with a state jail felony under the law of parties, under these very provisions. As the bill stands without this amendment, if someone drove her to the facility, they can be charged with a state jail felony. If that's your intent, I guess that's your intent. The receptionist that took a call, the technician that prepped a room but didn't perform any of these procedures––they're all subject to state jail felonies. And it may sound like a stretch, but this is the way law of parties works. The person at the bank who cashed the check for this procedure is subject to a state jail felony. The way the law of parties works is that you're trying to break down everyone who is involved in the criminal conduct. However; this provision in this bill is specifically––and I believe the intent was to go after the folks that were performing these procedures. And the way you keep that narrowed is by removing prosecution solely as a party under Subchapter A, Chapter 7 of the Penal Code, which is typically referred to as the law of parties.

TURNER: As I understand the law of parties as you've explained it to me, basically under this bill with the criminal offense language in the bill, not only the physician could be prosecuted––and I think you said this a moment ago, but I'm not sure people were listening. And so this could be the receptionist who answers the phone and schedules the appointment could be subject to criminal prosecution under this bill?

MOODY: Correct––and felony level criminal prosecution. Let's not miss out on the charge that we're actually bringing, because the law of parties is very broad. I mean, listen to the language that you would utilize in prosecuting someone: "solicits, encourages, directs, aids or attempts to aid." They don't have to have the specific intent that the physician or the nurse had or the person that's performing the procedure. They just have to have the intent to do one of those things that I just listed, and that is a broad group of people. And I don't think––I would hope. Let me put it this way, I would hope that the intent of the author of this bill is not to criminalize those folks who have nothing to do with the performance of this procedure. But if we don't adopt this, you are subjecting them to that prosecution. There is no way around that.

TURNER: So it could be an accountant, someone in the bookkeeping department, if they did some paperwork or deposited a check, you said, related to the procedure. I suppose it could be if they sent labs out to an outside facility associated with that patient. Ostensibly that person or company and those employees could be tied in with criminal culpability under this bill?

MOODY: Yes, and that's really––and I know there's a lot of discussion around the issue of law of parties. And the reason there's a lot of discussion around the issue of law of parties is because it allows fairly broad application. And so that's why it's built that way, because typically when you're trying to prosecute folks, as I have and a few other people on this floor have, you want to be able to utilize tools like this when you want to go after a group of folks. You're trying to break apart a network of criminality or anything like that. To me, I don't think that was the purpose of this criminal sanction in the bill, or I hope it wasn't. But this would ensure that we're going after the physicians. Someone's doing this procedure? Then you're subject to a state jail felony. And if that's the policy we want to adopt, that's fine.

And this body is about to––I'm sure as soon as we're done with amendments we're going to adopt this policy. But if we're going to do this, all I'm asking is to do it correctly. Make sure that this actually is applied in the real world in the correct way. Otherwise, you're going to have unintended consequences because there's AG prosecution under this bill if the DA locally assents to it. I don't know what the goal of every district attorney out in every county is in terms of this kind of conduct. I don't know what the AG would do here. But we're giving broad authority to prosecute people that have very little involvement in what we're trying to actually target. And I would hope that's not the intent, but if we don't have this on the bill, I can only assume the intent is to prosecute anyone even tangentially related to this procedure.

TURNER: Well, thank you for bringing this, Representative Moody. I would hope that the intent of this bill is not to snare all the people that you just gave examples of who could be snared under this current language if we don't adopt your amendment. So I'm hopeful that the bill author will know if that is her intent. Hopefully it's not, and hopefully she'll accept this amendment, and we can add it to the bill.

MOODY: Thank you, Representative Turner. My conversations will the bill author is that I think this would be left to an up or down vote. And so members, I don't bend your ear on a lot of things. I don't. But when I come up here to talk about policy relating to criminal justice, I'm asking you to please pay attention to the details of the way we're putting these laws together. I've done this before in this session and was ushered off in a straight party vote, so I assume that's about to happen, too. But if you want constructs that work, you might want to look to people that have actually done this, that have actually done this work in the courtroom. And if you don't, and it looks like many of you don't, and we're just going to plod along here and pass whatever we want, and you don't care about the way this works in the real world, then I guess vote against this.

[Amendment No. 20 failed of adoption by Record No. 1389.]

[Amendment No. 21 by Gutierrez was laid before the house.]

REPRESENTATIVE GUTIERREZ: My original amendment had something about free Medicaid until the child turned 18. It was found to be nongermane. And so what this amendment simply does is it calls for a provision of information by the physician that declines to perform on a woman a partial-birth abortion. But that physician has to give notice to the mother of the federal Supplemental Nutrition Program for Women, the child health plan program established under Chapters 63 and 62, financial assistance program under Chapter 31, the Medical Access Program, and the supplemental program. You know, the other day I gave you––I'm under no illusion that we're going to change any minds here today. We talked the other day about when are you going to stop getting yourselves involved in the reproductive decisions of women. I'm not going to go there either today. We've already had that discussion. And I'm not going to make my––I know folks are kind of tired of this discussion, but I think it's important.

If you're going to be pro-life, be pro-life. You know, we have all these titles behind us––pro-life, pro-choice. I think we all want the same for all people. But if you're going to be pro-life, be pro-life. That's what this amendment is about. It's about making sure that we take care of those children. Be pro-birth. Be about making sure that these women are taken care of through the Medicaid system. Be about that child's education. Make sure that we're not undercutting our educational system. Vote for a real fully funded universal pre-K. Be consistent in what you're doing. And so being pro-life isn't just about this one limited instance. Being pro-life means that we really need to take care of these children, and what this amendment will do is it gives every woman notice of all of the state and federal aid available to them should they be denied an abortion under this subsection.

[Amendment No. 21 failed of adoption by Record No. 1390.]

[Amendment No. 22 by Schaefer was laid before the house.]

SCHAEFER: This amendment cleans up the loophole in our law that allows abortions late term based on disability. Move adoption.

REPRESENTATIVE LUCIO: Members, if I could please have your attention. Let me say first, I'm guilty of sitting at my desk for the majority of the day working, getting caught up on things. I left it in the hands of Representative Howard, Representative Anchia, and others to do the heavy lifting, and they were doing a very capable job. And I wanted to respect this issue, because it's a very personal issue to many. But this amendment goes well beyond what I think Representative Burkett is trying to do, and I understand what she's trying to do. However, I don't understand why we always have to go so far. We had a sanctuary city bill, and we had to go further than that. It wasn't just about what was intended in the bill.

Members, this is an amendment that would prohibit a procedure after 20 weeks for fetal abnormalities. Let me explain how you have to––that has to be determined that there's a fetal abnormality. And these are circumstances where they're wanted pregnancies, because to get past 20 weeks, you've got to want that pregnancy. And to get a diagnosis of a fetal abnormality, you have to go to the doctor and do several things. One is you have to have an amniocentesis, where they stick a needle into the belly of a mother and take out genetic fluid and do testing and sometimes multiple testing and sometimes multiple sonograms in order to make this determination.

Members, I'll tell you, when a family receives a diagnosis of a fetal abnormality, one that's already been limited in circumstance by Representative Laubenberg's previous bills, they're devastated. Devastated––and what this amendment will do is require that mother to carry to term for a baby that will die in her arms at birth. And now, we're going to prohibit their ability to terminate the pregnancy. Let me tell you members, this isn't an abortion in this circumstance. This is a termination of a pregnancy that is not viable––a baby that will not live and parents who are devastated in that process. It is the most difficult thing a mother and family will go through.

I've seen many of the members I respect, both democrats and republicans, up here saying what this is is wrong. This is your opportunity to say, "Hey, this is well beyond what we intended," and to take a stand. This is spiking the ball and going as far as possible to be offensive in a debate and on a topic that is personal to everyone both democrat and republican. I know it's hard. It's a hard vote. We take hard votes, but we have to do what is right. This is wrong, members. This is well beyond what is decent. I have not been up here. I have not said anything, but this is personal. And it is personal to families who are devastated in these circumstances. Please do not do this. This is beyond what I can comprehend. And I thank those of you who were up here consoling me, because I am having a hard time keeping together right now, shaking, so upset that this is potentially a vote we have to take.

ANCHIA: Mr. Schaefer, I'm trying to understand your amendment. The way I read it, it removes the exception to the 20-week ban on abortion for cases where there's a severe fetal abnormality. Is that correct?

SCHAEFER: It only applies for late-term abortions.

ANCHIA: But in your amendment, I believe, do you define after 20 weeks as late term?

SCHAEFER: I do.

ANCHIA: So your intent in the amendment is to say anything after 20 weeks is late term. So it's also your belief that second trimester is late term, correct?

SCHAEFER: It's after 20 weeks.

ANCHIA: Do you understand the term second trimester?

SCHAEFER: I do.

ANCHIA: How do you define that?

SCHAEFER: Well, it's after you've had, in a nine-month pregnancy, you've been six months in. You get past the––

ANCHIA: What range is the second trimester?

SCHAEFER: Excuse me?

ANCHIA: What range is the second trimester?

SCHAEFER: Well, it's going to be from the fourth month to the sixth month, right?

ANCHIA: Okay. So during which trimester are most fetal abnormalities detected? First, second, or third?

SCHAEFER: Most are actually, as I understand it, diagnosed early in a pregnancy.

ANCHIA: So I believe it's the second trimester, in fact, where most fetal abnormalities are detected because the development of the fetus––

SCHAEFER: I don't know that that's accurate. Actually, I have––

ANCHIA: I believe it is. It is absolutely accurate.

SCHAEFER: I can quote a––I've seen some facts that talk about most are usually diagnosed about 10 to 12 weeks.

ANCHIA: The tests that are available usually are applied during the second trimester. So what examples––give me some examples of fetal abnormalities that you are removing or seeking to remove from the current exception.

SCHAEFER: You can imagine, I would think, an abortion doctor might believe that Down syndrome is a fetal abnormality that's severe.

ANCHIA: Well, that's, in fact, not permitted under current law. What examples do you have? What types of fetal abnormalities are you seeking to exempt from the current law?

SCHAEFER: What I am seeking to do is say that a baby, regardless of age, created in the image of God, that their life is sacred at every stage, whether they're sick or whether they're healthy.

ANCHIA: So in terms of severe abnormalities was my question. I'm going to ask you about some, and you tell me if you think that they should be part or not of the exemption. A severe brain malformation where parts of the brain are severely underdeveloped or not developed at all––do you consider that not worthy of the exemption?

SCHAEFER: Each one of these abnormalities that you might list is going to be determined by medical professionals.

ANCHIA: So anencephaly, where there's an absence of a major portion of the brain and the portion responsible for cognition, missing skull and scalp, would that be––do you believe that is a severe fetal abnormality?

SCHAEFER: I know that I have talked to doctors. I've talked to doctors who told me that they get it wrong a lot of times. And sometimes they're right. I'm sure they are in their reasonable medical judgment.

ANCHIA: How about thanatophoric dysplasia? It's a Greek term for death bearing. It's when there's a severe and lethal skeletal disorder. You don't believe that after 20 weeks that should be part of the exception?

SCHAEFER: What I believe is that a person, no matter how sick and no matter what age and no matter where they're located, whether in their mother or outside their mother, they are protected from an intentional killing.

ANCHIA: What about stillborn? The child is dead.

SCHAEFER: That's not an abortion. That's not part of this bill.

ANCHIA: Even after 20 weeks, a stillborn––

SCHAEFER: That's not contemplated in this, a baby that's stillborn. This only deals with a baby that has a beating heart.

ANCHIA: So major heart defects as long as the heart is beating is fine. If there are major birth defects where a physician––

SCHAEFER: Well, let me ask you, Mr. Anchia, if the baby was one or two days old, what defects are you okay with a baby being killed?

ANCHIA: So I'm going to ask you, since this is your amendment, and I'm trying to glean your intent. If the fetus has major heart defects and will not, in the judgment of the physician, will not live, your amendment would require the woman to carry that fetus to term. Is that correct?

SCHAEFER: My amendment would follow the same medical advice that many of the doctors in my community would give, which is to say that we don't kill a baby because it's sick.

ANCHIA: Does the fetal abnormality exception apply to any conditions which are not life threatening or incompatible with life? The current fetal abnormality exception?

SCHAEFER: The current law deals with severe fetal abnormalities.

ANCHIA: I'll ask it again. Does the fetal abnormality exception apply to conditions which are not life threatening or incompatible with life, currently?

SCHAEFER: The amendment says––

ANCHIA: No, not the amendment. Current law. Current law.

SCHAEFER: I don't know under current law.

ANCHIA: So the answer is no, in case you didn't know.

SCHAEFER: This says "a fetal abnormality" or "including a severe fetal abnormality."

ANCHIA: Right. So the current exception related to fetal abnormality says that it is life threatening and incompatible with life. Did you know that once a severe fetal abnormality is detected that the diagnosis must be confirmed by a medical specialist? Are you aware of that under the current law?

SCHAEFER: I'll take your word for that.

ANCHIA: In your view, why should women give birth to a medically-unviable pregnancy? What is your rationale?

SCHAEFER: Because it's a person created in the image of God, and that image bearer continues to bear the image of God whether they're one day old, whether they're 90 years old, whether they're 20 years old, or they're 20 weeks old. And it applies whether they're sick or whether they're healthy.

ANCHIA: In 2015, how many pregnancy terminations were performed after 20 weeks? Do you know?

SCHAEFER: I'm not advised.

ANCHIA: So I'll tell you. There were 76, which is 0.13 percent according to DSHS. And in your view, those 76, as concluded by the woman, her doctor, her faith advisor––you think that is an insufficient decision-making process and that women should be forced to bring an unviable pregnancy fully to term. Is that correct?

SCHAEFER: I believe that that pre-born person deserves the protection of law.

ANCHIA: Even if it's unviable, correct?

SCHAEFER: I believe that every person no matter how sick, no matter what their prognosis is, that we should not have the authority as the State of Texas to give any doctor the ability to intentionally kill that person.

ANCHIA: So is an unviable pregnancy a person?

SCHAEFER: Absolutely.

BURKETT: Okay, members, I think we've accomplished a lot of good things in this bill this afternoon. I think we've improved this bill, and I believe that this bill will be better for Texas. However, for many on this floor, this amendment is just a step too far. So I'll leave it to the will of the house as I have everything else, and I'll be voting no.

COOK: I told myself that I would not get up here and speak on this amendment, but I'm going to do it anyway. I want to frame this. This exception came into law in 2011 from the Texas Right to Life group. And it came in for a good reason, because sometimes there are extraordinary and tragic circumstances that visit people that I hope never happens to anybody in here. But I want to be clear on this. Severe fetal abnormality––these children cannot live. They're born––they may have no brain stems; they may have no lungs. There are circumstances that prevent them from living.

Let me just tell you, I hope everyone in here gets an opportunity some time in life to be on State Affairs so you can spend hours on issues like this. Let me tell you, it will change how you think about things. Because let me tell you, everything's not black and white. It's not cut and dry. The human condition sometimes is heartbreaking. Now, severe fetal abnormality, by the grace of God, doesn't happen very often. But let me tell you, when it does, it's the most heartbreaking thing, testimony, that you'll ever hear. We've had testimony from women––let me just say from couples, because it's not just the woman. It's a couple that's faced with this. We've had testimony from couples that were faced with this. Normally, this doesn't manifest itself where they know until after 20 weeks. But when they do, they have a gut-wrenching, life-changing decision that they have to make.

There are couples that make that decision that they want to have this child. They want to hold it in their hands, in their arms, for minutes. And that gives them peace of mind, and I think they should be allowed to do that. But then we have other women that face the same situation, and emotionally, they can't take it. They are so torn up about the pain and suffering that this child is going through in the womb and the fact that they will die within minutes. But you know what was interesting––one woman that testified to this fact. Let me tell you, she still had a funeral. She buried her child, and she still grieves for that child. But for her, she could not emotionally go through with that pregnancy, you know. And I found myself thinking, who am I? Who are we to play God in that circumstance, that horrible circumstance, that we're going to tell somebody what they absolutely have to do? So I'm not here to tell you we should force somebody to go to term or not go to term. I'm here to tell you there are times when we need to let people figure this out on their own, and this is one of those times.

I remember last session when this came up. It had a profound negative impact to this body, and I can tell you it's going on right now. This has got everybody twisted up, and it should, because we're willing to play God with somebody else's life in the most unfortunate circumstance that I hope nobody ever has to go through. But I ask you to think about this. I think we should––and I'm asking this body. I'm asking this body to move to table this amendment.

[Representative Cook moved to table Amendment No. 22.]

[Amendment No. 22 was tabled by Record No. 1391.]

[Amendment No. 23 by Hinojosa was laid before the house and was withdrawn.]

[Amendment No. 24 by Cook was laid before the house.]

COOK: This is the amendment to remove ectopic pregnancy from the definition of abortion. I have added for Mr. Krause the term "'ectopic pregnancy' means the implantation of a fertilized egg or embryo outside of the uterus."

[Amendment No. 24 was adopted by Record No. 1392.]

[Amendment No. 25 by Krause was laid before the house.]

KRAUSE: We've had a lively debate today and a long debate. I'm going to end up withdrawing this amendment. So we're not going to vote on it, but I did want to revisit the issue. I think it's a very, very important one. The term "unborn child" is used throughout our code many times. In fact, I think our parliamentarians were saying it's used over about 60 times in the 14 different chapter codes. And so every time I think we have "unborn child," I think we need to stop and say, what is that unborn child? Who is that unborn child? And so while we're not technically adding a definition today on what it is, I hope we stop and think about what that unborn child really means. I don't think it has any other meaning or could have any other meaning other than from the time that life is fertilized at conception that it has meaning and it has value. So I just wanted to, again, reiterate that today.

I think we had a great robust discussion. I'm proud of everything that was added to the bill today. I appreciate Representative Burkett for all of her work today that she's done on it. I also appreciate Representative Klick and others. But again, I'm going to move to withdraw this amendment, but I think it was a very valuable and worthwhile discussion to have on what an unborn child is. I hope we can make some progress on that in the future.

[Amendment No. 25 was withdrawn.]

S. DAVIS: As you may remember, I offered an amendment earlier in the debate that would keep the ban on partial-birth abortions and strike the remainder of the bill. And that's because I do think that there are some pretty significant constitutional issues regarding the language of the bill, specifically the requirement to bury or cremate the remains. So for purposes of a lawsuit that I know will be filed if this is signed into law by the governor, I just wanted to fully advise the body that according to the bill, the purpose of the chapter dealing with the disposition of embryonic and fetal tissue remains is to express "the state's profound respect for the life of the unborn."

At no point during the debate did we hear any other state interest for that. The state interest is respect for life, which I know many of us do. But on December 9, 2016, the Texas Register published new regulations eliminating current rules governing the proper disposal of medical waste from health care facilities. Regulations would have required health care facilities to dispose of embryonic and fetal tissue, and only this type of tissue, using methods typically used to dispose of human bodies by burial or scattering ashes. On December 12, 2016, the center filed a lawsuit in federal court challenging the regulations as unconstitutional. Here and after, we will refer to as Whole Woman's Health II. On January 27 of this year, the court issued a preliminary injunction enjoining the regulations. CSSB 8 would codify this unconstitutional requirement by mandating that health care facilities that treat pregnant women dispose of embryonic and fetal tissue delivered at the facility by burial or cremation followed by scattering of ashes. The bill explicitly eliminates the standard, most widely accepted method of embryonic and fetal tissue disposal.

CSSB 8 unconstitutionally burdens women seeking pregnancy-related medical care by imposing a funeral ritual on women who have had a miscarriage management procedure, ectopic pregnancy surgery, or an abortion. The United States Supreme Court has long held that in order to pass constitutional muster, an abortion restriction must further a valid state interest and cannot amount to an undue burden. The court last year in Whole Woman's Health made very clear that the undue burden standard requires courts to weigh an abortion restriction's burdens against its benefits. If the burdens outweigh the benefits, the law is unconstitutional. CSSB 8 is plainly in violation of these constitutional principles First, the legislature's stated interest is, like I mentioned earlier, "to express the state's profound respect for life of the unborn by providing for a dignified disposition of embryonic and fetal tissue remains." But a Texas federal court in Whole Woman's Health II, as I mentioned, already rejected this interest and the context of tissue disposal, noting that the challenged rules regulate activities after a miscarriage, ectopic pregnancy, or abortion. Activities occur where there is no potential life to protect.

Further, the court expressed skepticism that the state's proffered interest was genuine, finding that the state interest, likely is a "pretext for restricting abortion access." Even more damning, the court found that even if there were a legitimate state interest, the burdens imposed by the requirements substantially outweigh the benefits. So I believe that the court will most likely conclude, again, that the burdens likely substantially outweigh any claimed benefit associated with CSSB 8. And I share this with you because I want the body to be fully aware of the constitutional issues with CSSB 8.

MINJAREZ: Members, what has happened here today in the form of CSSB 8 is a direct attack on not just the reproductive health of Texas women but on basic empathy for female citizens and your fellow female legislators. Texas women deserve quality and thoughtful legislation focusing on contraceptive accessibility, decreasing the extremely high maternal mortality rates, fighting postpartum depression, and helping mothers and children. I charge each of you to ask why we aren't focusing on a bipartisan issue, the extremely high maternal mortality rate in our state. Members, I ask that you vote against this bill.

BURKETT: Members, I appreciate the very thoughtful and, I hope most of the time, respectful discussion on both parts, on both sides. I think we've done a lot to look at the respectful disposition of aborted babies, and I think we've made a big, big move in that area. And I just hope that we can keep that in mind as we move forward. I appreciate all of you, your thoughts. I appreciate the amendments that were put forth, even those that didn't pass, and that we can all discuss it in a very civil manner. I feel like we have made some positive steps forward for the people in Texas and for the unborn children in Texas and for those that don't ever make it.

[CSSB 8, as amended, was passed to third reading by Record No. 1393.]

SEVENTY-SIXTH DAY — SATURDAY, MAY 20, 2017

SB 8, A bill to be entitled An Act relating to certain prohibited abortions and the treatment and disposition of a human fetus, human fetal tissue, and embryonic and fetal tissue remains; creating a civil cause of action; imposing a civil penalty; creating criminal offenses.

REPRESENTATIVE BURKETT: As we discussed yesterday, SB 8 aligns Texas law with federal law as it relates to the ban on partial-birth abortions. The bill also addresses the sincere concerns expressed by tens of thousands of Texans regarding the donation or potential sale of human fetal tissue derived from elective abortions and to continue our respect for life by providing for the dignified disposition of remains.

REPRESENTATIVE TURNER: Representative Burkett, I wanted to talk with you a moment about one of the amendments that was added to the bill yesterday. That was the amendment by Representative Klick. I believe it was Amendment No. 2. It added a ban on what's medically referred to as the D&E procedure. Are you aware that according to the American Congress of Obstetricians and Gynecologists, "Efforts to ban specific types of procedures will limit the ability of physicians to provide women with the medically appropriate care they need, and will likely result in worsened outcomes and increased complications"?

BURKETT: I am uninformed on that, but I do have Representative Klick here if you have any questions as far as the medical. Since she's the nurse, I would defer to her for any medical questions.

TURNER: Okay, well, I just wanted to ask if you were aware. We could just leave it at that for now. Also, for either one of you, are you aware that relying on precedent from the U.S. Supreme Court––and we talked some about Supreme Court rulings yesterday especially with the severability amendment that you added to the bill––bans on this procedure have been blocked by courts in Kansas. So I'll start over. Are you aware that relying on precedent from the U.S. Supreme Court, bans on this procedure, the D&E procedure, have been blocked by courts in Kansas, Oklahoma, and Alabama? And also, the court has agreed not to enforce the law in Louisiana while litigation is underway. Were you aware of that?

REPRESENTATIVE KLICK: I'm not advised.

TURNER: Representative Klick, this is your amendment. So you are not aware that language enacted in other states, very similar to your amendment, that similar bans such as the one you offered yesterday have been blocked by courts in Kansas, Oklahoma, Alabama, and are on hold in Louisiana. You are not aware of that?

KLICK: I am aware that there are some states that are involved in litigation. Which ones, I'm not advised.

TURNER: Well, in light of that new information, then, since you, in fairness––okay. In fairness, since you were not aware, now that you're aware that at least four states have been blocked or put on hold, would you consider doing a third reading amendment to pull your amendment off of Representative Burkett's bill in light of the high likelihood that your amendment will reach a similar fate in the courts?

KLICK: I am not willing to do that, Representative.

TURNER: You're not willing to do that. So you'd rather us go to court, have yet another law struck down in all likelihood, as the legislature has had in the past, most recently in the U.S. Supreme Court last year. And the taxpayers will be on the hook for hundreds of thousands if not millions of dollars. You would rather have that outcome?

KLICK: No, I don't believe that it will be struck down.

TURNER: Even though in these other states, it has been struck down. You think this is different.

KLICK: There's ongoing litigation.

TURNER: Right. It's ongoing where these laws have been struck down.

KLICK: This law has not been struck down. There is ongoing litigation.

TURNER: I'm sorry I can't hear you.

KLICK: It has not been struck down. There is ongoing litigation.

TURNER: Well, in Kansas, Oklahoma, and Alabama, the ban has been blocked for now. Are you aware that in the most recent appellate court decision, which was in Kansas in their court of appeals, they rejected an argument that a ban on the most common method of second trimester abortion, which your amendment strikes––they reject the argument that your ban would be legal because alternatives method exist, which I believe was your argument yesterday. And the court said: "Given the additional risk . . . associated with these alternatives," such as the ones you discussed yesterday, "some of which are virtually untested, we conclude that banning the standard D&E, a safe method used in about 95 percent of second trimester abortions, is an undue burden on the right to abortion." Were you aware of that?

KLICK: I don't believe that that's true.

TURNER: Well, I'm asserting to you that is what the court said. Do you disbelieve that that's what the court ruled?

KLICK: The Supreme Court will be the final arbiter of this matter.

TURNER: I agree that's very likely. And I would again remind you and the bill author and everyone who voted for this bill, that the last time the Supreme Court had a Texas anti-women's health law before it, which was just under a year ago, when they last ruled, they struck down virtually the entire law because it created an undue burden and blocked women's access to a constitutionally protected right. And that, unfortunately, is the track record of this legislature in passing laws like this. I think your amendment and this bill overall is going to meet a similar fate but only after some women have already been denied access to care and only after the taxpayers are forced to spend millions of dollars defending an unconstitutional law.

REPRESENTATIVE KRAUSE: As Representative Turner just said, there are some court cases in four states, but are you not also aware that in three states that law is not enjoined, and it is in full effect? And there's no case or controversy in those three states, and I think those are Mississippi, Arkansas, and West Virginia.

KLICK: I was not certain which states those were.

KRAUSE: That's right. So it's not in controversy or enjoined everywhere, just in a few states. We can't control whether they have lawsuits or not, but we do know this is in effect in other states and being used well.

REPRESENTATIVE HINOJOSA: You and I discussed a part of your bill yesterday to get clarity about its applicability, and I'm just asking you questions for the record, if that's okay with you.

BURKETT: That's fine.

HINOJOSA: There's a section of your bill, and I just lost it, but that is not entirely clear to me. It references a part of the statute that currently exists, which is Section 241.010, and in your bill, it says subject to this part of the statute, the rest applies.

BURKETT: Correct.

HINOJOSA: Is it your intent that your bill does not do away or change that part of the statute?

BURKETT: That is correct. That is the intent of my bill.

HINOJOSA: Thank you. And that's regarding unintended intrauterine fetal––

BURKETT: Unintended fetal deaths, yes, ma'am.

[Representative Turner raised a point of order against further consideration of SB 8 under Article III, Section 30 of the Texas Constitution. The speaker overruled the point of order.]

[SB 8 was passed by Record No. 1414.]