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New Rules in Texas For When a Physician’s Abortion Attempt is Unsuccessful

The topic of abortion is a sticky one—it is among the most acrimonious points of conflict in the political “culture war” in our nation. Texas finds itself no exception to this—groups such as the ACLU claim our laws make it more difficult for those desiring an abortion to receive one than in most other states. This makes the performance of such procedures a hot-point for doctors, and often brings the practices of such medical professionals under steeper scrutiny than most others must contend with. And in late 2019, a new law was passed in Texas addressing a particular situation rarely encountered by such physicians. Still, it does serve the function of providing clarity in a scenario that might otherwise have been considered murky, so on that level, at least we might consider it welcome.

On occasion, an abortion performed by a physician is unsuccessful. Which is to say: the pregnancy that was supposed to be terminated nevertheless results in a live birth of a baby. The new law was designed to address the ways in which a medical professional in the state of Texas must approach such a scenario, and the ramifications if they do not. HB 16 was passed during legislative session 86, and Governor Abbot signed it into law in June 2019—with an effective start date of the first of September, 2019.

In effect, this bill revises the text of Section 151.002, Family Code, to create an automatic patient-doctor relationship between the newborn in the wake of the abortion and the physician who performed the abortion. The rights inhere in the newborn, and the “physician must exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious physician would render to any other child born alive at the same gestational age.”

The bill further lays out the civil and criminal penalties to which a physician who fails to meet this standard of care will be subject. The civil penalty is a payment to the state of “not less than $100,000”, and the attorney general is enabled to bring suit to enforce this penalty, with attorneys’ fees as well. And a physician brought to criminal court under this new law and found guilty is to be convicted of a felony in the third degree.

From time to time, this subject may arise in the form of a complaint to the Texas Medical Board.

Our law firm helps medical professionals that are falsely accused to keep their licenses when those licenses are under attack by the Texas Medical Board.

BERTOLINO LLP proudly represents licensed physicians across the entire State of Texas, including those who provide abortions, in defense of their professional licenses. To best serve our clients, we have offices in Austin, Houston, and San Antonio. If you are facing a complaint, contact us today or call (512) 717-5432 and schedule a case evaluation.

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Attorney Tony R. Bertolino is the Managing Partner with Bertolino LLP. Our law firm has been able to help people across the state of Texas. If you need an experienced lawyer to represent you, contact Bertolino LLP today.

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