I noted earlier this week that the Texas District and County Attorneys Association (TDCAA) had outlined a scenario in which "Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges" under the new laws. As it happens, Ellen is friends with Diane Beckham, the staff counsel and head of publications for the TDCAA, and thanks to her, I have the following response from Ms. Beckham for clarification:
After each legislative session, TDCAA attorneys read through all the bills that passed and put together various books as well as a three-hour legislative update presentation that we present in about 20 cities in Texas. While reading over bills from the 2005 session, our lawyer who's in charge of coordinator our legislative efforts noticed the change to "lawful medical procedures" as part of a very large sunset bill for the medical licensing profession.
We all remembered that last session, the legislature passed a law called the "Fetal Protection Act." Among other things, that bill changed the definition of "individual" in the Texas Penal Code to include fetuses. What that meant is that the existing definition of capital murder for killing someone under the age of 6 now applied to fetuses (assuming all the other elements of capital murder were met). The same bill, however, set up a two-part defense: (1) for the mother for any reason; and (2) for doctors performing a "lawful medical procedure." (The wording of that defense does not mention abortions specifically -- just refers to "lawful medical procedure.")
Now fast-forward to 2005, when the legislature -- in a bill unrelated to criminal prosecution -- changed the list for what constitutes "lawful medical procedures" (under the Occupations Code, not the Penal Code). Because the legislature changed the definition to make partial-birth abortions and abortions on minors without parental consent (or court order) no longer "lawful medical procedures," this has an effect on that defense for doctors.
Did the legislature intend to make this change? Who knows?? I guess us speculating about whether they meant to or not would be pretty pointless -- we'd have to ask each of the members and the bill sponsor what they intended. Or didn't.
This is not a bill that TDCAA or any of its members were consulted about, and we've never gotten involved with legislative policy decisions about abortion. Nor can I imagine that we ever would.
Our mention of this legislative change in the series of legislative update presentations that we're making around the state is merely to advise the audience (usually a mixture of prosecutors, defense lawyers, officers, and judges) that the change happened. Definitely not to advocate that prosecutors go out and start looking for doctors to prosecute for capital murder. In fact, at each of the four legislative updates where I've co-presented, we make note of the potential constitutional problems with prosecuting doctors for this version of capital murder.
Whether the legislature intended to do it or not, we believe that the 2003 and 2005 changes have changed the law in the way that I described it. But believe me, our books and presentations are meant only to tell audiences about the change -- not to advocate action in response. If the legislature really didn't mean to make that change, it should be simple enough for them to fix it in 2007.