Attorney General opinion sought on state abortion laws

State Rep. David Swinford has asked AG Greg Abbott for an opinion on whether changes to the state’s abortion laws could lead to capital murder charges for doctors.

Swinford said he disagrees with the interpretation by the Texas District and County Attorneys Association because there is no evidence that the Legislature intended such a result from changes it made to the law governing doctors’ conduct last year.

He said the changes were intended to provide appropriate criminal penalties for a physician’s failure to comply with restrictions on third-trimester abortions or to obtain the consent of a minor’s parent, but “certainly not to subject a physician to prosecution for capital murder.”

Shannon Edmonds, director of governmental relations for the prosecutors’ group, believes a doctor could be charged with capital murder for performing a restricted abortion. He said, however, that he has heard of no such prosecutions.

Edmonds discovered the problem when he was looking at new criminal offenses enacted during the 2005 regular session.

“We started connecting the dots and that’s where we ended up,” said Edmonds.

When Republicans took control of the Texas House in 2003, they began enacting new restrictions on abortion. One of the first laws was the 2003 Prenatal Protection Act, which allows prosecutors to seek criminal charges when a fetus is killed by a violent attack. Capital murder charges were already possible for killing a child younger than 6.

Abortion rights advocates warned in 2003 that the act could be used to criminalize abortion, and the Legislature provided a defense for doctors performing a “lawful medical procedure.”

Last year, lawmakers on the House floor attached two abortion-related amendments to a bill restructuring the Texas Medical Board, which licenses and disciplines doctors.

One prohibited physicians from performing an abortion on a minor without her parents’ consent or a court order. The other banned third-trimester abortions except to save the life of the mother.

The Senate accepted the amendments, and the bill became law Sept. 1.

Edmonds reasoned that because those two acts are no longer “lawful medical procedures,” the defense in the Prenatal Protection Act no longer applies.

I’m curious why it’s taken almost a year for someone to solicit an opinion from AG Abbott. The TDCAA raised this point last August, just before the new laws passed in the 2005 regular session went into effect. Here’s a further clarification of the TDCAA’s position on this. Note that they are not advocating anything; it’s their job to educate District and County Attorneys about new laws, and they see this as a conflict in the law. Why didn’t someone request an opinion from Abbott in 2005?

Joe Pojman, executive director of Texas Alliance for Life, lobbied for the amendments. He believes that the only crime a doctor could be charged with is violating the Occupations Code, a third-degree felony which carries a punishment range of two to 10 years in prison and up to a $10,000 fine.

The Texas Medical Association agrees with that analysis.

“The Legislature specifically established penalties when it passed the new law. Any physician who violates that law obviously should not be subject to capital punishment,” said Brent Annear, a spokesman for the association.

Peggy Romberg, director of the Women’s Health and Family Planning Association of Texas, said the issue needs to be resolved. “This could have a chilling effect on providers and could result in women not having the access they need at a crisis time in their life,” she said.

Ultimately, whatever Abbott rules, I think the Lege is going to have to fix this. I don’t particularly relish that thought, since it will be an opportunity for further mischief by the usual suspects, but the Lege created this conflict in the law, and that means the Lege needs to deal with it. For now, we’ll see what Abbott says and go from there.

UPDATE: Here’s Swinford’s request (PDF).

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5 Responses to Attorney General opinion sought on state abortion laws

  1. Kevin Whited says:

    further mischief by the usual suspects

    Like those darn evil conservatives who want to save babies from extermination? 🙂

  2. Charles Hixon says:

    I don’t know why the AG opinion is sought. Little comes of that opinion. The AG submitted his opinion – several times – that the use of contract Deputies patrolling Harris County subdivisions was illegal but the only result of that opinion was the increase in that practice.

  3. Dennis says:

    Sorry Kevin – a fertilized embryo is not a “baby” and legal abortion is not “extermination”. If you people could just bottle up and sell some of that excess self-righteousness, you could join your buddy William Bennett down in Florida and play the ponies.

  4. Bill says:

    Because if there’s one thing we have to worry about here in Texas, it is babies being exterminated. Keep telling teenagers not to have sex and I’ll keep telling Yao Ming not to be tall. Should be fun to find out who is more affective.

  5. Mathwiz says:

    he Dallas Morning News has reported this as well:

    By defining a fetus as “an individual” in 2003, and then making it a criminal act in 2005 to perform certain abortions [in violation of the state’s parental consent law, for example], legislators might have unintentionally [sic] created a scenario in which physicians could be charged with the death of a child younger than 6 – a crime subject to capital punishment, according to the [TDCAA].

    Though I have my doubts as to just how “unintentional” this was, it does appear that the Lege intended to apply the punishments specified in the 2005 law for violations thereof, not the death penalty! Nevertheless, I could certainly see a zealously anti-abortion prosecutor trying to use this ambiguity to convince a judge and jury to execute a physician for performing an abortion on a minor without her parents’ consent. And in some of the farther-right corners of this state, such an effort might well succeed.

    I doubt even the current Supreme Court would uphold such a sentence, but if Justice Stevens doesn’t make it to 2009, all bets are off.

    “Conservatives who want to save babies from extermination….”

    Aside from the fact that fetuses are not “babies” (and you know it), it always strikes me as odd that “conservatives” never seem to give a damn about saving adults from “extermination” – and indeed frequently appear to savor as much “extermination” as possible, as in Iraq for example.

    Nor are “conservatives” often found in the forefront of struggles for accessible birth control and comprehensive sex ed – policies which actually do save fetuses from “extermination,” unlike draconian punishments for abortion, which mostly just drive it underground. So pardon me if I take their professed compassion for fetuses with a huge grain of salt.

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