Texas Abortion Providers Not Subject To Death Penalty For Violating State Law, AG Abbott Says

Physicians in Texas who violate a new state abortion-related law (SB 419) should not be charged under the state penal code that carries a maximum charge of the death penalty, Attorney General Greg Abbott (R) said in a legal opinion issued Wednesday, the Dallas Morning News reports (Hoppe, Dallas Morning News, 1/25). Abbott in July 2006 was asked by state Rep. David Swinford (R) to rule on whether the law could subject doctors to capital murder charges. Under the law, physicians are required to obtain signed consent from a parent or guardian before performing an abortion on a minor, and failure to do so results in a license violation. The measure allows for judicial bypass in cases of potential abuse or in cases where the minor is deemed mature enough to make the decision on her own. The law also includes language making it illegal for a woman to obtain a third-trimester abortion unless it is necessary to save her life, if the fetus has "severe, irreversible brain impairment" or if the woman is "diagnosed with a significant likelihood of suffering imminent, severe, irreversible brain damage or paralysis" (Kaiser Daily Women's Health Policy Report, 7/14/06). According to Abbott's opinion, physicians who violate state abortion laws should be charged under the medical occupations code -- which carries the maximum penalty of a third-degree felony, or up to 10 years and a $10,000 fine -- instead of under the penal code, which allows the death penalty. The opinion is nonbinding, meaning that it does not bar a prosecutor from filing capital murder charges against an abortion provider and seeking an appeal from the courts to uphold a conviction, the Morning News reports (Dallas Morning News, 1/25). Swinford said he wanted to seek clarification of the law before any cases were filed in court and because he did not think the state Legislature intended doctors to be subject to the death penalty under the law (AP/Houston Chronicle, 1/24).

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