Texas Attorney General Asked To Rule Whether Abortion-Related Law Could Subject Physicians To Murder Charges

Texas Attorney General Greg Abbott (R) has been asked to rule on whether an abortion-related law (SB 419) could subject doctors to capital murder charges, the Houston Chronicle reports (Elliott, Houston Chronicle, 7/12). 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. However, 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. Previously, parents of minors seeking abortion had to be notified 48 hours before the procedure, but parental permission was not required. 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 or if the fetus has "severe, irreversible brain impairment." The law allows exceptions in cases where a woman is "diagnosed with a significant likelihood of suffering imminent, severe, irreversible brain damage or paralysis." Previously, doctors could perform late-term abortions if it were "necessary to prevent the death or a substantial risk of serious impairment to the physical or mental health of the woman" or if a woman's fetus had "a severe and irreversible abnormality, identified by reliable diagnostic procedures" (Kaiser Daily Women's Health Policy Report, 6/7/05).

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State Affairs Chair David Swinford (R) asked for the attorney general's opinion because of a Texas District and County Attorneys Association analysis of state laws passed in 2005, the Austin American-Statesman reports. The analysis says that because it is illegal both for abortions to be performed on a minor without the consent of a parent or guardian and for a physician to perform a third-trimester abortion, doctors who perform them could be prosecuted for murder. The analysis -- written by Shannon Edmonds, the group's director of governmental relations -- says, "This was undoubtedly an unintended consequence but one that law enforcement authorities should be aware of." Edmonds, who said he is unaware of any such prosecutions, said, "After every (legislative) session, there are changes in the law that are real head-scratchers, some intentional and some are unintentional. ... This is just a way to illustrate how unintentional consequences can result in something extreme" (Embry, Austin American-Statesman, 7/13). Swinford, who disagrees with the interpretation of the law by the TDCAA, said the law is intended to provide criminal penalties for the failure of physicians to obtain parental consent or to comply with restrictions on abortions conducted at or after 28 weeks' gestation, but "certainly not to subject a physician to prosecution for capital murder." Joe Pojman, executive director of Texas Alliance for Life, believes that under the law, physicians could be charged only with violating the Occupations Code -- a third-degree felony that carries a punishment range of two to 10 years in prison and up to a $10,000 fine, the Chronicle reports. The Texas Medical Association agrees with TAL's analysis, according to the Houston Chronicle. Brent Annear, spokesperson for TMA said, "The [state] Legislature specifically established penalties when it passed the new law. Any physician who violates that law obviously should not be subjected to capital punishment." Peggy Romberg, executive director of the Women's Health and Family Planning Association of Texas, said that 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 added (Houston Chronicle, 7/12).

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