Abortion Docs and the Death Penalty, Texas-Style

Could M.D.s face the death penalty for abortion?

Texas DAs are under the impression that current Texas law could allow the death penalty to be used on physicians who performed banned abortion procedures. The Attorney General has been asked to clarify.

Doctors who perform illegal abortions in Texas could be subject to the death penalty because of the way the Legislature has strung together recent statutes, according to the state’s top prosecutor association.

By defining a fetus as “an individual” in 2003, and then making it a criminal act in 2005 to perform certain abortions, legislators might have unintentionally 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 Texas District and County Attorneys Association.

The group has traveled throughout the state to educate prosecutors about changes made in criminal laws in the last regular legislative session and has discussed the abortion situation in its materials as an “expansion of capital murder” and a new way “of committing capital murder.”

I think my favorite line was this one: “legislators might have unintentionally created a scenario in which physicians could be charged with the death of a child younger than 6 – a crime subject to capital punishment.” Unintentionally my ass.

The presentation on new laws was put together by Shannon Edmonds, a former prosecutor and former assistant general counsel to Gov. George W. Bush, and is based on a solid interpretation of the statutes, Mr. Kepple said.

“From what everyone’s said, no one had the intention that the law read like this. But it’s a pretty clear interpretation,” he said.

You can bet that there are prosecutors in Texas who will use it if they can. And, not surprisingly, Texas doesn’t have the most woman-friendly legal system in the world:

The attorney general has 180 days to issue an opinion, but Mr. Abbott’s decision is not binding on a court or a district attorney.

Last year, Mr. Abbott found that a law that extended certain protections to a fetus did not allow prosecutors to pursue pregnant women who abuse drugs or alcohol. Even so, a Potter County district attorney prosecuted and won convictions against two women under the same statute. Appeals are pending.

So even if the AG says that the statute shouldn’t be interpreted in a particular way, it doesn’t matter. All it takes is one over-zealous DA. And if they’re willing to prosecute pregnant women for using drugs or alcohol, is it so much of a stretch to imagine that they just might prosecute abortion providers?

“This is the same connection. Any DA can go after physicians for not getting the right documentation on a parental consent form,” said Peggy Romberg of the Women’s Health and Family Planning Association.

She said with the looming possibility that a prosecutor could go after a doctor, women in Texas might find it more difficult to find a place that will perform abortions.

“The fallout will be to have physicians stop providing care if they believe that their actions might be called into question and fall under homicide statutes,” Ms. Romberg said.

“We already have a dearth of physicians because of the scrutiny and harassment they receive in their personal and professional lives,” she said. “I think it will have a chilling effect on doctors.”

Indeed it will. Interestingly, though, the mainstream Texas anti-choice group opposes the death-penalty-courting interpretation:

Joe Pojman, director of the Texas Alliance for Life, said his group asked Mr. Swinford to get an attorney general’s opinion because of the harsh interpretation of the law by the district attorney’s association.

“It’s not something we would support,” Mr. Pojman said.

Don’t get too excited, though.

“It may be strange hearing that a pro-life organization doesn’t think abortion doctors should be prosecuted as much as conceivable, but we are very committed to the basic principle that the intent of the Legislature should be followed,” he said.

Right. If we’re going to kill abortion providers, it must be with the Legislature’s explicit intent.

All the people who argue that the Texas laws will not lead to the death penalty for abortion providers seem to rely on legislative intent. But as any first-year law student knows, legislative intent only goes so far, and at the end of the day most criminal courts rely on the black-letter law. If this is the black-letter law, it doesn’t matter much what the legislature actually intended.

And the black-letter law seems pretty clear:

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.

The argument against this analysis is interesting:

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.

First, going to prison for a decade for performing abortions? Thanks, Texas. Nevertheless, let’s hope that this analysis wins out.

The American-Statesman clarifies the issue a little better:

A law passed in 2003 said killing an “unborn child” at any stage is capital murder; but it also said performing a lawful medical procedure could be a defense against that charge.

Then, a law passed last year tightened the ban on doctors performing third-trimester abortions (with a few exceptions) and banned them from performing abortions on minors without parental consent or a court order.

Because such abortions are no longer lawful, doctors who perform them could be subject to murder charges, the Texas District and County Attorneys Association says in a written guide to laws passed in 2005.

We’ll see what happens.

(Post title stolen from the title of the email my dad sent me when he passed this info along).


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12 comments for “Abortion Docs and the Death Penalty, Texas-Style

  1. July 14, 2006 at 7:57 am

    Your dad is cooler than my dad, who would have rubbed it in my face with giddy glee. “See, son? That’s how you establish political control in a country. You kill the infidels.”

  2. July 14, 2006 at 8:42 am

    I’ve always thought of the death penalty when someone tells me that the fetal bundle of cells is a human being with the rights of a human being.

    I guess now we’ll see whether people really want to think of it that way. I totally agree that the stated intent of the law has nothing to do with how it will be applied. If it’s on the books, it’ll somehow, someday, get into the courts.

  3. zuzu
    July 14, 2006 at 9:39 am

    So, what’s the penalty for the woman who has the abortion?

  4. Mikey S
    July 14, 2006 at 10:15 am

    Isn’t it a little hypocritical to be pro-life and have the state kill people? Y’know, causing death?

  5. July 14, 2006 at 10:33 am

    “And, not surprisingly, Texas doesn’t have the most woman-friendly legal system in the world.”

    Truest statement I’ve read today.

  6. Dianne
    July 14, 2006 at 11:05 am

    Ironically, hospitals in Texas are literally begging for doctors to work there. A desperate sounding recruiter called me this morning and offered a salary that would be ridiculous in NYC and is probably pornographic in west Texas to work in Lubbock. He probably has no idea why I laughed at him, but really, there is no amount of money that could make it a good idea for a doctor who is also a fertile woman with a daughter to move to Texas at this time.

  7. K
    July 14, 2006 at 4:08 pm

    I live in Lubbock, Dianne, and you are dead right. You could probably be reasonably happy at the county hosp, but there’s a religious one that is hell on wheels.

    As soon as we have this kid, we are outta here. We were chained here by insurance and fertility issues. The fertility ones have been resolved.

  8. Dianne
    July 14, 2006 at 5:10 pm

    K: The irony of it is, I’m from Texas and have relatives in Texas that I wouldn’t at all mind being closer to. But not without substantial social changes. And maybe some global cooling. Texas is HOT!

  9. kate
    July 14, 2006 at 7:24 pm

    You know the pro-lifers are dancing with glee on this one. And they march onto the next state.

    I agree, let them whine and want, women and families with girl children should flee the state pronto.

  10. July 14, 2006 at 9:55 pm

    So, what’s the penalty for the woman who has the abortion?

    Oh I don’t know. Forced to wear a scarlet “A” around town? But then again I have seen comments made by anti-choicers describing the women involved almost as if they were passive bystanders, or even make it so they weren’t even involved at all. Just as they try to erase the woman carrying the embryo/fetus and her humanity. You know, as Amanda Marcotte once stated it’s almost as if they believe (or at least make everybody else believe) that zygotes/embryos/fetii(sp?) are just floating around, and there’s no woman involved in the pregnancy process.

    See, son? That’s how you establish political control in a country. You kill the infidels.”

    Is your father into Machiavelli, by any chance, or Stalin?

  11. July 16, 2006 at 8:42 am

    These statements were made last fall, so I’m glad it’s getting attention again. And hopefully getting solved.

  12. confused
    July 18, 2006 at 1:12 pm

    But then again I have seen comments made by anti-choicers describing the women

    Why are you using the word “anti-choice”? I never see this term used in mainstream news releases.

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