Abortion law raises question of murder charges

A dispute has erupted in Texas over whether state law enables public prosecutors to bring capital murder charges against physicians who violate new abortion restrictions.

On one side is the Texas District and County Attorneys Assn., a nonprofit, nonpartisan corporation that trains and educates independently elected prosecutors in Texas.

TDCAA contends that an abortion law the state Legislature approved this year has the effect -- whether intentional or not -- of exposing physicians who perform prohibited abortions to capital murder charges. In Texas, a capital murder conviction can carry the death penalty.

On the other side is the Texas Medical Assn., which says TDCAA has issued a "cockamamy" interpretation of state law. "It is highly unlikely that this DA society's interpretation is accurate," TMA spokesman Darren Whitehurst said.

TDCAA contends that it does not take a position on what the law should say, only what the law does say. "We're not advocates," said Executive Director Rob Kepple. "But it's our duty to tell people the way the law fits."

According to TDCAA's interpretation, the new abortion law fits together with the state's existing fetal protection law, which allows prosecutors to charge with assault or murder individuals who harm or kill a fetus.

The new law, which took effect Sept. 1, adds two abortion-related items to the list of "prohibited practices" in the Medical Practices Act of the state's Occupations Code.

One item prohibits doctors from performing an abortion on a minor without written parental consent or a judicial bypass order.

The other item prohibits abortions during the third trimester except to save the woman's life or to prevent the woman from sustaining severe, irreversible brain damage or paralysis. It is also allowed if the fetus has a severe, irreversible brain impairment.

Linking two laws

Physicians who perform abortions prohibited under the Medical Practices Act would lose their license. But according to TDCAA, they would also lose their defense against prosecution under the state's fetal protection law, adopted in 2003.

Here's how TDCAA comes to that conclusion:

The fetal protection law allows capital murder charges to be brought against individuals who kill a fetus "at any stage of gestation from fertilization to birth." It provides for certain exceptions, including action taken by the mother or a "lawful medical procedure" such as abortion.

However, abortions that are "prohibited practices" under the Occupations Code cannot be considered "lawful medical procedures" under the state's penal code, Kepple said. With the new abortion law adding two abortion-related items to that prohibited practices list, the exception does not apply, he said.

"The way I look at this, it's pretty clear," Kepple said.

But TMA's Whitehurst said the law is anything but clear. "It's a real stretch to even get to the conclusion that it could result in a murder charge against a physician," he said.

Still, some physicians view the attorney group's interpretation with concern.

"We find it deplorable that this would even be a possibility," said David Kittrell, MD, chair of the Texas Section of the American College of Obstetricians and Gynecologists.

Dr. Kittrell said he believes it highly unlikely that any district attorney would try to make the "quantum leap" of trying to employ TDCAA's legal theory. "But by the same token, there are plenty of zealot district attorneys out there, and there is always a small possibility," he said.

Both Dr. Kittrell and Whitehurst said they are reassured by the fact that lawmakers who authored the fetal protection law and the new abortion restrictions said they never intended for the laws to be used to charge doctors with murder.

The new abortion law's sponsor, Texas Rep. Will Hartnett, said that such a possibility had not occurred to him before his legislation was approved and that he is still not sure how TDCAA reached its conclusion.

"We don't need to have any confusion about a doctor facing murder charges," he said. "There needs to be a clear line, and so definitely the Legislature will need to review the Fetal Protection Act as it relates to the Medical Practices Act."