A Fetus Is a Fetus, or Is It?

The way the Texas District and County Attorneys Association sees it, doctors who perform late-term abortions or who perform abortions on minors without parental consent are now eligible to receive the death penalty thanks to several changes in law instituted by legislators during the last two legislative sessions. At least it appears that is what the TDCAA is telling its member prosecutors, argues State Rep. David Swinford, R-Dumas, in a formal Request for Opinion penned to Texas Attorney General Greg Abbott late last month. It is an opinion that not even Swinford, chair of the House State Affairs Committee – which regularly considers all things fetus-related in its regular legislative business, and isn't exactly known as a bastion of forward, progressive thinking – appears to share. At issue are two laws: The first, passed in 2003, defines a fetus as "an individual," and the second, passed last year, makes it a crime to perform third-trimester abortions and abortions on minors without parental consent. Together, TDCAA's Shannon Edmonds wrote in the association's biennial legislative update, the legal changes mean that doctors who perform the outlawed procedures – and, thus, according to state law, intentionally kill a child – are now eligible to face capital murder charges and possibly a death sentence. By "changing the definition of 'individual' … to include 'an unborn child' at any stage of development, the legislature expanded capital murder to include the killing of that unborn child," reads the recent TDCAA handbook.

Changing the law to grant personhood to fetuses has had at least one other apparently unintended consequence, as evidenced in Panhandle 47th District Attorney Rebecca King, who penned a letter to "all physicians" practicing in Potter Co. (part of Swinford's district) informing that the new fetal personhood law meant they would now be required to report to law enforcement any pregnant woman that they know is or has used illegal drugs during pregnancy. Under King's reasoning, the new law meant that women who'd used drugs while pregnant could be prosecuted for "delivery" of narcotics to a minor. (See, "Save the Fetus – From Mom?" Sept. 10, 2004.)

In that case, fetal-personhood law author Rep. Ray Allen, R-Grand Prairie, called King's reasoning nonsense and asked Abbott to weigh in on the interpretation conundrum. In January 2005 he did, ruling in favor of Allen, concluding that the law did not mean that docs had to report the moms to the fuzz. Now, Swinford is asking for a similar opinion that would favor his interpretation that the changes in law do not make doctors eligible for the death penalty. To suggest they are, Swinford writes in his June 26 letter to Abbott, is simply wrong: "In my judgment, Mr. Edmonds' interpretation … is not supported by Texas law or well-established cannons of statutory construction," he wrote. Instead, Swinford argues, the penalties for breaking the laws applied specifically to doctors rest within the Occupations Code. In the case of banned abortion procedures, that would be a Class A misdemeanor or a third-degree felony, depending on the circumstances. "There is no evidence – and Mr. Edmonds identifies none – that the Legislature intended to bring such conduct within the scope of the criminal homicide statutes and to so interpret [the law that way] would be unreasonable," Swinford writes. "It is another basic principle of statutory construction that in enacting a statute, 'a just and reasonable result is intended.' Mr. Edmonds' interpretation is neither."