Naked City

As predicted by opponents at the time, the Legislature's redefinition last spring, in Senate Bill 319, of "individual" in the Texas Penal Code to include fetuses before birth -- a measure advocated to protect "the youngest victims" of violent crime -- has spawned (supposedly) unanticipated repercussions. According to the cover story in this month's Texas Medicine, the magazine of the Texas Medical Association, physicians in and around Amarillo have now been advised to report pregnant patients to the authorities if the women show signs of illegal drug use.

That's due to the interpretation of Potter Co. District Attorney Rebecca King, who back in September sent a letter to all physicians in her district informing them that SB 319, by effectively making fetuses into children, makes maternal drug use during pregnancy a form of child abuse, according to the Texas Medicine report. Delivery of a controlled substance to a person under age 18 is a second-degree felony, though in her letter King disclaims any interest in putting mothers away for hard time. As for the M.D.s, under the state Family Code, professionals are required to report to either law enforcement or child-welfare personnel within 48 hours if they suspect a "child " has been abused, neglected, or victimized. Failure to do so is a Class B misdemeanor. In both the Family Code and the drug law, a "child" is defined as a "person" under 18; a "person" is defined in the Penal Code as, among other things, an "individual." Which brings you back to SB 319.

The debate over SB 319 during the spring session mostly turned on how its redefinition of "individual" was the camel's nose under the tent, with the real goal being establishing fetal personhood and then outlawing abortion. In response both to those concerns and to others that the bill would be used to punish rather than protect pregnant women, SB 319's author, Rep. Ray Allen, R-Grand Prairie, specifically exempted -- or thought he had -- the woman carrying the "individual" from civil or criminal liability. Allen tells Texas Medicine he thinks King's interpretation is just wrong, but King says her view is based on a "clear reading" of the statutes. And while SB 319 immunizes health care providers from liability for actions they might take that harm a fetus -- such as performing a legal abortion -- nothing in SB 319 specifically addresses the Family Code reporting requirements upon doctors. Other legal experts cited by the magazine suggest that only an attempted prosecution, of either a mother or a physician, will clarify the issue.

According to the report, physicians in Amarillo have duly reported several pregnant women who failed drug tests -- none of whom have yet been prosecuted. (Drug testing of pregnant women is not -- yet -- routine, but it's not uncommon in cases of fetal distress or premature labor or when the mother opts for anesthesia during delivery.) Those doctors, along with others including the president of the state's obstetrics association, tell Texas Medicine of their obvious concerns that the new law will simply (further) discourage pregnant drug users from getting appropriate prenatal care, thus putting their "individuals" even further at risk.