The Austin Chronicle

Abbott Rules for Mothers

By Jordan Smith, January 14, 2005, News

In a Jan. 5 opinion, state Attorney General Greg Abbott ruled that doctors are not required to report to police their pregnant patients who have or are using drugs. State Rep. Ray Allen, R-Grand Prairie, asked Abbott to weigh in on the matter in September, after 47th District Attorney Rebecca King (prosecuting in Potter and Armstrong counties in the Panhandle) penned a letter to area physicians alerting them to their legal duty to report such activities pursuant to SB 319. Sponsored by Allen and passed into law last session, SB 319 amended the definition of "individual" under the penal code and civil remedy statutes to include an unborn child. Ostensibly, the idea behind the bill was to ensure criminal and civil liability in the event that a crime against a pregnant woman harmed or killed her fetus – for example, in a drunk driving accident.

The measure attracted the ire of some legislators – notably Rep. Jessica Farrar, D-Houston, who argued that the inclusion of a fetus in the definition of individual was merely a backdoor means to squash reproductive rights and legislate when life begins. In part to assuage these fears, the bill as passed specifically exempts the conduct of the mother or her health care provider, to ensure that the law is not interpreted as a ban on abortion. Yet, just three weeks after the law passed, King sent a letter to all doctors in her district, informing them that they could be held liable if they failed to report drug use by an expectant mother. According to King, the definition of individual under SB 319 affected not only the civil and criminal statutes it specifically amended, but also sections of the state's Controlled Substances Act, and of the Family Code related to child abuse. In her letter, King told doctors that her reasoning is based on a "clear reading" of the statutes. Allen protested and asked Abbott to review the law, and on Jan. 5, Abbott ruled in Allen's favor. SB 319 amends only the statutes specifically designated within the bill text, and King's inference that it affects the CSA and Family Code is faulty. A law cannot be amended merely "by reference to its title," Abbott opined. The new law "carefully excepts" the mother's conduct, he wrote, so to hold physicians liable for a patient's drug use, but to exempt the mother from liability would be "extremely inconsistent."

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