Criminal negligence 

Whether by accident or design, our crazy Lege might execute abortion providers

Mark August 7 on your calendar. That’s the date legal briefs are due in the Texas Attorney General’s office for request RQ-0501-GA, in which Representative David Swinford asks the burning question: Did the 79th legislature intend to hang (or lethally inject, or shoot, or barbecue at the stake, or whatever) some abortion providers? Shortly thereafter, our reliably conservative AG Greg Abbott will decide (at least for the time being) if a doctor who performs a late-term abortion on a viable fetus or for a minor who doesn’t have parental consent or a court waiver, can be prosecuted for capital murder. (p.s. I wanted to be the first to tell you — or warn you, actually — but the Austin American-Statesman took note on Monday, and the AP raised its eybrows on July 13 — with an audible “but what do you expect from Texas?” tone — kicking off a round of coverage in Fort Worth, Houston, and Dallas.)

Swinford’s action was prompted by the 2005-2007 Legislative Update, published by the Texas District & County Attorneys Association, which declared confidently that: “The 79th Legislature added two new ways of committing capital murder, one by direct amendment and the other through expanding prohibited practices for doctors in the Occupations Code.” While the law does provide an exception for doctors performing a “lawful medical procedure,” it doesn’t specifically mention abortion, leaving a loophole for prosecutors that grows in tandem with restrictions on a woman’s right to choose — and casting into doubt the report’s assertion that “This `new capital crime` was undoubtedly an unintended consequence.” Suppose that morning-after pills are criminalized (oh, it’s on the far right’s agenda, you bet); the death penalty, then, for women who take it? Sounds crazy, but with this Lege anything unjust or just plain absurd is possible.

Let me add that it’s our fault — as usual — that we’re facing this political absurdity. In 2003, when the Lege in its wisdom proposed expanding the definition of “individual” to include “an unborn child,” reproductive-rights activists warned that this is where it was all heading, but we let it pass. Now we must rely on lawyers and their ability to argue statutorial interpretation — which is when the public’s attention begins to wander toward the telly and anti-choice operatives wave baby pictures in the air. (On which note I’ll add re: news that an Arizona man proposed using a lottery to increase voter turnout, just please call your damn representatives sometime, send them an email, make them think you might vote if they tick you off badly enough. Extra aside: If we were talking about a lottery e.g. Shirley Jackson-style, that would make democracy even more, um, pressing. But I way digress.)

The shortcomings of legal arguments aside, Swinford does a pretty good job of making the case that Shannon Edmonds, chief author of the Legislative Update, is out of his tree. His thrust is three-pronged, and I’ll try to make it as brief and as legalese-free as possible:

The Occupations Code may prohibit certain late-term and minor abortions, but it defines its own punishments, and those apply to violators rather than the Criminal Code’s capital punishment.

The sections of the Occupations Code that outlaw certain abortion procedures were added after the general prohibitions of the Criminal Code, so they function as exceptions to the big rule, unless the lawmakers made it clear that they intended otherwise.

And Swinford writes, “There is no evidence ... that the Legislature intended to bring such conduct within the scope of the criminal homicide statutes ... and to so interpret the provisions ... would be unreasonable.”

But how often does reason prevail in politics, especially where the abortion debate is concerned? That’s right: almost never. Which is why we can’t assume that Abbott’s office will agree with Swinford. You can keep track of the request’s progress at Oag.state.tx.us/opinopen/opin_recent.php, and while you’re on the site, sign up for opinion updates via email. We elect our attorney general, too, and if you get worried or mad enough, it might not even take a lottery ticket to get you to the polls.


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