Legislative Loophole: Abortion Doctors Could be Charged with Capital Murder

Post by Spencer Sharp

The Texas District and County Attorneys Association (TDCAA), a non-profit organization dedicated to serving Texas prosecutors and attorneys in government representation, claims that, under Texas law, doctors who perform an illegal abortion can be convicted of capital murder and given the death penalty.

This is a concern held by many across the state. And, looking at the legal language itself, technically, their concern is valid. The explanation:

In 2003, the Texas Legislature passed legislation defining an embryo or fetus as an "individual.” This was a major step for Texas in determining that abortion was a wrongful killing. Further, this new law made the intentional killing of an unborn child a capital murder. There is a defense to this crime that includes “lawful medical procedures,” such as abortion. Thus, at this point, doctors were not committing murder.
During last year’s meeting of the Texas Legislature, lawmakers added late-term abortions (read: 3rd trimester) to the list of things that constitute the “prohibited practice of medicine.” As a result of this new law, performing a late-term abortion was removed from the definition of “lawful medical procedure.”

According to lawmakers who sponsored the 2003 law, their intent was to criminalize those who sought to kill an unborn child. As an exception, doctors who performed abortions were given the “lawful medical procedure” defense. Lawmakers who later sponsored the 2005 law outlawing late-term abortions claim that the intent was to punish doctors for performing these 3rd trimester abortions, but not to punish them with capital murder, the highest murder charge that exists in Texas. In other words, in Texas we’ve generally seen a gradual clamp-down on doctors who perform abortions. Yet even the most right-wing Texas organizations have dismissed the capital murder punishment concerns as “ridiculous.”

On the other side, government watchdog groups claim that, despite what the “intentions” of the lawmakers who wrote these two laws may well have been, it’s not in the law. Because the 2005 law didn’t specifically say that the 2003 law’s capital murder language didn’t apply, the fact remains that doctors could in fact be prosecuted for capital murder in late-term abortion cases. All it would take would be one judge with an axe to grind against abortion doctors, and the law would technically be on that judge’s side when allowing such a capital murder case to proceed.

Pro-life groups, as well as the lawmakers themselves who supported the 2003 and 2005 amendments, claim that capital murder was certainly not what was intended by passing these laws. Many of them claim that this is just the American Left’s way of politicizing abortion for political gain, fear-mongering with doomsday scenarios of doctors being put in the electric chair for performing illegal abortions.

According to recent reports, House State Affairs Committee Chairman David Swinford, R-Dumas, doesn’t believe that the capital murder fears are founded, but nevertheless he claims to be concerned by the TDCAA’s warnings. Swinford has asked Attorney General Greg Abbott to write a formal opinion on the matter, expressing his interpretation.

Rhetoric, partisan bickering, and the vagaries of Texas politics aside, let’s just look at the facts. We should only be asking: What does the law say? While the language of current Texas abortion law may well not be intended to punish abortion doctors with murder charges, it doesn’t say so in the statute. It appears as if many of our State Representatives and Senators could use a lesson from Law-Crafting 101: When drafting legislation, if you accidentally leave a door open in the language, someone will eventually walk through that door. Texas law, as it’s currently written, allows the possibility for doctors to be charged with capital murder. Lawmakers: If you genuinely want to express a specific policy in a law, then draft the legal language accordingly. Step up to the plate and write what you mean. Not too much to ask, right?

Or could it be that many of our lawmakers actually know what they’re doing here? Could it be that Texas abortion law was left intentionally vague by members of our Legislature so that, eventually, doctors who perform abortions could be held to the same standard as those who murder the already-born? Is it possible that the 2003 and 2005 laws are part of a long-term strategy to eventually make performing an abortion in Texas a capital offense? Will the upcoming Legislature see a tightened grip on doctors performing abortions, and a movement in line with the 2003-2005 trend? Are we just being paranoid here?

Your thoughts, Austin?

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