Posted on 08/27/2005 3:00:07 PM PDT by hocndoc
Doctors could face death penalty for illegal abortions, some say
By Tommy Witherspoon Tribune-Herald staff writer
Saturday, August 27, 2005
Doctors who perform illegal abortions in Texas could be prosecuted for capital murder and face a death sentence under recent changes in Texas law that have resulted in apparent unintended consequences.
While officials familiar with the new legislation say such prosecutions are unlikely, the possibility of a doctor on death row, whether intentional or not, puts a sharp focus on the importance of analyzing legislative activity every two years, officials say.
That's what Lindsey Roberts, director of training for the Texas District and County Attorneys Association, was doing last week when he gave a legislative update to local prosecutors and defense attorneys at Baylor University.
Roberts spoke about a bill signed into law by Gov. Rick Perry in June at a Fort Worth church school that requires parental consent before minors can have abortions and places additional restrictions on late-term abortions.
In relation to those changes, Roberts noted that the Legislature two years ago altered the definition of an individual in homicide statutes from “a human being who has been born and is alive” to “a human being who is alive, including an unborn child at every stage of gestation, from fertilization until birth.”
There was debate when the definition of individual was changed about whether the effect would make abortion the equivalent of murder. So lawmakers took particular care to write into the homicide statute that a lawful medical procedure performed with consent by a physician or other licensed health-care provider, if the death of the unborn child was the intended result, is an abortion. That provided a lawful defense or exception to homicide laws.
Continuing to connect the statutory dots, however, Roberts told local prosecutors that there is no such defense provided for a doctor who performs an unlawful medical procedure, such as an abortion on a minor without parental consent.
So, in effect, the doctor would have killed a child younger than 6 in an illegal abortion and thereby subjected himself or herself to potential prosecution for capital murder, Roberts told the dumbfounded audience.
“This is a case study of sorts on how changing one code can have dramatic effects on other codes that actually reference those statutes,” Roberts said. “I presented it as an unintended consequence on a change to the civil code, but you will have to talk to your local prosecutors there about how they will handle those situations. I just presented what the Legislature has done.”
McLennan County District Attorney John Segrest, who attended Roberts' seminar, would not comment publicly on the possible effects of the law changes.
“I don't comment on hypotheticals,” Segrest said.
In signing the parental consent bill, Perry said, “Today, we are laying down a significant marker in the effort to create a culture of life by protecting those who can't protect themselves, by giving voice to the voiceless who yearn for life.”
Robert Black, the governor's deputy press secretary, said last week that his office was not aware of the potential created by the new bill for doctors who perform illegal abortions to face possible death sentences.
“During the legislative process, a lot of folks see conspiracies everywhere,” Black said. “But the fact is that the parental notification law as well as the parental consent legislation that the governor has always supported is intended to protect young girls and protect the rights of parents. What you mentioned is a hypothetical and we are not going down the road of hypotheticals.”
Roberts said he is no conspiracy theorist.
“We are just giving facts. We pitched this as an unintended consequence,” Roberts said. “It shows you that when they change one thing, for whatever reason they changed it, it can have an effect on other things. It happens all the time. We are just telling it like it is.”
State Rep. Phil King, R-Weatherford, authored the original parental consent bill that was killed by a point of order. It later was sponsored by Will Hartnett, R-Dallas, and included in an amendment to other legislation. He said the parental consent law was passed because authorities were convinced that the parental notification law was not effective.
“Wow. I understand what they are saying, but I can tell you that there was never any legislative intent for that at all,” King said. “You have really gotten my curiosity up, though. I am going to have to look into this. So often there is such a weird collateral action that results from some bills.”
Brent Annear, a spokesman for the Texas Medical Center in Austin, said he also was not aware of the possible effects that the law changes might have on physicians.
“We didn't write the legislation and therefore can't speak for the authors. But we certainly would oppose any legislation with that stated purpose,” Annear said.
Pam Smallwood, executive director of Planned Parenthood of Central Texas, said she is aware that unintended legislative consequences occur, but added that this set of circumstances likely won't come into play.
“It is a reach because it presumes that medical providers are not going to follow the law,” Smallwood said. “Certainly, I suspect that medical providers are going to follow the law and certainly, Planned Parenthood is as one of these. We followed parental notification to a ‘T' and we will follow parental consent to a ‘T,' which makes this all nothing to worry about as far as I am concerned.”
Joe Pojman, a former NASA aerospace engineer who is executive director for Texas Alliance for Life, supported the parental consent bill and followed its progress through the Legislature. He said he knows that there was never any intent for doctors who perform illegal abortions to face capital murder charges.
“I don't think that is going to happen and it definitely wasn't the intent,” Pojman said. “No one ever raised this concern during the legislative process, including those of the opposition. I think it is pretty clear that no one has tried to apply the law in that manner for abortions performed without parental notification and we don't expect it to be applied when an abortion is performed on a minor without getting the consent of a parent.”
twitherspoon@wacotrib.com
© 2005 Cox Texas Newspapers, L.P. - The Waco Tribune-Herald
There's little to no chance that this will ever happen.
But, tell me what you would call the unlawful killing of your child or grandchild?
(I hate the death penalty. But the case of 5 men breaking out of the Kenady facility in South Texas, going on to kill police, proves that there are times when the only way to protect society is to remove the threat - permanently. It should be - let's see - the saying goes "rare and legal."
about flippin' time, i do believe!! i am sure it will never be enacted, but this is one "unintentional consequence" i can get behind 100%!
I did more research when I was posting this to my blog - sorry about assuming my memory was good>
That was the Connally Unit in Kenedy, and 7 prisoners escaped:
http://www.cbsnews.com/stories/2001/01/22/national/main266228.shtml
The Officer's name was Aubrey Hawkins. May he rest in peace.
Prayers for the family & relatives of officer Aubrey Hawkins
Pro-life BTTT!
I believe you mean: safe, legal, and rare.
I'm not sure how the death penalty could be "safe." But, yes, I was making a play on the "safe, legal and rare" phrase we often hear about abortion. Which doesn't make sense, either.
The jingo is "safe, legal, and rare". It would be ironic to have a pro-death penalty campaign with that slogan, now wouldn't it?
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