Death row for doctors? Absurd – but possible
EDITORIAL
Austin American-Statesman
Monday, July 17, 2006 Imagine a Texas doctor facing the possibility of the death penalty for performing an abortion on a willing minor or even a grown woman. Although some of the most extreme opponents of abortion might welcome just such a prosecution, the idea probably sounds far-fetched to most Texans. But the Texas District and County Attorneys Association says in a guide to state laws enacted in 2005 by the Legislature that just such a prosecution is possible, even if it is "undoubtedly an unintended consequence" of an effort to limit abortions by teenage girls and women in their third trimester unless their health was endangered. This interpretation of the law, which even abortion activists reject, is worrisome. Remember, abortion itself remains legal, even constitutionally protected under several U.S. Supreme Court rulings. Lawmakers say they never intended to make doctors vulnerable to a capital murder charge, but this is Texas, where an ambitious prosecutor in a strongly anti-abortion county might well decide to score some political points by bringing just such a case if the opportunity arose. State Rep. David Swinford, chairman of the House State Affairs Committee, doesn't think the association is right — but he's concerned enough to have asked Attorney General Greg Abbott for a formal legal opinion. Here's the situation: A law passed in 2003 makes killing an "unborn child" at any stage of pregnancy a capital murder offense. But a legal defense to such a charge is that a doctor was performing a legal abortion. Then, in 2005, the Legislature passed a law that requires pregnant girls under 18 to have parental permission or a court order to get an abortion and bars most third trimester abortions. Put the two laws together, the prosecutors' guidebook points out, and a doctor who aborted the pregnancy of a woman in her seventh or higher month of pregnancy or a minor who did not have parental or court permission theoretically could face a capital murder charge. Even anti-abortion groups are shying away from such an interpretation, though apparently more because of political reality than principled objection to the idea of such a prosecution. Kyleen Wright, president of Texans For Life Coalition, said murder prosecutions were not the intent of the new law and: "We're not trying to get out ahead of public opinion." Those who oppose abortion want eventually to make it illegal, she said, with "stiff measures to act as a deterrent" — though not capital punishment. After all, she said, even among abortion opponents there are diverse views about the morality of capital punishment. Sarah Wheat, spokeswoman for NARAL Pro-Choice Texas, said she welcomed the request for the attorney general's opinion because "when it comes to abortion, you can't assume anything." Wheat is right. Somewhere in Texas a prosecutor is looking at the new abortion law and thinking, "Hmm..."
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