The Dallas Morning News reports that doctors who perform abortions could be subject to the death penalty. The article is reprinted below. As much as we love the death penalty, especially in Texas, we are obsessed with abortion, for the right reasons and for the wrong reasons. We put up with a cat and mouse game between prospective judges and the politicians who are required to examine their views to see if they are fit to serve on the bench. The judges will not tell the Senators their views on any issue of importance as that strategy allows them to avoid discussing their views on abortion, an issue that only arises in the Supreme Court once or twice per decade. Then the judges get confirmed to the court and they voted to overturn Roe v. Wade, the 1973 Supreme Court decision that recognized a constitutional right to an abortion. Much of national and even local politics revolves around abortion.

But abortion is a particularly important issue for woman as it may represent the most important decision she makes in her lifetime. There's an old saying that if men could have children, abortion would be as legal as cigarettes and liquor. But there is an element of control here. Some men like to tell women what to do. Any claim by a right wing politician that abortion is bad because it constitutes the taking of a human life is fallacious. These same politicians send our children to unjust wars and condemn as treasonous those who have the nerve to ask questions about the war.

Books upon books have been written about the abortion wars. Legal scholars have made a career out of analyzing the Supreme Court's abortion rulings. My favorite story dates to 1992. That year, the Supreme Court shocked us all by re-affirming the right to abortion in a ruling that saw three Republican justices side with the pro-choice position on the theory that the Court cannot just reverse its prior rulings simply because older justices retire and new justices take their place. According to Wikipedia, Justice Anthony Kennedy, a Reagan appointee, "changed his vote at the last minute and joined with fellow Reagan-Bush justices Sandra Day O'Connor and David Souter to form a plurality that would uphold Roe." The law requires some degree of certainty and the court's legitimacy is threatened when it acts like a political body.

That ruling, Planned Parenthood v. Casey, was filled with angry insults from the conservative justices who were quite pissed off that the Court did not quash the right to abortion once and for all. The clerks who work for the justices -- recent law school graduates who conduct much of the research for the opinions and even write some of them -- had a party at the end of the Supreme Court term. By then, the liberal clerks and the conservative clerks were wary of each other. Someone apparently had too much to drink and the clerks actually had a fistfight at the party over the Casey decision. That's right, a fistfight at the Supreme Court.

Could M.D.s face death in abortions? DAs think some cases could bring capital charges; AG asked to clarify recent laws

Wednesday, July 12, 2006
By CHRISTY HOPPE / The Dallas Morning News

AUSTIN – Doctors who perform illegal abortions in Texas could be subject to the death penalty because of the way the Legislature has strung together recent statutes, according to the state's top prosecutor association.

By defining a fetus as "an individual" in 2003, and then making it a criminal act in 2005 to perform certain abortions, legislators might have unintentionally created a scenario in which physicians could be charged with the death of a child younger than 6 – a crime subject to capital punishment, according to the Texas District and County Attorneys Association.

The group has traveled throughout the state to educate prosecutors about changes made in criminal laws in the last regular legislative session and has discussed the abortion situation in its materials as an "expansion of capital murder" and a new way "of committing capital murder."

On Wednesday, Rep. David Swinford, R-Dumas, asked Attorney General Greg Abbott for an opinion to help clarify the abortion laws and their punishment.

The chairman of the State Affairs Committee, which hears most abortion-related bills, said in his letter that he disagreed with district attorneys' group interpretation.

Which code to use?
He stated that the Legislature intended that violations of parental consent procedures or late-term abortions should be punished under the medical Occupations Code. That provides for no greater than a third-degree felony charge.

The prosecutors' group looked to the state's Penal Code.

"We're not advocating one way or another," said Robert Kepple, executive director of the Texas District and County Attorneys Association. "But we're going to talk about it because it's part of the law and people need to know about it."

The presentation on new laws was put together by Shannon Edmonds, a former prosecutor and former assistant general counsel to Gov. George W. Bush, and is based on a solid interpretation of the statutes, Mr. Kepple said.

"From what everyone's said, no one had the intention that the law read like this. But it's a pretty clear interpretation," he said.

The attorney general has 180 days to issue an opinion, but Mr. Abbott's decision is not binding on a court or a district attorney.

Last year, Mr. Abbott found that a law that extended certain protections to a fetus did not allow prosecutors to pursue pregnant women who abuse drugs or alcohol. Even so, a Potter County district attorney prosecuted and won convictions against two women under the same statute. Appeals are pending.

"This is the same connection. Any DA can go after physicians for not getting the right documentation on a parental consent form," said Peggy Romberg of the Women's Health and Family Planning Association.

She said with the looming possibility that a prosecutor could go after a doctor, women in Texas might find it more difficult to find a place that will perform abortions.

"The fallout will be to have physicians stop providing care if they believe that their actions might be called into question and fall under homicide statutes," Ms. Romberg said.

"We already have a dearth of physicians because of the scrutiny and harassment they receive in their personal and professional lives," she said. "I think it will have a chilling effect on doctors."

Steve Levine, director of communications for the Texas Medical Association, said his group welcomes an attorney general's opinion.

"Any physician who violates that law obviously should not be subject to capital punishment," Mr. Levine said.

He declined to comment on whether the potential for prosecution might deter doctors from performing abortions.

Joe Pojman, director of the Texas Alliance for Life, said his group asked Mr. Swinford to get an attorney general's opinion because of the harsh interpretation of the law by the district attorney's association.

"It's not something we would support," Mr. Pojman said.

Intent of Legislature
"It may be strange hearing that a pro-life organization doesn't think abortion doctors should be prosecuted as much as conceivable, but we are very committed to the basic principle that the intent of the Legislature should be followed," he said.

Mr. Pojman pointed out that when abortion was illegal before Roe vs. Wade, the punishment for violations then was about five years.

"We've got to make sure that some rogue district attorney doesn't interpret the law in a way that the Legislature did not intend," he said.

Mr. Pojman said that a prosecution of a doctor might produce the chilling effect feared by Ms. Romberg, but that the existence of "an esoteric publication just for prosecutors" is unlikely to stop the abortion practice in Texas.

Part of the murkiness of the law is that abortion opponents were unable to move a separate bill to outlaw almost all third-trimester abortions – except in cases where the mother's life is in danger – and tighten the parental notification law to require written consent.

And so Rep. Will Hartnett, R-Dallas, attached those provisions as amendments to a bill dealing with the licensing and oversight of doctors. The amendment did not address the state's criminal code, which prosecutors argue govern almost all criminal acts.

"We didn't write the law," Mr. Kepple said. "It appears from all accounts that the language in here was unintended, but it was something that was written that way."