Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 24, 2010
The Honorable Frank J. Corte Jr. Opinion No. GA-0803
Chair, Committee on Defense and
Veterans' Affairs Re: Whether a facility must have a license to
Texas House of Representatives perform medical abortions, and whether drugs to
Post Office Box 2910 induce an abortion must be ingested in the presence
Austin, Texas 78768-2910 of the prescribing physician (RQ-0859-GA)
Dear Representative Corte:
You initially asked for our opinion regarding whether a facility must have a license to
perform medical abortions. 1 You subsequently asked for our opinion regarding "whether drugs that
are administered for the purpose of inducing an abortion must be ingested by the patient in the
presence of the physician who has prescribed them for her."2 We have consolidated your two
requests and consider the questions together.
Abortion facilities in Texas are licensed and regulated under chapter 245 of the Health and
Safety Code, the Texas Abortion Facility Reporting and Licensing Act (the "Act"). See generally
TEx. HEALTH & SAFETY CODE ANN. §§ 245.001-.023 (West 2010); see also id. § 245.001 (setting
out short title). With specified exceptions,3 the Act requires that all abortion facilities be licensed.
See id. § 245.003(a). In addition, the Act imposes reporting and other requirements on abortion
facilities, and it provides methods for dealing with violations. See, e.g., id. §§ 245.011 ("Reporting
Requirements; Criminal Penalty"); 245.012 ("Denial, Suspension, Probation, or Revocation of
License"); 245.013 ("Injunction"); 245.014 ("Criminal Penalty"); 245.015 ("Civil Penalty"); 245.017
("Administrative Penalty"). The Act also authorizes the Board of the Department of State Health
lRequest Letter (Oct. 5,2009) (with attachments) [hereinafier Oct. Request Letter].
'Request Letter (Jan. 27, 2010) [hereinafier Jan. Request Letter].
'The Act exempts (I) hospitals licensed under the Texas Hospital Licensing Law; (2) physicians' offices,
licensed under subtitle B, title 3, Occupations Code, that perfonn fewer than a specified number of abortions; and (3)
ambulatory surgical centers licensed under chapter 243, Health and Safety Code. See TEx. HEALTH & SAFETY CODE
ANN. § 245.004(a) (West 2010) (reflecting two different subsections (a)); see also Brief of Lisa Hernandez, General
Counsel, Tex. Dep't of State Health Servs. at I (Nov. 20, 2009) (on file with the Opinion Committee).
The Honorable Frank Corte Jr. - Page 2 (GA-0803)
Services4 ("DSHS") to adopt rules to implement chapter 245 and to impose minimum standards on
abortion facilities. See id. §§ 245.009 ("Adoption of Rules"), 245.010 ("Minimum Standards").
The licensing requirement of chapter 245 applies to an "abortion facility." See id. §
245.003(a). An "abortion facility" is defined as "a place where abortions are performed." Id. §
245.002(2). Thus, to address your question whether a facility must have a license, we must
determine whether a medical abortion that you describe as involving the use of drugs is an "abortion"
under chapter 245.
Chapter 245 defines an abortion as
an act or procedure performed after pregnancy has been medically
verified and with the intent to cause the termination of a pregnancy
other than for the purpose of either the birth of a live fetus or
removing a dead fetus. The term does not include birth control
devices or oral contraceptives.
Id. § 245.002(1). The plain language ofthe definition of abortion does not distinguish between the
termination of a pregnancy through surgical or medical means. See id. ; cf United States v. Ollison,
555 F.3d 152,160 (5th Cir. 2009) (construing the term "employee" in statute and noting that plain
language did not distinguish between "high-level" and "low-level" employees); Exparte Hernandez,
165 S.W.3d 760, 763 (Tex. App.-Eastland 2005, no pet.) (noting language of statute did not
distinguish between different kinds of pardons). The definit,ion of abortion therefore is not limited
to a particular means of accomplishing an abortion. Instead, the definition of abortion includes
simply an act or procedure as specified by section 245.002(1). See TEx. HEALTH & SAFETY CODE
ANN. § 245.002(1) (West 2010).
Texas courts rely on dictionaries to determine the meaning of terms not defined in statute.
See CenterPoint Energy Entex v. R.R. Comm 'n, 208 S.W.3d 608,619 (Tex. App.-Austin2006, pet.
dism'd) (explaining that Texas courts may rely on commonly used dictionaries to discern the plain
meaning of statutory terms) (citing Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005». The
common meaning of the term "act" is "[sJomething done or performed, esp. voluntarily; a deed."
BLACK'S LAW DICTIONARY 27 (9thed. 2009); see also TEx. GOV'T CODE ANN. § 311.011(a) (West
2005) ("Words and phrases shall be read in context and construed according to the rules of grammar
and common usage."); State v. West, 826 P.2d 940, 943 (Mont. 1992) (defining "act" to mean "a
thing done or that which is done"). The word "procedure" is commonly defined to mean "[aJ
specific method or course of action." BLACK'S LAW DICTIONARY 1323 (9th ed. 2009); see United
States v. Berkos, 543 F.3d 392, 398 (7th Cir. 2008); see also In re United States, 665 F. Supp. 2d
1210, 1217 (D. Or. 2009) (defining "procedure" to mean "a series of steps taken to accomplish an
4The "Board" referred to is the former Texas Board of Health, now the Texas Department of State Health
Services. See Act ofJune 2,2003, 78th Leg., R.S., ch. 198, §§ 1.09, 1.19, 1.26,2003 Tex. Gen. Laws 611, 618-23,
636-37,641,729.
The Honorable Frank Corte Jr. - Page 3 (GA-0803)
action" or "a specific method or course of action"). Accordingly, an abortion under chapter 245
involves a deed or something done or a specific method or course of action intended to cause the
termination of a pregnancy as specified by subsection 245.002(1).
In your request letter, you generally describe a medical abortion as one caused by the use of
drugs. See Oct. Request Letter at 4-5 (describing the use of drugs, primarily Mifeprex® known
colloquially as "RU-486," to induce abortions). Prescribing or providing5 a drug is a deed or
something done or a specific method or course of action, and thus is an act or procedure under the
common definitions of those terms. If the prescribing or providing of a drug is done with the
requisite intent to terminate a pregnancy that has been medically verified, then the prescribing or
providing of the drug is an abortion under chapter 245. Accordingly, unless expressly exempted, a
facility performing such an act or procedure within the scope of subsection 245.002(1) is an abortion
facility that must be licensed under chapter 245.
Because our analysis of this question is focused on medical abortions generally and because
questions of intent involve factual considerations that fall outside the purview of an attorney general
opinion, we cannot conclude as a matter of law that the prescribing or providing of any particular
drug is an abortion as defined by subsection 245.002(1).0 See Tex. Att'y Gen. Op. Nos. GA-0581
(2007) at 3 ("Whether a particular action is performed ... intentionally is a fact question. "); see also
GA-0726 (2009) at 3 ("We cannot find and resolve questions of fact in an attorney general
opinion."). As the agency charged with implementation of the Act, DSHS may make that
determination in the first instance. See TEx. HEALTH & SAFETY CODE ANN. §§ 245.005(d) (West
2010) (authorizing DSHS to issue abortion facility license), 245.009 (authorizing DSHS to adopt
rules).
You also inquire whether a drug that is provided with the intent to induce an abortion must
be ingested by the patient in the presence of the prescribing physician. 7 See Jan. Request Letter
S"'Provision' means the supply of one or more unit doses of a drug, medicine, or dangerous drug." TEX.OCC.
CODE ANN. § l57.002(a)(2) (West2004); see also 22 TEx. ADMIN. CODE § 169.2(8) (2010) (Tex. Med. Bd., Defmitions)
(defining "provision").
'Our research indicates that drugs commonly used to induce an abortion may have medical uses other than the
termination of a pregnancy. For instance, the drug methotrexate, a drug sometimes used in combination with another
drug to induce an abortion, is also used in the treatment of cancer. See Planned Parenthood Cincinnati Region v. Taft,
444 F.3d 502, 512 (6th Cir. 2006) (discussing doctor's testimony regarding abortifacient uses of methotrexate as well
as its use as a cancer agent).
'In your requests, you include material related to a specific protocol of use for a particular drug. See Oct.
Request Letter (attached materials pertaining to Mifeprex®); Jan. Request Letter at I (referring to previously submitted
materials pertaining to Mifeprex®). You aver that the protocol requires the drug to be ingested by the patient in the
presence of the physician. See Oct. Request Letter at 4-5. The protocol merely requires that the drug be taken by the
patient in the doctor's office, not in the physical presence of the physician. See id (attached Patient Agreement with
respect to the use ofMifeprex® (mifepristone) requiring patient to agree to "take Mifeprex in my provider's office").
The Honorable Frank Corte Jr. - Page 4 (GA-0803)
at 1. In averring that Texas law requires such a result, you direct us to section 157.001 of the
Occupations Code and section 245.010 of the Health and Safety Code. See id. at 1-2. Section
157.001(a)(l) authorizes a physician to delegate a medical act to a qualified and properly trained
person under specified conditions. TEx. Occ. CODE ANN. § 157.001(a)(1) (West 2004). One of
the conditions is that the medical act is not an act in violation of any other statute. See id.
§ 157.001 (a)(l )(C). Section245.01 O(b) ofthe Health and Safety Code provides that only a physician
may perform an abortion. TEx. HEALTH & SAFETY CODE ANN. § 245.010(b) (West 2010).
You argue that Health and Safety Code section 245.01 O(b) limits Occupations Code section
157.001 (a)( 1) and precludes a physician from delegating the performance of an abortion to another
health care professional. See Jan. Request Letter at 1-2. Even assuming your construction of these
two statutory provisions is in accordance with the legislative intent, neither statute imposes any
requirement on the patient taking a drug provided to induce an abortion. See TEx. Occ. CODE ANN.
§ 157.001 (a)(l) (West 2004) (providing general delegation authority to physician); TEx. HEALTH &
SAFETY CODE ANN. § 245.010(b) (West 2010) (requiring abortion be performed by physician).
Nothing in section 157.001(a)(l) or section 245.010(b) mandates that a patient ingest such drugs in
the presence of the physician. See TEx. OCC. CODE ANN. § 157.001(a)(1) (West 2004); TEx.
HEALTH & SAFETY CODE ANN. § 245.010(b) (West 2010). Rather, it appears generally that a patient
may consume prescribed drugs away from the physician's office. See 22 TEx. ADMIN. CODE § 169.4
(2010) (Tex. Med. Bd., Providing, Dispensing, or Distributing Drugs) (authorizing physician to
"provide, dispense, or distribute drugs for use or consumption by the patient away from the
physician's office or after the conclusion of the physician-patient encounter"). Additionally, in our
examination of other statutory provisions regulating the medical profession, we find no provision
that requires a patient to ingest drugs in the presence of the physician. See generally TEx. Occ.
CODE ANN. §§ 151.001-165.160 (West 2004 & Supp. 2010) ("Physicians" title 3, subtitle B). The
Legislature could have included the requirement that a patient ingest a drug in the presence ofthe
physician. The Legislature did not do so. The Legislature cannot expect the Attorney General to
impose standards that the Legislature has falled to impose. We thus cannot conclude that a patient
must ingest drugs that are provided with the intent to induce an abortion in the presence of the
prescribing physician.
The Honorable Frank Corte Jr. - Page 5 (GA-0803)
SUMMARY
Except as expressly exempted, chapter 245, Health and Safety
Code, requires an abortion facility to be licensed. The prescribing or
providing of a drug, not otherwise excluded as a birth control device
or oral contraceptive, and done with the requisite intent to terminate
a medically verified pregnancy, may be an abortion under section
245.002(1). Whether the prescribing or providing of a particular drug
is an abortion is a fact question that must be determined by the Texas
Department of State Health Services in the first instance.
Texas statutes do not require a patient to ingest drugs that are
provided to the patient with the intent to induce an abortion in the
presence of the prescribing physician.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee