This is a story about what can happen when the legislature changes different areas of the law which happen to reference one another without thinking about how mixing the two might result in extereme consequences. In 2003, the Texas Legislature changed the definition of "individual" in the penal code to include "an unborn child at every stage of gestation from fertilization until birth." Life begins at conception in Texas. That means that anyone who causes injury or death to an embryo or fetus can be prosecuted the same as if that "child" were any other individual--assault, murder, etc. Trying to keep things constitutional, the legislature made some exceptions in the penal code. The first one stated that an expectant mother could not be prosecuted under the homicide statute for conduct that resulted in the death of her unborn child. The second exception stated that a physician who was performing a "lawful medical procedure" where the death of the unborn child was the intended result could not be prosecuted. But here is where things start to get hinky. "Lawful medical procedure" is not defined in the penal code. It is defined in the health code. This year, the legislature took up abortion issues. They weren't happy with how their parental notification law was working, so they changed it to a parental consent law. How did they change it? Well, they amended the health code to make it an unlawful medical procedure to perform an abortion on a minor without parental consent. What none of them realized, apparently, is that by doing so, they also altered the application of the homicide statute as it applies to abortion. A doctor who performs an abortion on a minor without parental consent is not merely subject to administrative penalties or revocation of his medical license. He can now be charged with murder. And since murder of an individual under age 6 is a capital offense in Texas, the doctor could be charged with capital murder where the only lawful punishments are death and life without parole. A sharp district attorney caught this "unintended consequence" and brought it up at a recent meeting of state prosecutor
s. Legislators are responding that this was absolutely an unintended consequence and something they never thought about. The governor's representative says they aren't going to talk about hypotheticals and conspiracies. But, this isn't a conspiracy. By the letter of the law, no matter what individual legislators say they intended, a doctor who performs an abortion on a 16-year-old girl without parental consent is subject to the death penalty or life without parole. That is quite a serious "unintended consequence," if you ask me.