Two Scenarios

These are, for now, both fictional accounts of what might happen if either bill becomes law.  I think the scenes illustrate the differences between the two bills currently under consideration in the Texas Legislature...

Scenario 1:  Texas Attorney General defending the Fetal Heartbeat Bill (HB 1500) to the Supreme Court during oral arguments.

Justice: What was the purpose of HB 1500?

AG: To prohibit abortions after a heartbeat has been detected in the child.

Justice: And why would the State have an interest in prohibiting abortions after such a time?

AG: To protect the right to life of the child.

Justice:  When, under Texas law, does the child attain this right to life?

AG:  There is no specification of that in the code.  Each person is endowed by the Creator with the right to life. 

Justice:  Each person.  And how does the State define a person?

AG:  According to the definitions found in the Texas Penal Code, a person is “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth”.

Justice:  But under HB 1500, a fetus can be aborted before a heartbeat is found, correct?

AG:  Yes, that’s correct.

Justice:  And that heartbeat doesn’t show up until quite a few weeks after fertilization, correct?

AG:  Yes, I believe so.

Justice:  According to the 14^th Amendment, equal protection of the law must be given to each person.  But if an unborn child is a person at fertilization, and that unborn child can be killed before a heartbeat is found, then you can’t make the claim that HB 1500 provides 14^th Amendment protection to that child, can you?

AG:  No Your Honor, but we never made that claim.  I said that the State wanted to protect the right to life of the child.

Justice:  But you just admitted that HB 1500 does not protect the life of every person as that term is already defined in Texas law, correct?

AG:  Yes, that’s correct.

Justice:  Who is responsible for determining whether there is a detectable heartbeat or not?

AG:  Under HB 1500, that would be the doctor performing the abortion.

Justice:  The doctor performing the abortion.  Such a person would have a financial interest in carrying on with the abortion procedure, correct?

AG:  I would assume so, yes.

Justice: It seems like the bill puts that doctor in an awkward position.

AG:  The bill would count upon the ethics and integrity of the doctor.

Justice:  The doctor who has been hired to kill and remove the fetus?

AG: Yes.

Justice:  Under the bill, may an abortion be carried out even after a heartbeat is found in the fetus?

AG:  Only if there is a medical emergency.

Justice:  Does the bill define such an emergency?

AG:  No Your Honor, the bill doesn't, but Chapter 171 of the Texas Health and Safety Code does have a definition of Medical Emergency already in place.

Justice:  And what is that definition?

AG:  I quote: "'Medical emergency' means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed."

Justice:  As certified by a physician?  You mean the person performing the abortion?

AG:  Yes, a person doing the abortion in Texas must be a physician, so that certification could come from the person performing the abortion.

Justice:  And we have already established that this person would have a financial interest in carrying on with the abortion procedure?

AG:  Yes.  But once again, we are counting upon the ethics and integrity of that doctor.

Justice:  What happens to a doctor who is found to have violated the bill?

AG:  He faces prosecution for a state jail felony.

Justice:  That would be the least severe felony?

AG: Yes.

Justice:  What happens to the mother who procured the abortion?

AG:  Nothing.  She is not held criminally liable.

Justice:  Under any circumstances?

AG:  No.

Justice:  But she may, under this bill, sue the doctor for wrongful death?

AG:  Yes.

Justice:  I don’t understand.  She hired and paid this doctor to terminate her pregnancy, to kill and remove the baby from her womb, and yet this law allows her to then sue that doctor for wrongful death?  Whose wrongful death?

AG:  The child’s.

Justice:  The child’s?  You mean the child whose right to life this law is supposed to protect?

AG:  Yes.

Justice:  And who is responsible for enforcing the bill?

AG:  The Texas Medical Board.

Justice:  The Medical Board?

AG: Yes.

Justice:  Thank you.

Scenario Two: Texas Attorney General defending the Abolition Bill, HB 896, during oral arguments at the Supreme Court

Justice:  What is the purpose of HB 896?

AG: To protect and ensure the right to life of all persons.

Justice:  And how is a person defined under Texas law?

AG: According to the definitions found in the Texas Penal Code, a person is “a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth”.

Justice:  And HB 896 prohibits abortion on every child who falls under that definition?

AG:  Yes, it does.

Justice:  Are there exceptions to this?  May an abortion be performed for any reason?

AG:  The bill prohibits any medical procedure or prescription with the intent of killing or causing the death of any person.  We expect, in all situations, that medical personnel will work to preserve the life of all patients.

Justice: So the bill treats an abortion as a medical procedure?

AG:  No, it actually removes all the regulations on abortion from the various Texas codes.  An abortion in Texas would be treated as a homicide case.

Justice:  How does that fit with the United States Constitution?

AG:  The 14^th Amendment states that “no State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.  I can state without reservation that HB 896 does that for all persons regardless of their age or stage of development.

Justice:  Who is responsible for enforcing the bill?

AG:  Regular law enforcement.  The same people who would enforce the laws against any other type of homicide.

Justice:  Thank you.