Texas AG Tightens Licensing/Informed Consent Requirements for Abortion Clinics

By Peter J. Smith
  
AUSTIN, Texas, September 29, 2010 (LifeSiteNews.com) – The Attorney General of Texas released an opinion tightening the licensing requirements for clinics that dispense abortion drugs, as well as the state’s informed consent laws for women seeking an abortion. 
  
Responding to a request from Texas Rep. Franke Corte jr. (R- San Antonio) for clarification, AG Greg Abbott declared that abortion facilities must stop using prerecorded phone calls or one-way conference calls to inform women of the risks of abortion in order to comply with the state’s Woman's Right to Know Act. 
  
Abbott said that in order for a woman to have voluntary and informed consent to a surgical abortion under Texas statute, either the abortionist or a referring physician must give the information required by law in person. 
  
“While the meaning of the statutory text is ambiguous,” wrote Abbott, “it is more likely than not that a court would construe the phrase ‘orally by telephone or in person’ to mean that an abortion facility may not use either a prerecorded telephone message or a one-way conference call to furnish the information required to be provided to a patient by section 171.012 of the Health and Safety Code.”
  
Abbott said the legislature’s intent appears to “require a live conversation between physician and patient, whether the conversation takes place by telephone or in person.” He added that if the legislature intended to mean prerecorded calls or one-way conference calls, it “could have easily provided for them in the statute. It failed to do so here.”
  
In a second opinion, Abbott responded to another of Corte’s concerns, and stated that a clinic dispensing drugs for chemical abortions must be licensed as an abortion facility under the Health and Safety Code. 
  
He added that the “plain language of the definition of abortion does not distinguish between the termination of a pregnancy through surgical or medical means.”
  
However, Abbott made clear that he could not rule on whether the “prescribing or providing of any particular drug is an abortion,” since some drugs with abortion uses, such as Methotrexate, are also used to treat other medical conditions such as cancer. 
  
The ruling does not make clear whether a physician dispensing RU-486 would have to follow the same licensing requirements as clinics, an ambiguity likely to be settled by guidelines from the state health department. 
  
Corte had also asked whether abortifacients may be dispensed without the prescribing physician present, an apparent reference to so-called “telemed” abortions. But Abbott did not address the legality of dispensing the drug remotely, saying only that consuming the drug remotely was legal. 
  
Abbott said that the statutes Corte cited, which allow only an attending physician to administer RU-486, do not require a patient to “ingest such drugs in the presence of the physician.” ”Rather, it appears generally that a patient may consume prescribed drugs away from the physician's office,” Abbott wrote. 
  
Kathi Seay, spokeswoman for Rep. Corte, told LifeSiteNews.com that Abbott indicated the legality of the telemed scheme would have to be settled by the Texas Department of State Health Services, which establishes guidelines for abortion in the state and defines what constitutes an abortion under the statute. 
  
“To my knowledge there is nothing in the rules that discuss the telemedicine concept,” said Seay, adding that she was not sure whether telemed abortionists would try to bend existing rules or approach the health department for a clarification on the question first. 
  
Read Rep. Corte's requests for the AG opinions here: 
·  https://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2010/pdf/rq0858GA.pdf
·  https://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2010/pdf/rq0859GA.pdf
  
Read Attorney General Abbott's opinions here: 
·  https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2010/pdf/ga0802.pdf
·  https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2010/pdf/ga0803.pdf