Texas Equal Access Fund v. Ashley Maxwell ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00347-CV
___________________________
TEXAS EQUAL ACCESS FUND, Appellant
V.
ASHLEY MAXWELL, Appellee
On Appeal from the 431st District Court
Denton County, Texas
Trial Court No. 22-2100-431
Concurring Memorandum Opinion by Justice Birdwell
CONCURRING MEMORANDUM OPINION
Although I join the majority opinion without reservation, I write separately to
emphasize that the private civil cause of action created by the Texas Heartbeat Act,
Tex. Health & Safety Code Ann. §§ 171.201–.212, mirrors in many respects the
private civil cause of action created by the Texas Wrongful Death Act, Tex. Civ. Prac.
& Rem. Code Ann. §§ 71.001–.012, which was the underlying cause of action in Abor
v. Black, 695 S.W.2d 564 (Tex. 1985) (orig. proceeding), the dispositive authority for
the majority opinion.
In 2003, the Legislature amended the Wrongful Death Act to expand the
definition of actionable deaths to those of unborn children. Act of June 20, 2003, 78th
Leg., R.S., ch. 822, §§ 1.01–.02, 2003 Tex. Gen. Laws 2607, 2608 (current version at
Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001, .003); see Fort Worth Osteopathic Hosp., Inc.
v. Reese, 148 S.W.3d 94, 96–97 (Tex. 2004) (acknowledging 2003 amendments). “Not
only did the Legislature expand the term ‘individual’ to include ‘an unborn child at
every stage of gestation from fertilization until birth,’ it also correspondingly
expanded the term ‘death’ to include the failure of an unborn child ‘to be born alive.’”
T.L. v. Cook Children’s Med. Ctr., 607 S.W.3d 9, 67 (Tex. App.—Fort Worth 2020, pet.
denied) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 71.001(3) (“Death”),
§ 71.001(4) (“Individual”)). Though it expanded the Wrongful Death Act to include
the death of an unborn child, the Legislature nevertheless exempted from civil liability
such a death arising from a lawful medical or health care procedure or the lawful
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dispensation or administration of a drug. Tex. Civ. Prac. & Rem. Code Ann.
§ 71.003(c)(2)–(4); see Reese, 148 S.W.3d at 97 (discussing statutory exemptions).
By rendering unlawful any abortion performed or prescribed by a physician or
health care provider absent medical confirmation of the absence of a fetal heartbeat,
the Heartbeat Act clearly narrows the availability of the lawful medicine exemptions
of the Wrongful Death Act in instances of fetal demise. Although they provide
different remedies, the nature of the remedies created is virtually identical. Under the
circumstances, it is unlikely that the rule in Abor would apply solely to the wrongful
death cause of action.1
For this reason, I join and concur in the majority opinion.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: February 29, 2024
1
Given that the vast majority of states have long recognized a wrongful death
cause of action for the death of a viable fetus, the authority of the states to create such
a remedy within the pre-Dobbs viability regime appears unquestioned. See Castro v.
Melchor, 414 P.3d 53, 84 (Haw. 2018) (“[F]orty-one states and the District of Columbia
now permit wrongful death actions to be brought on behalf of stillborn formerly
viable fetuses.”); Krishnan v. Sepulveda, 916 S.W.2d 478, 480–81 (Tex. 1995)
(“[A]pproximately thirty-six states and the District of Columbia recognize a wrongful
death cause of action for the loss of a viable fetus.” (footnote omitted)). We need not
speculate whether the demise of the viability regime post-Dobbs extends such
authority, or how far, to conclude that the nature of the cause of action created by the
Heartbeat Act supports the application of the rule of Abor. But cf. Connor v. Monkem
Co., 898 S.W.2d 89, 90–94 (Mo. 1995) (interpreting Missouri wrongful death statute to
authorize a parental cause of action against a third party for the death of a non-viable
fetus in utero based upon stated legislative interest in protecting unborn life from
conception through live birth).
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