Untitled Texas Attorney General Opinion

October 27, 1987
Honorable Brad Wright Opinion No. Jh-816
Chairman
Public Health Committee Re: Whether a hospital
Texas House of Representatives district is required to
P. 0. Box 2910 make its facilities
Austin, Texas 78769 available for non-
therapeutic abortions
Dear Representative Wright:
you ask whether the board of managers of the City of
Amarillo Hospital District (AHD) may adopt a policy of
refusing to make its facilities available for non-
therapeutic abortions. We believe such a policy violates
the United States Constitution in certain instances. The
AHD was created by chapter 136, Acts 1957, 55th Legisla-
ture, Regular Session under authority of article IX,
section 5, of the Texas Constitution. The pertinent
constitutional provision authorizes the creation of a
hospital district "to be coextensive withy and have the
same boundaries as the incorporated city of Amarillo as
such boundaries now exist or as they may hereafter be
lawfully extended."1 Tex. Const. art. XI, 55(a).
The district's enabling statute describes the
district's purpose as "owning and operating a hospital or
hospital system for indigent and needy persons. . . .I'
Acts 1957, 55th Leg., ch. 136, 51, at 298. Various
1. A proposed amendment to article IX, section 5
will appear on the ballot at the November 3, 1987
constitutional amendment election. If adopted, the
amendment authorizes the legislature to expand the service
area of the AHD to include certain residents of Randall
County and to permit Randall County to provide financial
assistance to the district.
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Honorable Brad Wright - Page 2 (JN-816)
provisions of the act provide for a Board of Hospital
Managers to be appointed by the governing body of the city
of Amarillo; for the board to contract with other counties
and incorporated cities for the care and treatment of
their residents; for the board to promulgate rules and
regulations for the operation of the hospital: and for the
transfer of ownership to the AHD of lands, buildings, and
equipment that is situated in the district that was owned
by the city of Amarillo or Potter County and used to
furnish medical services or hospital care to indigents or
needy persons by those two entities. L at 854, 5.
The enabling statute was amended by chapter 439, Acts
of the 64th Legislature, Regular Session, 1975 to allow
the city governing body and the board to fix and collect
charges for the occupancy and use of any of the hospital
facilities and services in the amount and manner deter-
mined by the board. See Acts 1975, 64th Leg., ch. 439,
§3A(g), at 1170. 1179-80. The hospital administrator
determines a patient's ability' to pay for services. &
Acts 1957, 55th Leg., ch. 136, 514, at 298, 304.
You tell us that the AHD operates Northwest Texas
Hospital, a general public hospital. It is in the public
hospital that nontherapeutic abortions would be pro-
hibited.2 Generally, a hospital district's power and any
limitations on the exercise of that power are found in the
constitution and the hospital district's enabling statute.
Attorney General Opinion M-171 (1967). Special purpose
districts have only the authority which is clearly granted
by the legislature. Tri-Citv Fresh Water SUDD~Y District
No. 2 of Harris Countv v. Mann, 142 S.W.Zd 945 (Tex.
1940). See Attorney General Opinion Nos. JM-258, JM-257
(1984).
2. The discussion in this opinion is limited to
first and second trimester abortions. House Bill No. 410
enacted by the 70th Legislature took effect on September
1, 1987. The bill prohibits the abortion of a viable
fetus during the third trimester except to prevent the
death or serious impairment of physical or mental health
of the mother or because the fetus has been diagnosed as
having a severe, irreversible abnormality. e Acts 1987,
70th Leg., ch. 469, at 4100.
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Honorable Brad Wright - Page'3 (JM-816)
In 1985, the state constitution was amended to
include article IX, section 9A, which allows the legisla-
ture to determine the health care services a hospital
district is required to provide. No legislation has been
enacted pursuant to the amendment. The Indigent Health
Care and Treatment Act, article 4438f, V.T.C.S., was also
enacted in 1985. This act expressly exempts hospital
districts from the mandatory services provision required
under section 11.01(d) of the act.
Section 11.02 of the Indigent Health Care Act
provides:
A hospital district shall provide the health
care services required under the Texas
Constitution and the statute creating the
district.
Neither article IX, section 5, of the constitution,
nor the district's enabling statute specifies the medical
services to be provided. Both provisions speak in general
terms about the provision of medical aid and hospital
care. Therefore, absent subsequent legislative enactment,
a hospital district may generally determine which services
it will provide.
On the issue of abortion, however, the AHD must be
guided by federal law. The United States Supreme Court
invalidated the Texas laws concerning abortion in Roe v.
Wade 410 U.S. 113 (1973). See also Doe v. Belton, 410
U.S.'179 (1973). &g established that the constitutional
right of privacy encompasses a woman's decision whether or
not to terminate her pregnancy. See id. at 153. A state
must demonstrate a compelling interest when restricting a
fundamental right. Id. at 155. The court held that the
state has no compelling interest during the first
trimester of pregnancy and that the decision to abort
during that period must be free of interference by the
state. Id. at 163. The privacy right involved in the
abortion decision is not absolute. Id. at 154. The court
found state regulation of abortions during the second
trimester appropriate to the extent that the regulation
relates to the preservation and protection of the mother's
health. Id. at 163. The state's compelling interest in
protecting potential life was found to exist from the
point of viability of the fetus. Id. This interest,
according to Roe, allows the state to proscribe abortion
during the third trimester, except when it is necessary to
preserve the life or health of the mother. Id. at 164.
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Honorable Brad Wright - Page 4 (JM-816)
Ten years after the w decision, the Court re-
affirmed its rule of non-interference by the state in the
first trimester abortion decision and the requirement of a
compelling state interest for restricting or prohibiting
abortions at later stages of pregnancy. Citv of Akron v.
Akron Center for Renroductive Health. Inc., 462 U.S. 416
(1983). Speaking for the majority, Justice Powell wrote:
These cases come to us a decade after we
held in Roe v. Wade [citation omitted] that
the right of privacy, grounded in the
concept of personal liberty ,guaranteed by
the Constitution, encompasses a wornants
right to decide whether to terminate her
pregnancy. Legislative responses to the
Court's decision have required us on several
occasions, and again today, to define the
limits of a State's authority to regulate
the performance of abortions. And arguments
continue to be made, in these cases as well,
that we e,rred in interpreting the Constitu-
tion. Nonetheless, the doctrine of stare
decisis, while perhaps never entirely
persuasive on a constitutional question, is
a doctrine that demands respect in a society
governed by the rule of law. We respect it
today, and reaffirm Roe v. Wade.
Id. at 419-20.
Shortly after Roe v. Wade was decided, 'this office
issued Attorney General Opinion H-369 (1974), a lengthy
opinion on the status of state abortion laws and the
permissibility of certain abortion regulations. One of
the questions discussed in that opinion was whether a
hospital may refuse to permit the performance of an
abortion. The opinion traced the judicially drawn
distinction between public and private hospitals on this
issue and concluded that public hospitals may not refuse
to perform abortions unless other similar medical
procedures are likewise prohibited.3
3. For purposes of this opinion, we assume that
Northwest Texas Hospital does perform other medically
similar procedures.
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Honorable Brad Wright - Page 5 (m-816)
Judicial decisions rendered after Attorney General
Opinion H-369 support this conclusion with one limitation.
The United States Supreme Court upheld a public hospital's
refusal to provide a nontherapeutic abortion to an
indigent patient in Poe 1 ke r v. Doe, 432 U.S. 519, reh'cr
denied, 434 U.S. 8~80 (1977): Poelker reiterated the
Supreme Court‘s position in Wah r v. Roe, 432 U.S. 464
, (1977) that public funding for abortions is not constitu-
tionally required. The Supreme 'Court has not ruled
directly on the question of a public hospital's refusal to
provide nontherapeutic abortions to paying patients.
However, there have been cases in other jurisdictions on
this precise question.
Shortly after Roe v. Wade, sunra, the First Circuit
court in Doe v. Hale HOSDital, 500 F.2d 144 (1st Cir.
1974), Fez-t. denied, 420 U.S. 907 (1975) denied a
Massachusetts municipal hospital's authority to "forbid
elective abortions so long as it offers medically
indistinguishable procedures, without violating the
fundamental rights associated with the decision to
terminate pregnancy set out in Roe v. Wade and Doe v.
Bolton." Doe, 500 F.2d at 147.
Wolfe v. Schroerinq, 541 F.2d 523 (6th Cir. 1976)
held unconstitutional a Kentucky institutional conscience
clause statute as applied to public hospitals.
However, the conscience clause cannot
constitutionally permit 'public' hospitals
('state actors'), to refuse to permit the
performance of abortions for 'ethical'
reasons. Such permission would circumvent,
if not directly contravene, R&z& SW?3,
[citation omitted], which permits the state
to interfere with the woman's abortion
decision only in the second trimester, and
then only to protect maternal health, and in
the post-viability stage, to protect
maternal health and fetal life. The
conscience clause, as applied to public
hospitals, unconstitutionally interferes
with the woman's constitutional right to
abortion by permitting public hospitals to
proscribe first trimester abortions and to
proscribe second trimester abortions on
grounds broader than 'maternal health.'
[Citations omitted.]
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Honorable Brad Wright - Page 6 (JM-816)
541 F.2d at 527. A similar conscience clause was stricken
in Minnesota insofar as it applied to public facil,ities.
Hodason v. Lawson, 542 F.2d 1350 (8th Cir. 1976).
In Doe v. Charleston Area Medical Center. Inc., 529
F.2d 638 (4th Cir. 1975) the court held unconstitutional a
private hospital's policy of refusing to perform non-
therapeutic abortions. The Charleston court found the
requisite "state action" in the fact that the hospital
policy was formulated in order to comply with a West
Virginia criminal abortion statute.
In August, 1973, seven months after Roe v. Wade,
sunra, an injunction was obtained in federal district
court in Minnesota to compel a municipal hospital commis-
sion to provide its facilities for the performance of
abortions and to allow physicians to perform abortions at
their discretion in accordance with Roe v. Wade and Doe v.
Bolton. The hospital had adopted a resolution proscribing
abortions except when necessary to save the life of the
mother. Nvbera Citv of -Virainia. Minnesota, 361
F. Supp. 932 (D. MGn. 1973) aff'd, 495 F.2d 1342 (8th
Cir. 1974), anneal dism,d, ;19 U.S. 891 (1974) [herein-
after Nvbera I]. In 1980 the city of Virginia sought
unsuccessfully to vacate the pvbera I injunction. Nvberq
. .
v. Citv of IraIn ia, 667 F.2d 754 (8th Cir. 1982), ODD eal
dism,d, 462'U.S. 1125 (1983) [hereinafter Nvbera II]. The
city relied on Maher v. Roe, sunra, Poelker v. Doe, w,
and other Supreme Court decisions issued subsequent to
Nvbera I in seeking relief from the seven year injunction.
The Nvbera II court refused to vacate the injunction,
reasoning that the cases relied on dealt with the issue of
abortion funding. The hospital resolution found
constitutionally offensive in Nvbera I applied to
indigents and nonindigents alike. Nvbera II distinguished
the Nvbera I requirement that a public hospital make its
facilities available for the performance of abortions by
staff physicians from the cases in which the availability
of direct public expenditures was at issue.
In Poelker the Supreme Court determined
that a ciiy hospital was not required a
SDend public funds to hire doctors who would
perform abortions otherwise provide
publicly financed hI:pital services for
indigent women.
There is a fundamental difference between
providing direct funding to effect the
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.
..,
Honorable Brad Wright - Page 7 (``-816)
abortion decision and allowing staff
physicians to perform abortions at an
existing publicly owned hospital. While it
is true public money may have been used to
build the hospital, that capital expenditure
was to provide facilities for a large number
of operations, of which first trimester
abortions was but one. The decision that a
city must allow staff physicians to perform
abortions at the sole community hospital is
far removed from those decisions which do
not~reguire direct public expenditure to
facilitate abortions. (Emphasis in
original.)
667 F.2d at 758.
The Fifth Circuit was confronted with the issue of a
hospital's policy to prohibit elective abortions in Greco
v. Oranae Memorial HOSDital CorDoration, 513 F.2d 873 (5th
Cir.), cert. denied 423 U.S. 1000 (1975). The Greco
court determined that the hospital was private, that there
was no state action involved in the abortion policy, and
that the circumstances did not warrant ,,imposition of
constitutional restrictions upon Orange Memorial
Hospital.,, 513 F.2d at 882. The appellate panel did not
expressly state that a different result would have been
reached upon a finding that the hospital was public;
however, the decision strongly implies this conclusion.
Moreover, express language to this effect is found in the
district courtrs ruling on this matter. Greco v. Oranae
memorial HOSDital COrDoratiOn, 374 F. Supp. 227 (E.D. Tex.
1974). Judge Steger, in dismissing the complaint, wrote:
Therefore, this Court is in accord with
the reasoning of recent decisions that a
private hospital, whether denominational or
not, is free to decide the elective abortion
question for itself. On the other hand, a
purely public hospital, such as the one
involved in Bathawav v. Worcester City
tfosnital, could not prohibit elective
abortions if it had the available space and
personnel and performed other surgical
procedures involving no greater risk to the
patient.
374 F. Supp. at 233.
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Honorable Brad Wright - Page 8 (JW-816)
The most recently reported federal decision dis-
cussing the issue of a ban on abortions in public
facilities is peDrOdUCtiVe Health Services v. Webster, 655
F. Supp. 1300 (W.D. MO. 1987). The court invalidated
several provisions of a Missouri statute, including one
which made it unlawful
for any public facility to be used for the
purpose of performing or assisting an
abortion not necessary to save the life of
the mother or for the purpose of encouraging
or counseling a woman to have an abortion
not necessary to save her life.
655 F. Supp. at 1316, n. 47. Discounting the defendant's
reliance on earlier Supreme Court abortion funding cases,
the district court held that Poelker v. Doe, m, was
not controlling. The Missouri statute at issue in Webster
would prohibit the use of public facilities for all non-
therapeutic abortions, regardless of the patients' ability
to pay. Webster cited Wvbera II sunra, to support its
conclusion that direct funding rniy be disallowed but use
of public facilities may not be prohibited.
In our opinion, the relevant federal cases on
abortion may be summarized as follows:
1. state interference with first tri-
mester abortions is unconstitutional;
2. second trimester restrictions must be
based on an interest in the mother's health;
3. third trimester abortions of viable
fetuses may be prohibited except to protect
the life or health of the mother:
4. public funding of abortions is not
constitutionally required; and
5. public facilities may not refuse to
allow the use of their facilities for the
performance of abortions for paying
patients, if similar medical procedures are
performed there.
It is our opinion, therefore, that the AHD may not
adopt a policy that would prohibit the use of its public
hospital for the performance of nontherapeutic abortions
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Honorable Brad Wright - Page 9 (JN-816)
for paying patients. Neither state nor federal law
requires the AHD to fund nontherapeutic abortions.
SUMMARY
Absent specific legislation, the Board
of Managers of the City of Amarillo Hospital
District may generally determine which
medical services it will provide. The board
may not adopt a policy to refuse to make its
public hospital available for the perfor-
mance of nontherapeutic first and second
trimester abortions for paying patients.
Neither state nor federal law requires the
City of Amarillo Hospital District to fund
nontherapeutic abortions.
, Very/to
JIM. MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman,,Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 3874