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## THEA~TORNEYGENERAI. OF TEXAS

The Honorable .Ted Butler Criminal **Dietrict Attorney**  Bexar County Courthouse SanAntonio. Texas 78204 Dear Mr. Butler: August 13, 1974 Opinion No. H- 369
**Re:** Prcmsnt status of Texas lawe concerning abortion.

We have had numerous requests, bothwritten and oral, for information concerning thep,resent ~tatua ofthe Texas lawr concerntng abortion following the decisions by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S.Ct. 705 (1973) and Doe v. Bolton, 410U.S. 179, 35 L. Ed. 2d 201, 93 5. Ct, 739 (1973). Specifically you have asked us what Articles ofthe present Penal Code, relating to abortion, are nowvalid and enforceable. Further, since Roe v. Wade declared tha Texas rtatutee unconstitutional, you ask: “[W]hat guidelines and standards should nowbe used in reference to ‘abortions’ in this State? ” STATUS OF TEXAS LAW The Texas laws against abortion were f-d in Chapter 9 ofthe Penal Code, Articles 1191 to 1196. which were:

Article 1191. ‘Etany person shall designedly administer to a pregnant woman or knowingly procure to be adminirtered with her consent any drug or medicine, or shall uee towardr her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not lerr than two

p. 1723. .

Page 2 (H-369)

nor more thanfive yearrr; if it be done without her consent, the punishment ahall be doubled. By

‘abortion’ iclmeant that the life ofthe fetus or embryo shall be destroyed in thewoman’e womb or that a premature birth thereof be caured.

Article 1192. Whoever furnirhed themean, for procuring an abortion knowingthe purpore intended i6 guilty as an accomplice.

**Article 1193.**  Ifthe meane used shall fail to produce an abortion. the offendar ir neverthelerr guilty of an attempt toprocure **abortion,** provided **it** be rhown that each means were calculated to produce that result, and rhall be fined notleer t&an one hundred nor more than one thourand **dollars.**

Article 1194. Ifthe death ofthe **mother** is occarioned by an abortion koproduced or by an attempt to effect the eame it ia murder.

Article 1195. Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would **otherwise** have been born alive, rhall be confined in the penitentiary for life or for notleas thz+n

five yearr.

p. 1724Page 3 W-369)

Article 1196. Nothing in this chapter applien to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother. All ofthese, with the exception of Article 1195, **were** under attack in Roe v. Wade (410U.S. at 117). The holding in Roe v. Wade was thatArticle 1196, excepting from criminality only a lifesaving procedure onbehalf ofthe 

### mother without regard to then

state ofpregnancy andwithout recognition of **other** involved interests, violated the Due Process Clause of the Fourteenth Amendment. The Court 

### further condlrrdedthat, because Article 1196 was unconstitntional, the other abortion otatutes 

### of Texas also fell. “The exception of Art. 1196 ~cannotbe stricken separately, for 

### thenthe State is left with a statute proscribing all abortion, procedures nomatter how

### medically urgent the’case. ” (410U.S. at 166) Article ll95, prerantly.Art. 4512. 5, V. T. C.S., is laft unaffected. However,.:Art. 4512.5 is not, in truth, an abortion statute. The elements of the offense there described require thatthe child, ,“be in a state’

.‘, of being bornI’;” !‘that the ‘ hidher was in..&6..atit .of :givi@:birth :&a live child”, Hardin 106S.W. 352 (Tex.Crim., 1907) holding that theingredients 

### ofthe statute were somewhat different 

### from those ofthe abortion statute. **Article** 4512. 5is not,repealed by the 1973 Penal Code (Acts 1973, 63rd Leg., ch. 399, p. 996e, Section 3). Therefore, it continues as aprohibition of a crime of ita very precise definition. The 1973 Penal Code (Acts 1973, 

### 634 Leg., ch. 399, p. 883, Ssdtion 1) contains 

### no specific prohibition of abortion. It does, in Chapter 19, define various types of criminal homicide, but each 

### ofthem in made to involve the death of an “individual” defined in Section 

### 1.07(a)(n) to be a “human being who has been born andis alive”

. This statute has not

### yet been construed butwe doubtthat the.courtr will conetrue its provisions to appIyto anunborn fetus. Doe v. Israel, 482 F. 2d 156 (1st Cir. 1973), cert. denied, 42 U.S. L.W. 3627 (U.S. May 14, 1974); Doe v. Israel, 358 F.Supp. 1193(D.R. I. 1973); Rogers v. 

### Danforth, Civil Action No. 18360-2 (W.D. MO. May 18, 1973) (3 judge ct. ) aff?d. mom., 414 U.S. 1035, 42 U.S. L. W. 3305 (Nov. 20, ‘19731. Therefore, there presently are no effective statutes of the State of Texas against abortion, per se.

p. 1725Page 4 (H-369)

TYPES OF REGULATIONS PERMITTED UNDER SUPREME COURT, OPINION In Roe v. Wade, supra, the majority opinion concluded with this eummary:

1. A state criminal abortion statute ofthe current Texas type, that excepts from criminality only a life saving procedure onbehalf of themother, with- - out regard to pregnancy stage andwithout recognition ofthe other interests involved, is violative ofthe Due Process Clause ofthe Fourteenth Amendment. (a) For the stage prior to approximately the end ofthe first trimester, the abortion decision andits effectuation must be left tothe medical judgment ofthe pregnant woman’s attending physician. (b) For the stage subsequent to approximately the end ofthe first trimeater, the State, in promoting its interest in the health ofthe mother, may, if it chooses, regulate the abortion procedure inways that are reasonably related to maternal health. (c) For the &age subsequent to viability the State, in promoting its interest,in the potentiality of human life, may, if it chooser, regulate, and even proscribe, abortion except where it is necessary in appropriate medical judgment, for the preoervation ofthe life or health ofthe

### mother. 2. The ntatemay define the term ‘physician’, ar it has been employed in the preceding numbered paragraphs ofthis Part XI of this opinion, tomean only a physician currently licensed by the State, ad may proscribe any abortion by a person who is nota physician as so defined. (410U.S. at 164, 165)

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Onthe same day that Roe v. Wade was decided, the Supreme Court of the United States also decided Doe v. Bolton, supra, involving Georgia’s statute regulating the performance of abortions. The Gain thrust ofthe opinion in Doe v. Bolton is that a state may notimpose upon abortion burdensome regulations bearing little relationship to thepurposes ofthe act. Thus, in holding unconstitutional a requirement that abortions be performed only inhospitals accredited by the Joint Commission onAccreditation of, Hospitals, the.Court said: “It is a requirement that simply is notbaaed on differences that.are reanonably related to the purposes ofthe Act inwhich it is found

. . . . ” (410U.S. at 194) The following discussion indicates what,webelieve to be some ofthe restrictions which presently exist uponthe performance of abortion or which may be imposed byproper statutory enactment. I. Requirement thatAbortionBe Performed by a Licensed Physician Justice Douglas, in his concurring opinion in Roe v. Wade, said:

There is no doubtthatthe State may require abortions tobe performed by qualified medical personnel. The legitimate.objective ofpreoervlng themother’s health clearly supports such laws, Their impact upon thewoman’s privacy i8 minimal.. (410U.S. at 216) Since Roe v. Wade and Doe v. Bolton, convictions have been upheld for theperformance of abortions by persons not licensed to practice medicine. Mav v. State ofArkansas, 492 S.W. 2d 888 (Ark. 1973) ceit. denied, 414U.S. 1024 (1973); Suears v. State ofMississi~~i, 278 So.2d 443 (Mins. 1973); People v. Bricker, 208 N.W. 2d 172 (Mich. 1973); State v. Ingel, 308 A. 2d 223 (My.Spec.App. 1973); State v. Haren, 307 A. 2d 644 (N.J. Super. Ct., L. Div. 1973). See Justice Douglas’.comments onthe denial of certiorari in Cheanev v. Indiana,410 U.S. 911(1973). Compare, State of New Mexico v. Strance, 506 P. 2d 1217 (N.M. 1973); People v. Frey, 294 N.E. 2d 257 (Ill. 1973); State v. Hultgren, 204 N.W. 2d 197 (Minn. 1973).

p. 1727Page 6 (H-369)

Article 4510, Vernon’s Texas Civil Statutes, defines ‘those who are ,, regarded as practicing medicine within this state. Art. 4501a, V. T. C.S. defines ‘practicing medicine” in a similar manner as follows:

Any person shall be regarded as practicing medicine within the meaning of this Chapter: 1. Who shall publicly profess to be aphysician or sur,geon and shall diagnose, treat or offer to treat any disease or disorder, mental or physical, or any physical deformity 0) injury, by any system or method, or to effect cures thereof. 2. Who shall diagnose, treat or offer to treat any disekse or disorder, mental or physical, or any physical deformity or injury, by any system or ’ m&hod, oi to effect cures thereof and charge therefor. directly or indirectly, money or other compensation;

. . . Practicing medicine without a license is made a misdemeanor punishable byfine or imprisonment for not

### more thanthirty days. Articles 4498.1 and’ 4510b. V. T. C.S. Although it has been held t,hatin the delivery ofa child a.midwife i,snet,, engaged i,nthe illegal practice ofmedicine as defined by Art. 4510a, formerly Art. 714, V. T.P.C.[ Banti v. State, 289 S.W. 2d 244 (Tex. Cr. 1956). Attorney General Opinion WW-1278 (1962); compare Vlassis V. State, 286 S.W. 2d 93? (Tex. Cr., 1956); De Hay v. State, 254 S.W. 2d 513(Tax. Cr. 1952)],we believe that theperformance of an abortion presents a significantly different factual situation andwould constitute a basis for prosecution under Articles 4498.1 and4510b. It is our opinion, therefore, that despite the rulihgs in Roe v, Wade and Doe v. Bolton andthe absence ofany newly enacted statute to replace those declared unconstitutional, the lawful performance of an abortion,~ oth’er * thanone thatis self-induced, presently is limited in Texas to those performed bypersons properly licensed topractice medicine.

p. 1728Page 7 (H-369)

II. Requirement that Abortion Be Performed in a

Licensed Hospital The Georgia statute under consideration in Doe v. Bolton, supra, :equired that abortions be performed in hospitals accredited by the Joint Commission onAccreditation of Hospitals. : The Court held the requirement unconstitutional because there was no showing that only such a hospital might meet the legitimate interest0 of theState in asouring the quality 

### ofan abortion during the full term of. pregnancy. It said:

This is not to 

### maythat Georgia may not or should not, 

### from and after the end 

### of the first trimester, adopt rtandards for licensing all facilities where abortion0 may be performed uo long as those l

tandards are legitimately related to the objective the State seeks to accomplirh.

. . . We feel compelled to agree with appellants that theState must show more thanit harrin order toprove that only the full resources ofa licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests.
. . . In so holding we naturally express no.opinion on the medical judgment involved in any particular case, that is, whether the patient’s situation is such that an abortion should be performed in a hospital rather thanin oome other facility. (410U.S. at 194, 195) We interpret this language to mean that. to the extent it to shown that other noless dangerous procedures may be performed in other appropriate facilities notltcensed as hospitals, so, too, during **the** firat **trimertei,** an abortion may be performed in such appropriate facilities. Hardy v. Vuitch, 473 F. 2d 1370 (4th Cit. 1973). art. den., 414 U.S. 824 (1973). We further interpret the current case law to hold that the State may require all ouch facilities to meet certain reasonable standards and even be licenredso long aa those requirements are notmade aonlicable solely to those facilities in which abortions are performed. Se; Word v. Poelker, 42 U.S. L. W. 2448,(8th Cir. Feb. 20, 1974).

p. 1729Page 8 (H-369)

Texas does have a Texas Hospital Licensing Law (Article 4437f, V. T. C. S.)which makes it a misdemeanor punishable by fine to establish or operate a hospital without a license, defining “hospital” in rather broad terms. We are of the opinion, therefore. that, while the State may not require an abortion tobe performed solely in a licensed hospital during the first trimester, nevertheless, if it is performed in a facility which comes within the definition of “hospital” as contained in the Texas Hospital Licens,ing Law, the facility will be subject to the same regulation towhich other hospital6 are subjected. Itwould appear then thatfurther regulation in this area, insofar as the first trimester is concerned, will have to be by statute applicable to facilities generally and notjust those performing abortions. Word v. Poelker, supra. But see Friendship Medidal Center v. ChicaT Board of Health, 367 F. Supp, 594 (N.D. Ill. 1973). After the first trimester? the State may adopt regulation8 aimed specifically at facilities inwhich abortion6 may be performed. The Court, in Doe v. Bolton, said:

This is notto say that Georgia **may** not or rhould not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortion6 may be performed so long as those standards **are** legitimately related to the objective the State seeks to accomplish.

. . . (410 U.S. at 194, 195) Also see Word v. Poelker, supra. In Roe v. Wade, referring topermissible state action after the first trimester, the Court listed as areas ofpermissible regulation the facility inwhich an abortion was to be performed, “that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to thelicensing of the facility; and the like. ” (410U.S. at 163).

p. 1730Page 9 (H-369)

III. May Committee Approval Be Reauired The Georgia statute construed in Bolton required approval ofthe abortion in advance by a committee of the medical l taff ofthe hospital inwhich it 

### wae to be performed. 

### The Court’ha);d that awoman has a right to receive medical care in accordance with thejudgmat of

### a lickneed phyeician and the phyeician hae a right to adminirter ruch care unobetnxted by the imposition of euch 

### overview.

IV. Whether Concurrence of Other Physician8 May

Be Required The Georgia statute construed in BB required that thejudgment of thepatient’s physician be “reduced to writing and concurred in by at leaat two other physician8 duly licensed to

### practice medicine and surgery . . . ” (410U.S. at 203). This too, 

### was held unconlrtitutional by the Chart onthe groundi thatthejudgment ofthe attending phyeician that abortion wan necessary was rufficient. A similar rcc@irement has been held unconstitutional a? discriminating against the poor. Doe v. Rampton, 366 

### F. Supp. 189 (D.Utah, 1973). V. May a Hospital Refuse To Permit the Performance ofan Abortion In Doe v. Bolton, the rtatute rpecifically provided that nothi~ng in it should require a hospital to admit **a** patient for the purpoeee of **an** abortion. Without dircuesing the constitutionality ofthat.etatute, the Supreme Court cited it as protection to the hoepital rendering apprqval by a hospital committee unneceesary. The right ofa horpital to deny uee ofitr facilities for an abortion was directly preeented in Doe v. Bellin Memorial Hoepital, 479 F. 2d 756 (7th Cir. 1973). The plaintiff“ attending phyrician, who had determined that, in hie medical judgment, the.abortion wa8 proper, wae a member 

### ofthe staff 

### oftbe horpital. 

### However, the hoepital had rulea strictly limiting the circumstancer under which an abortion might be performed, notincluding the circumetancee ofthis cane.

p. 1731Page 10 (H-369)

The hospital was regulated by the state and had received Federal funde. Citing Roe v. Wade and Doe v. Bolton, the court. said:

The rationale ofthose cases is, however, inapplicable to private institutions. There is no constitutional objection to the deciclion by apurely private hospital thatitwill notpermit its facilitier to be used for the performance of abortions. We thinkit is also clear that if a state ir completely neutral onthe question whether private hospitals ahall perform abortions. the rtate may expressly authorize such hoapitale toanewer thatquestion 

### for’themselves. 

### (479 F. 2d at 759-760). The court found nothingin the receipt by the horpital of Federal funds to require any different conclusion. The 

### Congrerr ofthe United States in Juneof 1973 adopted 

### an amendment to the Developmentrl~.Suivicer ~a’&3 EkcilitierrConrrtructionAct (42 U.S. C., Sec. 3008-7) to provide that receipt 

### offederal funde doea notauthoriae a court or other peraoti to reb quire individuals or hospitals toperform abortiona. In Allen v. Sisters ofSt. Josephs, 361 F.Supp. 1212 (N.D. Tex., 1973), the court held that a pri+ate hoepita receiving Hill-Burton andwelfare funds W(LB

notacting under color of law andwaB not required toperform sterilizatione or abortions by 42 U.S. C., Sec. 1983. Since this case was subsequent to Rod v. Wade, it impliedly indicates that there was no state action involved; therefore the hospital wae under no conrtitutional compulsion toprovide the requested services, Hathaway v. Worchester Citv Horrnital, 475 F. 2d 701 (lat Cir., 1973) involved a decision an towhether **or** not the hospital could be compelled to allow ita ,facilitiee,to be uned for the performance of a sterilization. However, we believe ita rationale and rearoning io equally applicable to the performance of an abortion. The honpital war a municipal horpital establirhed under state law for the purporreof short term’ hoopitaliaation.

.

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The court there stated:

. . . [I]t seems clear, after Roe and% that - a fundamental intereet ie involved, requiring a compelling rationale tojustify permitting eome hospital surgical procedures and banning another involving nogreater risk or demand on staff and facilities. While Roe and Doe dealt with a

### woman’8 decision whether or not to terminate a

### particular pregnancy, a decision to terminate the possibility of any future 

### pregnancy would seem to embrace all 

### ofthe factors deemed important by ~theCourt in Roe in finding a fundamental interest, 410 U.S. - at 155, 93 S. Ct. 705, butin magnified form, particularly so in thie caee given the demonstrated danger to appellant’s life and the eight existing children. (475 F. 2d at 705) The Court heId that in the abeence of ,outrightprohiBition ofother surgical procedures of equal risk the hoepltal’s unique ban on sterilization violated the Equal Protection Clauee of the Fourteenth Amendment, The Court was careful to say that it wae not requiring maintenance of thehospital or retention ofit8 present eiae, staff, 

### ‘or facilities’

. IThe hospital was not required to perform all kinds of surgical procedures. Ithowever was constitutionally required to afford the same treatment andmedical care to pereons undergoing medically indistinguishable surgical procedures. The epecific question of abortions in public hos- ’ pitals was considered in Nyberg ty ofVirginia, 361.F.Suppr 932 v. Ci (D.Minn. 1973). wherein the court, following ay, supra, held thatthe hospital could **not** prohihit a phyeician onite rtaff from using the hoepital’e focilitiee for the performance of abortiona. Inaddition, a statute giving 

### all hoepitale permission’to refuee. toperform abortions has been held unconetitutional by 

### a three judge court. Doe v. Rampton, eupra. The available authoritiee then hold that private 

### hoepitale’ may decline to permit the performance ofabortions within 

### their facilities, butthat public horpitale may only prohibit performsnce of abortions if other similar procedures are likewiee prohibited, that is to say abortions may notbe singled out. Onthe **other** hand, 

### if the hospital specializes in one type oftreatment only then it may **refuse** to perform abortion*.

p. 1733. Page 12 (H-369)

VI. May a Physician Refuse ToPerform

anAbortion In Doe v. Bolton, the Court said:

. . . [A] physician or any other employee has the right to refrain, for moral or religious reasons from participating in the abortion procedure

. . . (410U.S. at 197, 198) In Texas the relationship ofa physician and his patient is contractual andwholly voluntary. A physician is under nolegal obligation to practice his profession or to render services to any particular perron. Childs v. Weie. 440 S.W. 2d 104 (Tex. Civ.App., Dallas, 1969, nowrit). It has been held further that a physician practicing in a public hospital nevertheless retains his identity and cannot permit the institution free use of his services as if he were an employee. Attorney General Opinion M-912 (1971); Attorney General Opinion WW-278 (1957). VII. Rights, if any. of Father ofthe Child andParents ofa Pregnant Minor In a footnote to its principle opinion in koe v. Wade (410I?;$, at‘16.5) the Supreme Court states:

Neither in this opinion nor in Doe v. Bolton

. . . do~wediscuss the father’s rights, if any exist in the conetitutimal context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes ontheir face ’ take no cogniaance of thefather. We are aware that some statutes recogniee the father under certain circumstances
. . . We need not nowdecide whether provisions of this hind are constitutional. In at l&antfour poet Roe decisions thequestion has been considered. Doe v. Bellin Memorial Gnital, supra, 1.n it was urged that the care should notbe decided because ofthe failure ofthe plaintiffs to join the putative father as a party. The court held he was nota necessary party stating that.

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Page 13 (H-369)

it could find nothingin prior decisions of the Supreme Court to suggest thatthe right ofthewoman to make the abortion decision was conditioned onthe consent of the putative father. Similarly, in Jones v. Smith, 278 So. 2d 339 (Fla. App., 1973). cert. denied, 94 S. Ct. 1486 (1974),: itwas the putative father whobrought the action to restrain the mother of his unborn child from obtaining Bn abortion. The court held thatthe decision to terminate a pregnancy was a personal decision to be made by the mother and her attending physician and that the putative father had nopart in it. Statutes which required permission ofthe father and of the parents of a pregnant minor have been held unconstitutional by two

### threejudge courts, in Doe v. Ramoton, supra. and Coe v. Gerstein, 42 U.S. L. W. 3662 (S.D. Fla. August 14, 1973), as impermissible restrictions upon the mother’s right ofprivacy as exercised in her decision concerning an abortion. In the absence of further Supreme Court pronouncement it is impossible to state categorically that legislation giving the putative father a guaranteed voice in the abortion decision would be unconstitutional butit is clear from the available authorities that such legislation would be subject to **severe** constitutional question. PROPOSED LEGISLATION * Sponsors ofpr,oposed legislation in the next regular session ofthe Legislature should be guided by the priizi#& discussed herein, together wttb such additional case authority as becomes available hereafter. We recogniae that the United States Supreme Court has notdealt with all of thepossible legal questions which can arise from specific legislative proposale. Further, we knowthatin all probability, in the nott-distant future, there will be additional legal guidance available to us dealing with some ofthe areas in which legislative interest has been expressed.

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‘Page 14 (H-369)

Therefore, we have considered it to be the better course ofaction for this office to issue letters advisory dealing with ‘specific legislative proposals in the abortion areas at a time following the convening of the 64th Legislature. Meanwhile, copies ofthis opinion are being forwarded to Honorable 0. H. “Ike” Harris andHonorable Bob Hendricks, Chairman, respectively, of theSenate Committee onJurirprudence andtheHouse Committee on Criminal Jurisprudence. for their general guidance in connection with the drafting ofany proposed legislation by their respective committees or their members. SUMMARY

1. Articles 1191, 1192, ll93, 1194and 1196, Texas ’ Penal Code, have been held unconstitutional and

### are nolonger ofany effect. Article 1195 is still a valid statute butapplies only to those eituatione inwhich the 

### victim is in the process of being born. Therefore, there are nownolaws in this State regulating abortion, per se.

2. During the first trimester of awoman’s pregnancy the decision ofwhether or notan abortion. is to be performed is a decision to be made by the pregnant woman andher physician. Existing statutes concerning the practice ofmedicine limit to liceared physicians those who may perform an abortion. To the extent that, even during the first trimester, an abortion is performed in aninstitution qualifying as a hospital under the Texas Hospital Licensing Act, .the state may regulate its facilities and eervicee. The state may require any facilities ured during such period tomeet reasonable standards and be licensed so long as such requirements are notmade applicable solely to those facilities where abortions are performed.

p, 1736Page 15 (H-369)

3. During the e’ecdndand third trimester ofthe woman’s pregnancy the State may regulate the abortion procedure and, during the third trimester, proscribe abortion except.where it ir oeceerary for the prerervation of the life or the heqlth ofthe mother. The State may adopt laws regulating those who may perform abortions andthe places where they may be performed during the eecond landthird trlrneetere. 4. Private physicians may refuse toperform abortion. Private hospitals may refuse to make their facilitier available for the performrace of abortions, **but** the state may not **restrict** abortlone bymakipg public hoepita facilities unavailable. 5. Proposed legislation must conform tothe guidelines pronounced by the United Stater Supreme Court ia Roe v. Wade and related cares. Very truly your&, ,

APPJtQVED: OHN L. HILL General of Texas

DAVID M. KENDALL, Chairman Opinion Committee

p. 1737APPROVED:

Page 15 (H-369)

3. During the second and third trimester ofthe woman’s pregnancy the State may regulate the abortion procedure and, during the third trimester, proscribe abortion exceptswhere it ir neceerary for the preservation ofthe life or the health ofthe mother. The State may adopt laws regulating those who may perform abortions andthe places where they may be performed during the second and third trimesters. 4. Private physicians may refuse to perform abortion. Private hospitals may refuse to make their facilities available for the performance of abortions, butthe state may not rertrict abortions by making public hospital facilities unavailable. .5. Proposed legislation must conform to the guidelines pronounced by the United States Supreme Court in Roe v. Wade and related cases. Very truly yours,

OHN L. HILL (4Attorney General of Texas

~f~rf!~

DAVID M. KENDALL, Chairman Opinion Committee -

p. 1737