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 nontherapeutic 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 nontherapeutic abortions. We believe such a policy violates 

the United States Constitution in certain instances. The 

AHD was created by chapter 136, Acts 1957, 55th Legislature, 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. 

p. 3866 
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 determined 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 prohibited.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. 

p. 3867 
Honorable Brad Wright - Page'3 (JM-816) 

In 1985, the state constitution was amended to 

include article IX, section 9A, which allows the legislature 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. 

U.S.'179 (1973). 

113 (1973). See also Doe v. Belton, 410 

&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. 

p. 3868 
Honorable Brad Wright - Page 4 (JM-816) 

Ten years after the w decision, the Court reaffirmed 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 Constitution. 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 

similar procedures. 

does perform other medically 

p. 3869 
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, 

, (1977) that public funding for abortions 

432 U.S. 464 

is not constitutionally 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.] 

p. 3870 
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 nontherapeutic 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 commission 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, 

MGn. 1973) 

361 

F.Supp. 932 (D. 

Cir. 1974), anneal dism,d, ;19 

aff'd, 495 F.2d 1342 (8th 

U.S. 891 (1974) [hereinafter Nvbera I]. In 1980 the city of Virginia sought 

unsuccessfully to vacate the pvbera I injunction. Nvberq 

v. Citv of . . IraIn 

462'U.S. 

ia, 667 F.2d 754 (8th Cir. 1982), ODD eal 

dism,d, 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 

that a ciiy hospital 

Court determined 

was not required a 

SDend public funds to hire doctors who would 

perform abortions otherwise 

publicly financed hI:pital 

provide 

services for 

indigent women. 

There is a fundamental difference between 

providing direct funding to effect the 

p. 3871 
. 

.., 

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. 

p. 3872 
Honorable Brad Wright - Page 8 (JW-816) 

The most recently reported federal decision discussing 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 nontherapeutic abortions, regardless of the patients' ability 

to pay. Webster cited Wvbera II sunra, to support 

conclusion that direct funding rniy be disallowed 

its 

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 trimester 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 

p. 3873 
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 performance 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