October27,1987

Honorable Brad Wright Opinion No. Jh-816 Chairman Public Health Committee Re: Whether ahospital Texas House ofRepresentatives district isrequired to P. 0. Box 2910 make its facilities Austin, Texas 78769 available for nontherapeutic abortions

Dear Representative Wright:

you askwhether the board ofmanagers of the City of Amarillo Hospital District (AHD) may adopt apolicy of refusing to make its facilities available for nontherapeutic abortions. Webelieve such a policy violates the United States Constitution incertain 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 "tobe coextensive withy and have the
same boundaries as the incorporated city ofAmarillo as such boundaries now exist oras 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 ahospital or hospital system for indigent and needy persons. . . .I' Acts 1957, 55th Leg., ch. 136, 51, at 298. Various

1. Aproposed amendment toarticle 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 ofthe AHD to include certain residents of Randall County and topermit Randall County to provide financial assistance to the district.

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provisions of the act provide 

### for a Board of Hospital Managers tobe appointed by the governing body of the city ofAmarillo; for the board tocontract 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 ofthe hospital: and for the transfer ofownership tothe AHD 

### of lands, buildings, and equipment that issituated inthe district that was owned by the city of Amarillo or Potter County and used to furnish medical services orhospital care to indigents or needy persons bythose two entities. L at 854, 5.

The enabling statute was amended by chapter 439, Acts ofthe 64th Legislature, Regular Session, 1975 to allow the city governing body and the board to fix and collect charges for the occupancy and use ofany of the hospital facilities and services inthe amount andmanner determined by the board. See Acts 1975, 64th Leg., ch. 439, §3A(g), at 1170. 1179-80. The hospital administrator determines apatient's ability' topay for services. & Acts 1957, 55th Leg., ch. 136, 514, at 298, 304.

You tell us that the AHD operates Northwest Texas Hospital, ageneral public hospital. It is inthe public hospital that nontherapeutic abortions would be prohibited.2 Generally, ahospital district's power and any limitations onthe exercise ofthat power are found inthe constitution and the hospital district's enabling statute. Attorney General Opinion M-171 (1967). Special purpose districts have only the authority which isclearly granted by the legislature. Tri-Citv Fresh Water SUDD~Y District No. 2 ofHarris Countv v.Mann, 142 S.W.Zd 945 (Tex. 1940). See Attorney General Opinion Nos. JM-258, JM-257 (1984).

2. The discussion inthis opinion islimited to first and second trimester abortions. House Bill No. 410 enacted bythe 70th Legislature took effect on September 1,1987. The bill prohibits the abortion 

## ofa viable fetus during the third trimester except toprevent the death or serious impairment ofphysical or mental health of themother orbecause the fetus has been diagnosed as having asevere, irreversible abnormality. e Acts 1987, 70th Leg., ch. 469, at 4100.

p.3867Honorable 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 isrequired toprovide. 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) ofthe act.

Section 11.02 of the Indigent Health Care Act provides:

Ahospital 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 themedical services tobeprovided. Both provisions speak ingeneral terms about the provision of medical aid and hospital
care. Therefore, absent subsequent legislative enactment,
ahospital district may generally determine which services itwill provide.

On the issue ofabortion, however, the AHD must be guided by federal law. The United States Supreme Court invalidated the Texas laws concerning abortion in Roe v. Wade 410U.S. U.S.'179 (1973).113 (1973). See also Doev. Belton, 410 &g established that the constitutional right ofprivacy encompasses awoman's decision whether or not to terminate her pregnancy. See id. at 153. A state must demonstrate acompelling 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 isnot 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 themother's health. Id. at 163. The state's compelling interest in protecting potential life was found to exist from the point of viability ofthe fetus. Id. This interest, according toRoe, allows the state to proscribe abortion during the third trimester, except when it isnecessary to preserve the life 

### orhealth ofthemother. **Id. at**  **164.**

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Ten years after the w decision, the Court reaffirmed its rule ofnon-interference by the state inthe first trimester abortion decision and the requirement ofa compelling state interest for restricting or prohibiting abortions at later stages ofpregnancy. Citv ofAkron v. Akron Center forRenroductive Health. Inc., 462 U.S. 416 (1983). Speaking for themajority, Justice Powell wrote:

These cases come tous adecade after we held inRoe 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 uson several occasions, and again today, todefine the limits of aState's authority to regulate the performance ofabortions. And arguments continue to **be**made, inthese cases aswell, that we e,rredin interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive onaconstitutional question, is
adoctrine that demands respect inasociety 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 inthat 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 onthis issue **and** concluded that public hospitals may not refuse to perform abortions unless other similar medical procedures are likewise prohibited.3

3. For purposes ofthis 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 apublic hospital's refusal to provide a nontherapeutic abortion to an indigent patient in Poe ke 1 rv. Doe, 432U.S. 519, reh'cr denied, 434 U.S. 8~80 (1977): Poelker reiterated the Supreme Court‘s position inWah r v. Roe,

,(1977) that public funding for abortions 432U.S. 464 isnot constitutionally required. The Supreme 'Court has not ruled directly onthe question ofapublic hospital's refusal to provide nontherapeutic abortions to paying patients. However, there have been cases inother 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, 420U.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 inRoe v.Wade and Doe v. Bolton." Doe, 500 F.2d at 147.

Wolfe v. Schroerinq, 541 F.2d 523 (6thCir. 1976) held unconstitutional aKentucky institutional conscience clause statute asapplied topublic hospitals.

However, the conscience clause cannot constitutionally permit 'public' hospitals ('state actors'), to refuse topermit 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 toprotect 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 bypermitting 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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541 F.2d at 527. Asimilar conscience clause was stricken inMinnesota insofar as itapplied to public facil,ities. Hodason v. Lawson, 542 F.2d 1350 (8thCir. 1976).

InDoe v. Charleston Area Medical Center. Inc., 529 F.2d 638 (4thCir. 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 inorder to comply with a West Virginia criminal abortion statute.

InAugust, 1973, seven months after Roe v. Wade,
an sunra, injunction was obtained in federal district court inMinnesota to compel a municipal hospital commission to provide its facilities for the performance of abortions and toallow physicians to perform abortions at their discretion inaccordance with Roe v.Wade and Doev. Bolton. The hospital had adopted aresolution 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, ;19aff'd, 495 F.2d 1342 (8th U.S. 891 (1974) [hereinafter Nvbera I]. In 1980 the city ofVirginia sought unsuccessfully tovacate 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 onMaher v.Roe, sunra, Poelker v. Doe, w, and other Supreme Court decisions issued subsequent to Nvbera Iinseeking relief from the seven year injunction. The Nvbera II court refused to vacate the injunction, reasoning that the cases relied ondealt with the issue of abortion funding. The hospital resolution found constitutionally offensive in Nvbera I applied to indigents and nonindigents alike. Nvbera IIdistinguished the Nvbera Irequirement that apublic hospital make its facilities available for the performance of abortions by staff physicians from the cases in which the availability ofdirect public expenditures was at issue.

InPoelker the Supreme that a ciiy hospital Court determined
was not required a SDend public funds tohire doctors who would perform abortions otherwise publicly financed hI:pital provide services for indigent women.

There isafundamental 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 istrue public money may have been used to build the hospital, that capital expenditure
was toprovide facilities for alarge number of operations, of which first trimester abortions was but one. The decision that a city must allow staff physicians to perform abortions atthe 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 ofa hospital's policy toprohibit elective abortions inGreco
v. Oranae Memorial HOSDital CorDoration, 513 F.2d 873 (5th Cir.), cert. denied 423U.S. 1000 (1975). The Greco court determined that the hospital was private, that there
was no state action involved inthe abortion policy, and that the circumstances did notwarrant ,,imposition of constitutional restrictions upon Orange Memorial Hospital.,, 513 F.2d at 882. The appellate panel did not expressly state that adifferent 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 inthe district courtrs ruling on this matter. Greco v. Oranae memorial HOSDital COrDoratiOn, 374 F.Supp. 227 (E.D. Tex. 1974). Judge Steger, indismissing the complaint, wrote:

Therefore, this Court is inaccord with the reasoning of recent decisions that a private hospital, whether denominational or not, isfree todecide 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 ifithad the available space and personnel and performed other surgical procedures involving nogreater risk to the patient.

374 F.Supp. at 233.

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Themost 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 aMissouri statute, including one which made itunlawful

for any public facility tobeused for the purpose of performing or assisting an abortion not necessary to save the life of themother or for the purpose ofencouraging
orcounseling 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 inWebster would prohibit the use ofpublic facilities for all nontherapeutic abortions, regardless ofthe patients' ability topay. Webster cited Wvbera II sunra, to support conclusion that direct funding rniybe disallowed its but use ofpublic facilities may notbeprohibited.

In our opinion, the relevant federal cases on abortion may be summarized as follows:

1. state interference with first trimester abortions isunconstitutional;

2. second **trimester** restrictions must be based onan interest inthemother's health;

3. third trimester abortions of viable fetuses may beprohibited except to protect the life orhealth **of** themother:

4. public funding ofabortions is not constitutionally required; and

5. public facilities may not refuse to allow the use oftheir facilities for the performance of abortions for paying patients, ifsimilar medical procedures are performed there.

It isour opinion, therefore, that the AHD may not adopt apolicy that would prohibit the use of its public hospital for the performance ofnontherapeutic abortions

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for paying patients. Neither state nor federal law requires the AHD to fund nontherapeutic abortions.

SUMMARY

Absent specific legislation, the Board ofManagers ofthe City ofAmarillo Hospital District may generally determine which medical services itwill provide. The board may not adopt apolicy to refuse tomake 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 ofAmarillo Hospital District to fund nontherapeutic abortions.
Very/to ,

JIM. MATTOX Attorney General ofTexas

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

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