                        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.




                                   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    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.




                               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 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.




                                    p. 3868
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.




                                 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,        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.]




                                  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    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




                                 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    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




                                 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   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




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