Can a Texas abortion facility give the required 24-hour informed-consent information with a prerecorded phone message or a one-way recorded call?

TX AG Opinion GA-0802: Can abortion consent information be given by a prerecorded phone message?

Plain-English summary

A Texas House committee chair asked whether an abortion facility could satisfy the state's informed-consent law by delivering the required information through a prerecorded telephone message or a one-way conference call, rather than a live conversation. The law in question, Health and Safety Code section 171.012, says an abortion requires the woman's voluntary and informed consent, and that consent is "informed" only if the physician (or the physician's agent, for some items) provides a list of disclosures, including the risks of the procedure, the probable gestational age of the unborn child, the availability of assistance and the father's support duty, and the woman's right to review state-prepared printed materials. The information in two of the subsections must be provided "orally by telephone or in person" and at least 24 hours before the abortion.

The Attorney General said the phrase "orally by telephone or in person" was ambiguous. The word "oral" means spoken or by word of mouth, which could suggest a recording counts. But the opinion concluded that reading the statute as a whole pointed the other way. If an "in person" disclosure means a live, give-and-take exchange between physician and patient, it would make little sense to treat the telephone alternative as allowing a one-way recording with no exchange at all. The more natural reading was that the Legislature intended a live conversation, whether in person or by telephone.

The opinion added a second reason. When the Legislature wants to permit prerecorded material, it knows how to say so. It expressly allowed open-meetings training to be provided on videotape or a similar medium, but it used no comparable language in section 171.012. The absence of that language suggested the Legislature did not intend to allow a prerecorded message or a one-way conference call here. So while the text was ambiguous, the Attorney General concluded it was more likely than not that a court would hold an abortion facility may not use a prerecorded message or a one-way conference call to deliver the required information.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas abortion law changed substantially in the years after 2010, through later legislation and through major shifts in federal constitutional law. The specific informed-consent procedures discussed here may have been amended or superseded. Confirm the current statutes and case law before relying on anything below.

Who this opinion affected (as of 2010)

Abortion facilities and physicians: The opinion told them that using a prerecorded telephone message or a one-way conference call to deliver the section 171.012 disclosures would likely not satisfy the law, so the safer reading was that a live telephone or in-person conversation was required.

Patients: The opinion meant the informed-consent information was, in the Attorney General's view, intended to come through a live exchange in which a patient could presumably ask questions, rather than a recording.

The Legislature: The opinion noted that the ambiguity existed because the statute did not expressly address recordings, implicitly pointing out that the Legislature could clarify the rule if it wished, as it had done in other statutes.

Common questions

What information did the law require before an abortion?
Section 171.012 required disclosures including the physician's name, the particular medical risks of the procedure (such as infection and hemorrhage and, when medically accurate, certain other risks), the probable gestational age of the unborn child, the medical risks of carrying to term, the availability of assistance and the father's support duty, and the woman's right to review state-prepared printed materials. The woman also had to certify in writing that she received the information.

Did the information have to be given a certain way and time?
Yes. The information in subsections (a)(1) and (2) had to be provided orally by telephone or in person and at least 24 hours before the abortion.

Why couldn't a recording count as "oral"?
The opinion acknowledged "oral" can mean simply spoken. But read in the context of the whole statute, the Attorney General concluded "orally by telephone or in person" more likely meant a live conversation, since an in-person disclosure implies a live exchange and the telephone option should be read the same way.

Was this a definite rule?
No. The opinion called the text ambiguous and predicted only what a court would "more likely than not" conclude. It was a forecast, not a binding decision.

Background and statutory framework

Section 171.011 of the Health and Safety Code provided that a person may not perform an abortion without the woman's voluntary and informed consent. Section 171.012 set out when consent is considered voluntary and informed, listing the disclosures the physician or the physician's agent must make, requiring the woman's written certification, and directing that the information under subsections (a)(1) and (2) be provided "(1) orally by telephone or in person; and (2) at least 24 hours before the abortion is to be performed." Section 171.014 governed the printed materials the woman had a right to review.

In interpreting the statute, the Attorney General applied standard rules of construction: the primary aim is to give effect to the Legislature's intent (State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)); every word should be given effect with none treated as surplusage where reasonably possible (Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex. 2009)); and words are examined in the context of the statute as a whole rather than in isolation (City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010)). Undefined terms are read in context and construed according to the rules of grammar and common usage (Tex. Gov't Code Ann. § 311.011(a)). The opinion consulted dictionaries to confirm the ordinary meaning of "oral" (citing CenterPoint Energy Entex v. R.R. Comm'n of Tex., 208 S.W.3d 608, 619 (Tex. App.—Austin 2006, pet. dism'd) for the practice of relying on dictionaries), then concluded that the broader statutory context favored a live conversation.

The opinion reinforced that reading with a comparison: in the open-meetings training statute, the Legislature expressly allowed training to be made available "on videotape or a functionally similar and widely available medium" (Tex. Gov't Code Ann. § 551.005(b)). The absence of similar prerecorded-material language in section 171.012 suggested the Legislature did not intend to allow a prerecorded message or one-way conference call there. On that basis the Attorney General concluded a court would more likely than not hold that an abortion facility may not use either method to furnish the required information.

Citations

Statutes:

• Tex. Health & Safety Code Ann. §§ 171.011, 171.012(a), 171.012(b), 171.014 (West Supp. 2010)
• Tex. Gov't Code Ann. § 311.011(a) (West 2005)
• Tex. Gov't Code Ann. § 551.005(b) (West Supp. 2010)

Cases:

• State v. Shumake, 199 S.W.3d 279 (Tex. 2006)
• Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009)
• City of Waco v. Kelley, 309 S.W.3d 536 (Tex. 2010)
• CenterPoint Energy Entex v. R.R. Comm'n of Tex., 208 S.W.3d 608 (Tex. App.—Austin 2006, pet. dism'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0802
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0802.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

September 24, 2010

The Honorable Frank J. Corte Jr.
Chair, Committee on Defense and Veterans' Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0802

Re: Whether an abortion facility may use either a prerecorded telephone message or a one-way conference call to furnish the information required to be provided by section 171.012 of the Health and Safety Code (RQ-0858-GA)

Dear Representative Corte:

You ask whether an abortion facility may use either a prerecorded telephone message or a one-way conference call to furnish the information required to be provided by section 171.012 of the Health and Safety Code. [Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

Section 171.011, Health and Safety Code, provides that "[a] person may not perform an abortion without the voluntary and informed consent of the woman on whom the abortion is to be performed." TEX. HEALTH & SAFETY CODE ANN. § 171.011 (West Supp. 2010). Section 171.012 directs that, "[e]xcept in the case of a medical emergency, consent to an abortion is voluntary and informed only if" certain procedures are followed. Id. § 171.012(a). The statute requires the following:

(1) the physician who is to perform the abortion or the referring physician informs the woman on whom the abortion is to be performed of:

(A) the name of the physician who will perform the abortion;

(B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:

(i) the risks of infection and hemorrhage;

(ii) the potential danger to a subsequent pregnancy and of infertility; and

(iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;

(C) the probable gestational age of the unborn child at the time the abortion is to be performed; and

(D) the medical risks associated with carrying the child to term;

(2) the physician who is to perform the abortion or the physician's agent informs the woman that:

(A) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;

(B) the father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion;

(C) public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest; and

(D) the woman has the right to review the printed materials described by Section 171.014, that those materials have been provided by the Texas Department of Health and are accessible on an Internet website sponsored by the department, and that the materials describe the unborn child and list agencies that offer alternatives to abortion;

(3) the woman certifies in writing before the abortion is performed that the information described by Subdivisions (1) and (2) has been provided to her and that she has been informed of her opportunity to review the information described by Section 171.014; and

(4) before the abortion is performed, the physician who is to perform the abortion receives a copy of the written certification required by Subdivision (3).

Id.

The information that is to be furnished "under Subsections (a)(1) and (2) must be provided: (1) orally by telephone or in person; and (2) at least 24 hours before the abortion is to be performed." Id. § 171.012(b). You ask whether section 171.012(b) permits an abortion facility to transmit the information by means of a prerecorded telephone message or by a one-way conference call. Request Letter at 1.

Your question requires that we consider the meaning of the phrase "orally by telephone or in person." Our primary aim in interpreting a statute is to give effect to the intent of the Legislature. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Courts, and by extension this office, must attempt "to give effect to all the words of a statute, treating none of its language as surplusage when reasonably possible." Phillips v. Bramlett, 288 S.W.3d 876, 880 (Tex. 2009). Moreover, we are to "examine the Legislature's words in context of the statute as a whole and not consider words or parts of the statute in isolation." City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).

No statute or judicial opinion of which we are aware has defined the phrase "orally by telephone." When statutory terms are undefined, they are to be "read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011(a) (West 2005). It has been suggested that, because the word "oral" means "spoken" or "by word of mouth," the use of a prerecorded telephone message is a permissible means of fulfilling the statutory directive of subsection 171.012(b). [Footnote 2: Texas courts rely on dictionaries to determine the meaning of terms not defined in statute. See CenterPoint Energy Entex v. R.R. Comm'n of Tex., 208 S.W.3d 608, 619 (Tex. App.—Austin 2006, pet. dism'd). Every dictionary that we have consulted construes the word "oral" in the same manner. One dictionary, for instance, defines the word to mean "by word of mouth; spoken rather than written." THE NEW OXFORD AMERICAN DICTIONARY 1203 (2001). Another dictionary also defines "oral" as "[s]poken rather than written." AMERICAN HERITAGE DICTIONARY 1236 (4th ed. 2000). A third dictionary declares that "oral" means "[s]poken or uttered; not expressed in writing." BLACK'S LAW DICTIONARY 1205 (9th ed. 2009).] This view represents one plausible construction of the statutory text, but it is not the only plausible construction. When statutory language is ambiguous, as here, we look to the context in which that language is used. Kelley, 309 S.W.3d at 542. Because the relevant language must be read in the context of the statute as a whole, the phrase "orally by telephone or in person" could, in our view, be interpreted to require a live conversation between physician and patient, whether the conversation takes place by telephone or in person. If the statute requires a live, give-and-take encounter between physician and patient when the information is imparted "in person," it makes little sense to conclude that the Legislature did not intend to require a similar arrangement when the information is given "by telephone." The result of such a construction is to preclude the use of a prerecorded telephone message or a one-way conference call as a means of fulfilling the statutory requirement that information under section 171.012 be provided "orally by telephone or in person."

Furthermore, the Legislature has demonstrated that, when it wishes to permit the use of prerecorded information, it knows how to do so. In requiring open meetings training for public officials, for example, the relevant statute provides that "[t]he attorney general shall ensure that at least one course of training approved or provided by the attorney general is available on videotape or a functionally similar and widely available medium at no cost." TEX. GOV'T CODE ANN. § 551.005(b) (West Supp. 2010) (emphasis added). The absence of similar language in subsection 171.012(b) suggests a legislative intent that an abortion facility may not use a prerecorded telephone message or a one-way conference call to furnish the information required to be provided by section 171.012 of the Health and Safety Code. If the Legislature desired that such alternatives be available, it could have easily provided for them in the statute. It failed to do so here.

While the meaning of the statutory text is ambiguous, it is more likely than not that a court would construe the phrase "orally by telephone or in person" to mean that an abortion facility may not use either a prerecorded telephone message or a one-way conference call to furnish the information required to be provided to a patient by section 171.012 of the Health and Safety Code.

SUMMARY

While the statutory text is ambiguous, a court would likely conclude that an abortion facility may not use either a prerecorded telephone message or a one-way conference call to furnish the information required to be provided to the patient by section 171.012 of the Health and Safety Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee