Does a Texas facility need a license to provide medication abortions?

Plain-English summary

A state representative asked two questions about drug-induced (medical) abortions. The first was whether a facility that performs them must have a license. The second was whether a patient must take the abortion-inducing drugs in the presence of the prescribing physician. The Attorney General consolidated the two requests and answered both.

On licensing, the opinion concluded that chapter 245 of the Health and Safety Code, the Texas Abortion Facility Reporting and Licensing Act, requires abortion facilities to be licensed unless they fall within one of the Act's express exemptions. The Act defines an "abortion facility" as a place where abortions are performed, and it defines an "abortion" as an act or procedure performed after a pregnancy has been medically verified, with the intent to terminate it. Reading the words "act" and "procedure" by their ordinary dictionary meanings, the opinion found nothing in the definition that limits an abortion to surgical means. Prescribing or providing a drug is an act or procedure, so if it is done with the required intent to terminate a medically verified pregnancy, it is an abortion under the Act, and a facility performing it must be licensed unless exempt. The opinion added an important limit: whether the prescribing or providing of any particular drug actually is an abortion depends on intent, which is a fact question outside the scope of an attorney general opinion. The Department of State Health Services, as the agency that implements the Act, makes that determination first.

On the second question, the opinion concluded that no Texas statute requires a patient to ingest abortion-inducing drugs in the presence of the prescribing physician. The representative pointed to a delegation statute in the Occupations Code and to the Health and Safety Code provision that only a physician may perform an abortion, but the opinion found that neither statute imposes any requirement on how or where the patient takes the drug. Texas law generally lets patients consume prescribed drugs away from the physician's office, and the opinion declined to read into the statutes a presence requirement the Legislature did not enact.

Currency note

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

What the opinion meant for those who asked

Representative Corte and the committee (what the opinion held): The opinion concluded that, except as expressly exempted, chapter 245 requires an abortion facility to be licensed, that prescribing or providing a drug with the requisite intent could be an "abortion" under section 245.002(1), and that no Texas statute required a patient to take abortion-inducing drugs in the physician's presence.

The Department of State Health Services (what the opinion held): The opinion stated that whether the prescribing or providing of a particular drug is an abortion is a fact question DSHS, as the agency charged with implementing the Act, makes in the first instance.

Facilities and physicians (what the opinion held): The opinion explained that a facility performing a drug-induced abortion within section 245.002(1) must be licensed unless it fits an exemption, and that nothing in the cited statutes mandated patient ingestion of the drug in the physician's presence.

Anyone asking whether a specific drug is covered (what the opinion did not decide): Because intent is a factual matter, the opinion declined to conclude as a matter of law that prescribing or providing any particular drug is an abortion.

Common questions

Does a Texas facility need a license to provide medication abortions?
The opinion concluded that, with limited exceptions, chapter 245 requires abortion facilities to be licensed, and that a drug-induced abortion can be an "abortion" under section 245.002(1), so a facility performing one can be required to hold a license.

Why did the AG say a drug-induced abortion can count as an "abortion"?
Because the statutory definition covers an "act or procedure" performed with intent to terminate a medically verified pregnancy, and reading those words by their ordinary meaning, the opinion found nothing limiting an abortion to surgical methods. Prescribing or providing a drug is an act or procedure.

Did the opinion decide that any specific drug is an abortion drug?
No. The opinion said whether the prescribing or providing of a particular drug is an abortion turns on intent, which is a fact question outside the opinion process, and is for DSHS to determine first.

Must a patient take abortion-inducing drugs in front of the doctor?
The opinion concluded no Texas statute required that. It found the delegation statute and the physician-only requirement imposed no condition on where the patient takes the drug, and that Texas law generally lets patients take prescribed drugs away from the physician's office.

Background and statutory framework

Chapter 245 of the Health and Safety Code, the Texas Abortion Facility Reporting and Licensing Act, requires abortion facilities to be licensed (with exceptions for certain hospitals, qualifying physicians' offices, and ambulatory surgical centers), imposes reporting and other requirements, and authorizes the Department of State Health Services to adopt implementing rules and minimum standards. Tex. Health & Safety Code Ann. §§ 245.001-.023 (West 2010); Tex. Health & Safety Code Ann. § 245.003(a); Tex. Health & Safety Code Ann. § 245.004(a) (West 2010); Tex. Health & Safety Code Ann. § 245.009. The Act defines an "abortion facility" as a place where abortions are performed and defines "abortion" as an act or procedure, performed after pregnancy is medically verified, intended to terminate the pregnancy, excluding birth control devices and oral contraceptives. Tex. Health & Safety Code Ann. § 245.002(2); Tex. Health & Safety Code Ann. § 245.002(1).

To read the definition, the opinion applied the rule that courts construe undefined statutory terms by their common meaning, using dictionaries and the statutory direction to read words in context and by common usage. CenterPoint Energy Entex v. R.R. Comm'n, 208 S.W.3d 608, 619 (Tex. App.-Austin 2006, pet. dism'd); Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005); Tex. Gov't Code Ann. § 311.011(a) (West 2005). It noted that the plain definition does not distinguish surgical from medical means. United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009); Ex parte Hernandez, 165 S.W.3d 760, 763 (Tex. App.-Eastland 2005, no pet.). Because prescribing or providing a drug is an act or procedure, doing so with the requisite intent makes it an abortion, so the facility must be licensed unless exempt. But the opinion held that whether a particular drug's prescribing or providing is an abortion depends on intent, a fact question it could not resolve, leaving that to DSHS in the first instance. Tex. Att'y Gen. Op. No. GA-0581 (2007); Tex. Att'y Gen. Op. No. GA-0726 (2009); Tex. Health & Safety Code Ann. § 245.005(d) (West 2010). On the ingestion question, the opinion examined the delegation statute and the physician-only requirement and found neither imposed a presence requirement on the patient, while medical-board rules generally allow patients to consume prescribed drugs away from the physician's office. Tex. Occ. Code Ann. § 157.001(a)(1) (West 2004); Tex. Health & Safety Code Ann. § 245.010(b) (West 2010); 22 Tex. Admin. Code § 169.4 (2010). It declined to impose a standard the Legislature had not enacted.

Citations

Statutes and rules:

• Tex. Health & Safety Code Ann. §§ 245.001-.023 (West 2010)
• Tex. Health & Safety Code Ann. § 245.002(1)
• Tex. Health & Safety Code Ann. § 245.002(2)
• Tex. Health & Safety Code Ann. § 245.003(a)
• Tex. Health & Safety Code Ann. § 245.004(a) (West 2010)
• Tex. Health & Safety Code Ann. § 245.005(d) (West 2010)
• Tex. Health & Safety Code Ann. § 245.009
• Tex. Health & Safety Code Ann. § 245.010(b) (West 2010)
• Tex. Occ. Code Ann. § 157.001(a)(1) (West 2004)
• Tex. Occ. Code Ann. § 157.002(a)(2) (West 2004)
• Tex. Gov't Code Ann. § 311.011(a) (West 2005)
• 22 Tex. Admin. Code § 169.4 (2010)

Cases and opinions:

• United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009)
• Ex parte Hernandez, 165 S.W.3d 760, 763 (Tex. App.-Eastland 2005, no pet.)
• CenterPoint Energy Entex v. R.R. Comm'n, 208 S.W.3d 608, 619 (Tex. App.-Austin 2006, pet. dism'd)
• Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005)
• Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 512 (6th Cir. 2006)
• Tex. Att'y Gen. Op. No. GA-0581 (2007)
• Tex. Att'y Gen. Op. No. GA-0726 (2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0803
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0803.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 24, 2010

The Honorable Frank J. Corte Jr. Opinion No. GA-0803
Chair, Committee on Defense and
Veterans' Affairs Re: Whether a facility must have a license to
Texas House of Representatives perform medical abortions, and whether drugs to
Post Office Box 2910 induce an abortion must be ingested in the presence
Austin, Texas 78768-2910 of the prescribing physician (RQ-0859-GA)

Dear Representative Corte:

You initially asked for our opinion regarding whether a facility must have a license to perform medical abortions.[1] You subsequently asked for our opinion regarding "whether drugs that are administered for the purpose of inducing an abortion must be ingested by the patient in the presence of the physician who has prescribed them for her."[2] We have consolidated your two requests and consider the questions together.

Abortion facilities in Texas are licensed and regulated under chapter 245 of the Health and Safety Code, the Texas Abortion Facility Reporting and Licensing Act (the "Act"). See generally TEX. HEALTH & SAFETY CODE ANN. §§ 245.001-.023 (West 2010); see also id. § 245.001 (setting out short title). With specified exceptions,[3] the Act requires that all abortion facilities be licensed. See id. § 245.003(a). In addition, the Act imposes reporting and other requirements on abortion facilities, and it provides methods for dealing with violations. See, e.g., id. §§ 245.011 ("Reporting Requirements; Criminal Penalty"); 245.012 ("Denial, Suspension, Probation, or Revocation of License"); 245.013 ("Injunction"); 245.014 ("Criminal Penalty"); 245.015 ("Civil Penalty"); 245.017 ("Administrative Penalty"). The Act also authorizes the Board of the Department of State Health Services[4] ("DSHS") to adopt rules to implement chapter 245 and to impose minimum standards on abortion facilities. See id. §§ 245.009 ("Adoption of Rules"), 245.010 ("Minimum Standards").

The licensing requirement of chapter 245 applies to an "abortion facility." See id. § 245.003(a). An "abortion facility" is defined as "a place where abortions are performed." Id. § 245.002(2). Thus, to address your question whether a facility must have a license, we must determine whether a medical abortion that you describe as involving the use of drugs is an "abortion" under chapter 245.

Chapter 245 defines an abortion as

an act or procedure performed after pregnancy has been medically verified and with the intent to cause the termination of a pregnancy other than for the purpose of either the birth of a live fetus or removing a dead fetus. The term does not include birth control devices or oral contraceptives.

Id. § 245.002(1). The plain language of the definition of abortion does not distinguish between the termination of a pregnancy through surgical or medical means. See id.; cf. United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009) (construing the term "employee" in statute and noting that plain language did not distinguish between "high-level" and "low-level" employees); Ex parte Hernandez, 165 S.W.3d 760, 763 (Tex. App.-Eastland 2005, no pet.) (noting language of statute did not distinguish between different kinds of pardons). The definition of abortion therefore is not limited to a particular means of accomplishing an abortion. Instead, the definition of abortion includes simply an act or procedure as specified by section 245.002(1). See TEX. HEALTH & SAFETY CODE ANN. § 245.002(1) (West 2010).

Texas courts rely on dictionaries to determine the meaning of terms not defined in statute. See CenterPoint Energy Entex v. R.R. Comm'n, 208 S.W.3d 608, 619 (Tex. App.-Austin 2006, pet. dism'd) (explaining that Texas courts may rely on commonly used dictionaries to discern the plain meaning of statutory terms) (citing Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005)). The common meaning of the term "act" is "[s]omething done or performed, esp. voluntarily; a deed." BLACK'S LAW DICTIONARY 27 (9th ed. 2009); see also TEX. GOV'T CODE ANN. § 311.011(a) (West 2005) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."); State v. West, 826 P.2d 940, 943 (Mont. 1992) (defining "act" to mean "a thing done or that which is done"). The word "procedure" is commonly defined to mean "[a] specific method or course of action." BLACK'S LAW DICTIONARY 1323 (9th ed. 2009); see United States v. Berkos, 543 F.3d 392, 398 (7th Cir. 2008); see also In re United States, 665 F. Supp. 2d 1210, 1217 (D. Or. 2009) (defining "procedure" to mean "a series of steps taken to accomplish an action" or "a specific method or course of action"). Accordingly, an abortion under chapter 245 involves a deed or something done or a specific method or course of action intended to cause the termination of a pregnancy as specified by subsection 245.002(1).

In your request letter, you generally describe a medical abortion as one caused by the use of drugs. See Oct. Request Letter at 4-5 (describing the use of drugs, primarily Mifeprex® known colloquially as "RU-486," to induce abortions). Prescribing or providing[5] a drug is a deed or something done or a specific method or course of action, and thus is an act or procedure under the common definitions of those terms. If the prescribing or providing of a drug is done with the requisite intent to terminate a pregnancy that has been medically verified, then the prescribing or providing of the drug is an abortion under chapter 245. Accordingly, unless expressly exempted, a facility performing such an act or procedure within the scope of subsection 245.002(1) is an abortion facility that must be licensed under chapter 245.

Because our analysis of this question is focused on medical abortions generally and because questions of intent involve factual considerations that fall outside the purview of an attorney general opinion, we cannot conclude as a matter of law that the prescribing or providing of any particular drug is an abortion as defined by subsection 245.002(1).[6] See Tex. Att'y Gen. Op. Nos. GA-0581 (2007) at 3 ("Whether a particular action is performed ... intentionally is a fact question."); see also GA-0726 (2009) at 3 ("We cannot find and resolve questions of fact in an attorney general opinion."). As the agency charged with implementation of the Act, DSHS may make that determination in the first instance. See TEX. HEALTH & SAFETY CODE ANN. §§ 245.005(d) (West 2010) (authorizing DSHS to issue abortion facility license), 245.009 (authorizing DSHS to adopt rules).

You also inquire whether a drug that is provided with the intent to induce an abortion must be ingested by the patient in the presence of the prescribing physician.[7] See Jan. Request Letter at 1. In averring that Texas law requires such a result, you direct us to section 157.001 of the Occupations Code and section 245.010 of the Health and Safety Code. See id. at 1-2. Section 157.001(a)(1) authorizes a physician to delegate a medical act to a qualified and properly trained person under specified conditions. TEX. OCC. CODE ANN. § 157.001(a)(1) (West 2004). One of the conditions is that the medical act is not an act in violation of any other statute. See id. § 157.001(a)(1)(C). Section 245.010(b) of the Health and Safety Code provides that only a physician may perform an abortion. TEX. HEALTH & SAFETY CODE ANN. § 245.010(b) (West 2010).

You argue that Health and Safety Code section 245.010(b) limits Occupations Code section 157.001(a)(1) and precludes a physician from delegating the performance of an abortion to another health care professional. See Jan. Request Letter at 1-2. Even assuming your construction of these two statutory provisions is in accordance with the legislative intent, neither statute imposes any requirement on the patient taking a drug provided to induce an abortion. See TEX. OCC. CODE ANN. § 157.001(a)(1) (West 2004) (providing general delegation authority to physician); TEX. HEALTH & SAFETY CODE ANN. § 245.010(b) (West 2010) (requiring abortion be performed by physician). Nothing in section 157.001(a)(1) or section 245.010(b) mandates that a patient ingest such drugs in the presence of the physician. See TEX. OCC. CODE ANN. § 157.001(a)(1) (West 2004); TEX. HEALTH & SAFETY CODE ANN. § 245.010(b) (West 2010). Rather, it appears generally that a patient may consume prescribed drugs away from the physician's office. See 22 TEX. ADMIN. CODE § 169.4 (2010) (Tex. Med. Bd., Providing, Dispensing, or Distributing Drugs) (authorizing physician to "provide, dispense, or distribute drugs for use or consumption by the patient away from the physician's office or after the conclusion of the physician-patient encounter"). Additionally, in our examination of other statutory provisions regulating the medical profession, we find no provision that requires a patient to ingest drugs in the presence of the physician. See generally TEX. OCC. CODE ANN. §§ 151.001-165.160 (West 2004 & Supp. 2010) ("Physicians" title 3, subtitle B). The Legislature could have included the requirement that a patient ingest a drug in the presence of the physician. The Legislature did not do so. The Legislature cannot expect the Attorney General to impose standards that the Legislature has failed to impose. We thus cannot conclude that a patient must ingest drugs that are provided with the intent to induce an abortion in the presence of the prescribing physician.

SUMMARY

Except as expressly exempted, chapter 245, Health and Safety Code, requires an abortion facility to be licensed. The prescribing or providing of a drug, not otherwise excluded as a birth control device or oral contraceptive, and done with the requisite intent to terminate a medically verified pregnancy, may be an abortion under section 245.002(1). Whether the prescribing or providing of a particular drug is an abortion is a fact question that must be determined by the Texas Department of State Health Services in the first instance.

Texas statutes do not require a patient to ingest drugs that are provided to the patient with the intent to induce an abortion in the presence of the prescribing physician.

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[1] Request Letter (Oct. 5, 2009) (with attachments) [hereinafter Oct. Request Letter].

[2] Request Letter (Jan. 27, 2010) [hereinafter Jan. Request Letter].

[3] The Act exempts (1) hospitals licensed under the Texas Hospital Licensing Law; (2) physicians' offices, licensed under subtitle B, title 3, Occupations Code, that perform fewer than a specified number of abortions; and (3) ambulatory surgical centers licensed under chapter 243, Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 245.004(a) (West 2010) (reflecting two different subsections (a)); see also Brief of Lisa Hernandez, General Counsel, Tex. Dep't of State Health Servs. at 1 (Nov. 20, 2009) (on file with the Opinion Committee).

[4] The "Board" referred to is the former Texas Board of Health, now the Texas Department of State Health Services. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.09, 1.19, 1.26, 2003 Tex. Gen. Laws 611, 618-23, 636-37, 641, 729.

[5] "'Provision' means the supply of one or more unit doses of a drug, medicine, or dangerous drug." TEX. OCC. CODE ANN. § 157.002(a)(2) (West 2004); see also 22 TEX. ADMIN. CODE § 169.2(8) (2010) (Tex. Med. Bd., Definitions) (defining "provision").

[6] Our research indicates that drugs commonly used to induce an abortion may have medical uses other than the termination of a pregnancy. For instance, the drug methotrexate, a drug sometimes used in combination with another drug to induce an abortion, is also used in the treatment of cancer. See Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 512 (6th Cir. 2006) (discussing doctor's testimony regarding abortifacient uses of methotrexate as well as its use as a cancer agent).

[7] In your requests, you include material related to a specific protocol of use for a particular drug. See Oct. Request Letter (attached materials pertaining to Mifeprex®); Jan. Request Letter at 1 (referring to previously submitted materials pertaining to Mifeprex®). You aver that the protocol requires the drug to be ingested by the patient in the presence of the physician. See Oct. Request Letter at 4-5. The protocol merely requires that the drug be taken by the patient in the doctor's office, not in the physical presence of the physician. See id. (attached Patient Agreement with respect to the use of Mifeprex® (mifepristone) requiring patient to agree to "take Mifeprex in my provider's office").