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Texas AG Correctly Interprets State Law Regarding Prosecution of Physicians Who Perform Abortions Illegally

9th Court of Appeals Upholds Capital Murder Conviction for Deaths of Unborn Twins


Contact: Joe Pojman, Ph.D., executive director, Texas Alliance for Life, 512-477-1244, 512-736-3708 cell, joe@texasallianceforlife.org


AUSTIN, Texas, Jan. 25 /Christian Newswire/ -- Yesterday Texas Attorney General Greg Abbott issued an opinion interpreting a state law that prohibits physicians from performing abortions on minor girls without the written consent of a parent or abortions in the third trimester. Abbott's opinion says that violators should be prosecuted under the Occupations Code, which specifies jail time and loss of license for performing abortions illegally, not the Penal Code, which includes capital murder for killing an unborn child.


"We commend Attorney General Greg Abbott," said Joe Pojman, Ph.D., executive director of Texas Alliance for Life. "We strongly agree with his opinion. The intent of the Texas Legislature is to prosecute physicians under the Occupations Code, which does have very serious penalties. That is what we lobbied for, and that is what the Legislature passed in 2005."


The controversy arises because the Texas Penal Code makes killing "an unborn child at every stage of gestation from fertilization until birth" a crime of capital murder, with exceptions when the child's death is caused by the mother or a physician performing an abortion. The Legislature added that provision in 2003 under Senate Bill 319, known as the Prenatal Protection Act.


"Because of Roe v. Wade, the State of Texas cannot fully protect unborn babies and their mothers from abortion doctors. The day will come when Roe v. Wade is overturned, but that day is not yet here. In the meantime, we must faithfully interpret the laws on the books as intended by the lawmakers. When prosecutors and courts disregard legislative intent trouble begins. The Supreme Court's disregard for the intent of the framers of the Constitution gave us the tragedy of Roe v. Wade," added Pojman.


Capital Murder Conviction Upheld


BEAUMONT, Texas -- Yesterday, for the first time in Texas, a reviewing court issued an opinion regarding a murder conviction under the Prenatal Protection Act. The 9th Court of Appeals in Beaumont upheld the 2005 capital murder conviction of Gerardo Flores for killing his twin unborn baby sons at 20-21 weeks of gestation. Flores received a life sentence after he brutally stomped on his pregnant girlfriend's abdomen, causing the babies to be born dead two days later. The baby boys were named, given a funeral, and buried with headstones by the mother's family. Assistant District Attorney Art Bauereiss, who prosecuted Mr. Flores for the murders in Angelina County, wrote an extensive summary of the case.


Flores appealed his conviction saying the law was unconstitutional, and the 9th Court of Appeals in Beaumont heard oral arguments on October 12, 2006. Texas Alliance for Life filed an amicus curiae (friend-of-the-court) brief in the court, defending the law's constitutionality and pointing out that 30 other states have similar criminal laws recognizing the personhood of unborn children, none of which has been struck down.


Several people have been convicted of homicide of unborn children under the Texas law, but this is the first case to be appealed. "We are heartened that the court upheld the conviction of this brutal crime," said Dr. Pojman. "The court found that the Prenatal Protection Act rests on firm constitutional ground. Clearly, the Constitution allows Texas to recognize unborn children as persons and protect them from murderers, exactly as the Legislature intended."


In 2003, passage of the Prenatal Protection Act was Texas Alliance for Life's top legislative goal. Planned Parenthood, NARAL Pro-Choice Texas, and other abortion advocacy organizations vociferously opposed the law.


Texas Alliance for Life is a non-sectarian, non-partisan, pro-life organization of people committed to protecting innocent human lives from conception through natural death through peaceful, legal means. TAL is a statewide organization based in the Texas Capital.