Post-Roe Texas: Unanticipated Effects of the Human Life Protection Act of 2021

Last summer the Supreme Court overturned Roe v. Wade, the landmark ruling that established the constitutional right to abortion. On August 25, 2022, Texas’ Human Life Protection Act of 2021 (“HLPA” or the “Act”), colloquially called a “trigger-law,” went into effect prohibiting abortion in the state.

Since then, Texas physicians have expressed concern regarding unanswered questions about how the new law affects the medical practice. While the media has focused attention on navigating medical nuances under statutory bans, how the abortion statute interacts with other Texas laws has received far less attention and presents additional gray areas about a physician’s civil liability.

What does the Human Life Protection Act of 2021 Actually Say?

Pursuant to the HLPA, abortions are prohibited unless the pregnancy creates a risk of death or poses a serious risk of substantial impairment of a major bodily function. Tex. Health & Safety Code § 170A.002. However, even in such circumstances, the medical provider must provide the best opportunity for the fetus to survive unless it would pose an even greater risk to the patient of death or substantial impairment of a major bodily function.

Anyone who provides an abortion absent the narrow exception above is subject to criminal liability (felony in the second degree) and a civil penalty. Tex. Health & Safety Code § 170A.004-005. Physicians have an additional penalty—mandatory revocation of their medical license. Tex. Health & Safety Code § 170A.007.

In addition to altering the practice of medicine, the Act may have unexpected effects beyond the conduct identified in the statute and could potentially impact individual civil actions against physicians.

Can a Physician Now Be Held Civilly Liable for the Death of a Fetus in Utero?

While the HLPA provides a carveout for medical treatment that results in the accidental or unintentional death of an unborn child, it only exempts the physician from criminal and civil liability under the Act. Tex. Health & Safety Code § 170A.002(d). The Act specifically preserves other remedies available in a civil suit. Tex. Health & Safety Code § 170A.006. Nothing in the Act precludes a medical malpractice suit against a physician—which is precisely where the Act creates uncertainty.

Brief History on Texas Wrongful Death Evolution

Before 2003, Texas Supreme Court precedent did not permit recovery for the wrongful death of a fetus; instead, the court required that the child be born alive. Witty v. American General Capital Distributors, 727 S.W.2d 503 (Tex. 1987). The courts reasoned so because of the common-law rule that legal rights were contingent on live birth. When the Texas Wrongful Death Act was amended in 2003, the Legislature included the unborn at every stage of gestation from fertilization until birth in the statutory definitions. Tex. Civ. Prac. & Rem. Code § 71.001(3)-(4). The amendments also added language precluding recovery against a physician “if the death is the intended result of a lawful medical procedure” or “if the death directly or indirectly is caused by … or relates to a lawful medical health care practice or procedure.” Id. at § 71.003(c)(2), (4); Fort Worth Osteopathic Hospital v. Reese, 148 S.W.3d 94, 97 (Tex. 2004) (applying prior version of wrongful death statute but recognizing the 2003 amendments).

Neither the Texas Supreme Court nor the appellate courts have addressed this issue since Reese was decided in 2004. Nor have the courts interpreted the language within wrongful death statute to account for changes in Texas’ abortion laws.

Now, the HLPA may provide a new opportunity for the courts to revisit the analysis surrounding the availability of malpractice-based wrongful death claims for the death of a fetus in utero. And the Act may provide a new basis to argue that cause of action is now permitted.

The HLPA defines an “unborn child” as “an individual living member of the homo sapiens species from fertilization through birth, including the entire embryonic and fetal stages of development.” Tex. Health & Safety Code § 170A.001(5) (emphasis added). Similar to the wrongful death statute, the Act considers an embryo “living” upon fertilization and throughout fetal development. Without debating the paradox of whether an embryo/fetus can be alive prior to birth, this definition creates more questions than answers about whether a physician could be found liable for wrongful death.

As mentioned above, the HLPA protects physicians from liability under the Act for medical treatment that accidentally or unintentionally causes the death of the unborn child. Tex. Health & Safety Code § 170A.002(d). Likewise, the wrongful death statute precludes recovery when the physician’s medical practice or procedure is lawful. Tex. Civ. Prac. & Rem. Code § 71.003(c)(2), (4). While the wrongful death statute clearly addresses liability issues when abortion procedures were lawful under Roe, such procedures are no longer lawful in Texas. Taken together, liability seems to hinge on the physician’s intent. Ultimately, did the physician intend to terminate the pregnancy, or was the fetal demise the result of an unintended or unforeseen event?

Can a Physician be Liable for Wrongful Death After Performing an Abortion Later Determined To Be Unlawful Under the Act?

What about a scenario where a physician performs an abortion under the Act’s limited exception, and the procedure is later determined unlawful under the Act—can the patient then sue the physician for wrongful death? Reese suggests this might be the case: “The parties do not contend that this case involved anything other than a lawful medical procedure, so this case would not be covered even if the new statute were applicable.” Reese, 148 S.W.3d at 97. And while the patient’s informed consent typically constitutes an affirmative defense for the physician under the wrongful death statute, that exception no longer applies because abortion is unlawful. See Civ. Prac. & Rem. Code § 71.003(c)(2).

The juxtaposition now that the HLPA is in effect is that physicians cannot currently be held liable for the wrongful death of a stillborn fetus caused directly or indirectly by medical treatment but can be held liable under the HLPA for performing an unlawful abortion. Removing the animosity of the subject, abortion is ultimately the death of a fetus caused directly or indirectly by medical treatment—exactly the conduct physicians cannot be liable for under Texas’ wrongful death statute. However, the HPLA now creates a wrinkle between the Act and how Texas courts have historically applied the wrongful death statute.

This juxtaposition seems to be resolved by focusing on the intent of the physician. When an abortion is performed in Texas, death is the intended result of an unlawful medical procedure. See Civ. Prac. & Rem. Code § 71.003(c)(2). The wrongful death statute therefore does not preclude recovery from the physician who performs an abortion.

Imagining a scenario where this might come up is not difficult. For instance, the first wrongful death case against non-physicians who assisted a Texas woman in procuring abortion pills was filed on March 10. Pl. Orig. Pet., Marcus Silva v. Jackie Noyola et al., No. 23-CV-0375 (56th Dist. Ct. Galveston Cty., Tex.). The ex-husband did not know about his then wife’s pregnancy and sued the three women who aided his ex-wife in terminating the pregnancy for wrongful death of the unborn child. Based on these facts, a father could sue for wrongful death a physician that performed an abortion on the basis that such abortion was unlawful and caused the wrongful death of the unborn child. How a court would interpret the HPLA in connection with the wrongful death statute is unpredictable. But given the state’s desire to protect the unborn, courts may very well allow these types of claims to proceed against physicians who perform abortions.

Does the HPLA Provide a Basis To Claim Wrongful Death For Negligence?

The simple retort is that even if the Act considers a fetus “living” prior to birth and creates liability for physicians that perform abortions, the Legislature did not intend to alter the scope of conduct that constitutes medical malpractice. Rather, the Legislature specified a specific medical procedure—abortion—that is unlawful absent risk of death or substantial impairment. The fact that a physician performs a procedure on a patient that directly or indirectly causes the death of a fetus that the physician did not intend to cause cannot create liability on behalf of the physician. This seems to be the reasoning behind the Legislature including protection for physicians in both the HLPA and wrongful death statute—and if the Legislature wanted to alter physicians’ liability for malpractice, it would have done so.

Conclusion

As Texas approaches 200 days since its ban went into effect, there is still much unknown about how the Act will affect civil proceedings. Roe v. Wade was precedent for decades, and the Supreme Court’s choice to overturn its decision has upended the medical practice. With the introduction of Texas’ Human Life Protection Act, physicians in Texas have rightfully raised concerns about the practice of medicine. However, the reverb effects of the Act have so far fallen to the wayside.

As the new legal landscape settles in, how Texas’ trigger-ban interacts with other Texas laws, but especially the wrongful death statute, will receive more and more attention by the courts. The courts will certainly be presented the opportunity to resolve the gray areas that have been created by the Supreme Court’s upheaval of the constitutional right to an abortion that started in Dallas 50 years ago.

Republished with permission. This article, "Post-Roe Texas: Unanticipated Effects of the Human Life Protection Act of 2021," was published in Texas Lawyer on June 7, 2023.