Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 24, 2010

The Honorable Frank J. Corte Jr. Opinion No. GA-0802
Chair, Committee on Defense and
Veterans' Affairs Re: Whether an abortion facility may use either a
Texas House of Representatives prerecorded telephone message or a one-way
Post Office Box 2910 conference call to furnish the information required
Austin, Texas 78768-2910 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.!

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;

IRequest Letter at l(available at http://www.texasattomeygeneral.gov).
The Honorable Frank J. Corte Jr. - Page 2 (GA-0802)

(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 ofthe written certification required by Subdivision (3).

Id.
The Honorable Frank I. Corte Ir. - Page 3 (GA-0802)

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 ofgrannnar and common usage." TEx. GOV'TCODEANN. § 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 171.0 12(b).2 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. Kelly, 309 S. W. 3 d 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 "[tJhe attorney general shall ensure that
at least one course of training approved or provided by the attorney general is available on

'Texas courts rely on dictionaries to detennine the meaning oftenns not dermed in statnte. 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 ofmouth; spoken rather than written." THE NEW OXFORD AMERICAN DICTIONARY 1203 (2001). Another
dictionary also dermes "oral" as "[s]poken rather than written." AMERICAN HERlTAGE DICTIONARY 1236 (4th ed. 2000).
A third dictionary declares that "oral" means "[ s]poken or uttered; not expressed in writing." BLACK'sLAWDICTIONARY
1205 (9th ed. 2009).
The Honorable Frank J. Corte Jr. - Page 4 (GA-0802)

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 171.0 12(b) suggests a legislative intentthat 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.
The Honorable Frank J. Corte Jr. - Page 5 (GA-0802)

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.

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