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Texas has an anti-abortion law, Health and Safety Code 245 which states:

the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:

(A) save the life or preserve the health of an unborn child;

(B) remove a dead, unborn child whose death was caused by spontaneous abortion; or

(C) remove an ectopic pregnancy.

(emphasis added).

It explicitly references a woman who is known to be pregnant. Can a trans man therefore get an abortion in Texas by reason that he is not within the definition of 'woman' as it would be understood in this statute?

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    – Dale M
    Commented Nov 15, 2022 at 23:47

6 Answers 6

33

Ever changing ordinary definitions do not change what the law makers meant

The cited piece of law dates back to 1989. At that time, it was virtually inconceivable that "woman" could ordinarily mean anything other than a biological female person potentially capable of becoming pregnant and giving birth.

Times change, so do ordinary definitions. But these do not automatically make their way into the laws that were written before the change occurred.

he is not within the definition of 'woman' as it would be understood in this statute?

So, the definition as it will be applied is the one from 1989.

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    – Dale M
    Commented Nov 16, 2022 at 20:16
24

If we were to interpret this law as allowing some people to get an abortion but not others, it would likely be unconstitutional, as it would violate equal protection. When given a choice between interpreting a law in a way that would make it unconstitutional and a way that would not, courts generally choose the way that would not, rather than throwing out the entire law. Since there is a reasonable interpretation which does not run into this problem, I think the Texas courts would choose that interpretation.

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12

No

Under Texas court rules, "the masculine, feminine, or neuter gender shall each include the other" - woman means man and vice-versa.

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10

There is no general law defining "man" or "woman" in Texas law (a recent proposal to do so for school sports participation died), nor "male" / "female". The abortion law does not define the term, nor does the Health and Safety Code. So we have to rely on whatever court precedent exists. In Littleton v. Prange, the central legal question is determination of sex (relevant to the question whether two people were legally married), and as the opinion states, "It would be intellectually possible for this court to write a protocol for when transsexuals would be recognized as having successfully changed their sex". After some vacillation as to whether they would actually decide the matter, the court states that "Christie was created and born a male. Her original birth certificate, an official document of Texas, clearly so states", leading us to the next step in the process which is that Christie amended the sex on the birth certificate to "correct an error". The court, however concludes that

The facts contained in the original birth certificate were true and accurate, and the words contained in the amended certificate are not binding on this court.

The one notable gap in the legal reasoning is that Texas marriage law was not (as far as I can determine) based on the "sex as noted on a birth certificate".

The Texas law on abortion is not stated in terms of being a woman or female "as noted on the birth certificate", so whatever precedential value there is in Littleton, it is slight when applied to the abortion law. This would be a case of first impression.

It is possible by court order to change the gender marker on a birth certificate, but no law compels a judge to issue such an order for a transgender person. Since the law does not definitively support a transgender person's right to abortion and since the legislative intent of the law against abortion is to prevent abortion and not to restrict the right to abortion to just males, the most likely outcome in Texas if such a case arises is that both men and women are prohibited from having an abortion.

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    – feetwet
    Commented Nov 17, 2022 at 17:33
6

This law concerns the licensing of abortion facilities. The only crime established under this definition of abortion is a misdemeanor, and the elements of the crime are:

Except as provided by Section 245.004, a person may not establish or operate an abortion facility in this state without an appropriate license issued under this chapter.

So the trivial answer to this question is "no, because this definition is not relevant to a person seeking an abortion." It might allow people to open clinics that terminate pregnancies of trans men, but I doubt that would succeed.


As to criminal prohibitions relating to the act of abortion itself, there does not seem to be a definition of abortion in the penal code, but rather there are various things such as a definition of "individual" that includes "unborn child." Still, there is gender-specific language such as (22.12):

This chapter does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is: (1) committed by the mother of the unborn child; ...

I have no trouble believing that any court will easily find either that the person bearing the child is necessarily female or that it doesn't matter whether the person is female. Among other things, the Texas penal code includes this (1.05)

(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

(b) Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015, and 311.021 through 311.032 of Chapter 311, Government Code (Code Construction Act), apply to the construction of this code.

And, whaddya know, 311.012(c) says "Words of one gender include the other genders." There is no reason to think that prosector or judge would interpret a provision intended to protect the life of an "unborn child" so as to render its effectiveness dependent on the gender of the person bearing the child.

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4

A person's biological sex is different than their chosen gender. Reference this article for a more complete understanding: https://www.medicalnewstoday.com/articles/232363

Since it may be fairly presumed to be physically impossible for anyone other than a biological woman with a uterus to be pregnant, (based on statistical probability and millennia of observation...) such a person's decision to self-identify as a man only affects their gender, not their sex.

Therefore the law may be presumed to be written to cover biological women, (sex) and not those who choose to self-identify as either a man, or a woman, or _____. (the intent is not to discriminate against women, but to prevent abortion)

It would be extremely impractical, and rapidly out of date to attempt to individually list each of the ever expanding list of possible genders as described in a couple sources here:

https://www.medicinenet.com/what_are_the_72_other_genders/article.htm

https://www.dailymail.co.uk/health/article-11439455/San-Franciscos-trans-benefits-application-gender-pronoun-options.html?fbclid=IwAR3BAsxxHZ_PksX2tLh7yNkosTvzmvThZyN3AZpJDuEwmhXzz80qX0zkWCQ

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    Commented Nov 17, 2022 at 11:20

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