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In a first-of-its-kind suit that challenged what type of identification abortion clinics can accept as proof of a client’s age, a jury in the 11th State District Civil Court in Houston returned a defense verdict and awarded zero damages to a teenager who used a grocery store ID card with false information on it to obtain an abortion. In the petition in Cherise Mosley and Fredrick Mosley v. Douglas A. Karpen, D.O., and Aaron Family Planning Clinics Inc. aka Aaron Women’s Medical Center, filed on Sept. 13, 2002, brought by Mosley and her father, the two plaintiffs alleged that the doctor who performed the abortion and his clinic were negligent and violated �33.002 of the Texas Family Code by accepting the grocery card as proof Hughes was old enough to have the abortion without parental consent. The Legislature adopted �33.002 of the Family Code in 1999. It requires physicians intending to perform an abortion on a girl under age 18 to give 48 hours’ notice of that intent to the girl’s parents or guardians, unless the physician determines that immediately performing an abortion is necessary to prevent severe injury or disability to the girl. A minor also can obtain an abortion without informing her parents by taking the matter to a state district judge for approval, according to the law. Plaintiffs’ attorney Jared Woodfill, managing partner of Woodfill & Pressler in Houston, told jurors during his opening statement and closing argument that the card was scant proof that the then-17-year-old Cherise Mosley — who now is 21 and married — was old enough to get an abortion. Woodfill noted that information on the card states it can’t even be used as proof of identity for check-cashing. When filling out the form for the card, Mosley Hughes claimed to be 18. Woodfill built much of his opening statement on the alleged improper use of the grocery card as proof of the teen’s age, and ultimately boiled his argument down to six words he repeated like a mantra: “This is not a government document. “This was an ID that had bells and whistles all over it saying it was anything but legitimate” as a document proving Mosley Hughes’ age, Woodfill said during his opening statement to the eight men and four women jurors. During her opening statement and closing argument, defense attorney Barbara Hachenburg, managing partner of the Houston office of Germer Gertz, representing Dr. Douglas A. Karpen and his Houston-based Aaron Family Planning Clinic, told jurors that at the time the clinic did not require patients to provide a valid Texas driver’s license or other form of governmental identification to prove that a prospective patient was 18 or older. That’s because, Hachenburg said, �33.002 of the Texas Family Code, which contains the rules for notifying parents of would-be abortion patients who are underage, does not spell out what constitutes a valid form of identification. Both sides agree on the basic facts of the case. Mosley Hughes was seven weeks shy of her 18th birthday when she went to the clinic, seeking to abort her pregnancy. The receptionist told her she would have to provide identification showing she was at least 18. Mosley went to a nearby Fiesta grocery store and had a photo identification card made and gave the store a false age when filling out the form. The clinic accepted the identification and performed the procedure. The girl’s parents learned about it when her stepmother found the receipt for the procedure in the girl’s purse, Hachenburg said during her opening statement. However, at issue in the case was what constitutes an acceptable form of identification that a doctor can accept before performing an abortion. The jury found Mosley Hughes 90 percent responsible for the occurrence and Karpen 10 percent responsible. Hachenburg also argued during her opening statement and closing argument that the clinic would have followed standard state identification requirements if the girl had identified herself as a minor. In fact, Hachenburg pointed out that while state law requires clinics to notify parents or guardians of clients under the age of 18, Aaron Family Planning Clinic had a more stringent policy requiring actual parental consent for a minor seeking an abortion. “She perpetrated a fraud on this doctor and this clinic,” Hachenburg said. The trial lasted three days; jurors deliberated for more than three hours before returning a defense verdict on April 14. But attorneys on both sides claim victory. “I think the next time Dr. Karpen takes an ID, he’s going to be very careful about what he takes,” Woodfill said. Although he would have preferred a monetary award of damages for his clients, plaintiffs’ lawyer Woodfill says he does not anticipate appealing the decision. Hachenburg says the verdict was fraught with messages to doctors, lawyers and potential plaintiffs. “It’s a great day for women and a woman’s right to choose, it’s a great day for doctors, so they do not have to get in the business of also becoming investigators, but it’s also a great day for honest people in the state of Texas,” she says. “You cannot deceive people and then profit from it. “ In January, the Texas Department of Health established more specific guidelines about the types of identification abortion clinics can accept, Hachenburg and Woodfill say. Among other things, the guidelines call for would-be patients to sign an affidavit stating they are 18 or older if they do not have some form of photo identification. “That rule is actually less strict than what the plaintiffs were calling for in this case,” Hachenburg says. Woodfill, however, says any such affidavit would have to be notarized, requiring the person making a statement to provide a valid government-issued form of identification to the notary.

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