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PaperclipPerfector  5mo ago (text post)   30458 thread views

Culture War Roundup for the week of November 18, 2024

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Following up on a past comment on abortion by @naraburns: https://www.themotte.org/comment/250966?context=3#context.

ProPublica really found a fertile topic with this one and my liberal friends (i.e. all of them, I live in a major city) keep bringing them up. Most of the articles were about as bad as the one described in the above comment but they did lead me to Zurawski v. State of Texas: https://www.txcourts.gov/media/1458610/230629.pdf.

As expected, the lawyers on both sides need to deal with a judge instead of newspaper readers so the arguments are considerably more reasonable. The court ruled in favor of the state but some of the suggested changes to the law sound pretty reasonable to me? The one big change was to the heartbeat law: there are occasionally pregnancies which are "clearly" terminal but the fetus' heart is still beating. The example brought up in the case was a late-term miscarriage. There doesn't seem to be much of a point to delaying abortion in that case. Any comments from the more medically inclined members of this forum on how common and obvious such situations are?

Aside: this felt like an argument against judicial independence to me. Extreme cases of fetal demise can be complicated (right?). Ideally, the legal regime around them would be flexible and account for the individual nuances of every case. How could this be implemented in practice? Easy: by appointing a reliable third party to examine individual cases and make a reasoned determination. I.e. a judge! And we do this all the time! So, why did the Texas state legislature feel the need to enshrine such a restrictive standard (no fetal heartbeat) into the law? Obviously "politics" but the politics needs to come from somewhere and the source here i think is activist judges. Because judicial independence is just a nice way of saying that judges are out-of-control and cannot be disciplined in practice (as the ninth circuit loves to remind us). The only means of control left are occasional reversals by superior courts (which themselves aren't under legislative control) and extremely precise laws. In a hypothetical tyranny, judges could be subject to fine-grained discipline and therefore trusted with far more responsibility.

It was easy for ProPublica to find a fertile topic here since they were willing to fertilize it with bullshit themselves. Which is to say, they skirted the truth in ways which I think are properly characterized "lies", even if someone might be able to say "well, technically...". One of the clearest cases is

But Texas’ new abortion ban had just gone into effect. It required physicians to confirm the absence of a fetal heartbeat before intervening unless there was a “medical emergency,” which the law did not define.

If you check the Texas code on abortion, Chapter 171, you find

Sec. 171.002. DEFINITIONS. In this chapter: [...] (3) "Medical emergency" means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.

So how can ProPublica say the law did not define "medical emergency"? Well, "the law" in that case was Subchapter H, Section 171.201 et seq. The definition of "Medical emergency" was pre-existing in Section 171.002. Same chapter, and you can see above the definition explicitly applies to the whole chapter (including the new law). So as close to a lie as you can get without technically being an untruth.

The biggest problem with the medical exceptions is that there is no confidence among the medical community that any medical abortion won't be investigated and prosecuted. Ken Paxton has already demonstrated that he's willing to challenge a TRO and threaten hospitals with prosecution and other penalties if he doesn't think a particular abortion is covered by the exception. If option A means potential prosecution and option B means a possible hike in malpractice insurance premiums, option B wins every time. You never want to put yourself in a position where the only thing standing between you and a lengthy prison term is whether you and a tribunal have the same understanding of "imminent" or whatever. The upshot is that the only time doctors and hospitals are comfortable using the medical exception is when the woman is on her deathbed, and you end up hearing stories about bad situations that are made worse by delayed action.

The biggest problem with the medical exceptions is that there is no confidence among the medical community that any medical abortion won't be investigated and prosecuted.

That seems like a "them" problem, unless there's some actual evidence of such prosecutions.

Ken Paxton has already demonstrated that he's willing to challenge a TRO and threaten hospitals with prosecution and other penalties if he doesn't think a particular abortion is covered by the exception.

The only case of this sort I know of was the Kate Cox case, where Cox's lawyers claimed the ordinary hazards of pregnancy constituted a medical emergency. Obviously Paxton could not acquiesce to that, as it would eviscerate the law.

That’s a chilling effect for you.

Compare gattsuru’s posts on ATF ambiguity. They don’t have to shoot every dog to remind people that dog-shooting is, in fact, on the table.

Wasn’t the Kate Cox case about infertility? It used the “substantial impairment” part of the exception rather than “danger of death.” If her doctors and judge agreed on medical necessity, the law remained intact.

That’s a chilling effect for you.

No, it's a cynical invention of one. ATF has in fact shot dogs and stomped kittens. Texas has (so far as I know) not prosecuted any doctor for an abortion when the doctor said the abortion was for a medical emergency, nor have they threatened to do so.

The Supreme Court of Texas order in the Kate Cox case is here.

Only a doctor can exercise “reasonable medical judgment”1 to decide whether a pregnant woman “has a life-threatening physical condition,” making an abortion necessary to save her life or to save her from “a serious risk of substantial impairment of a major bodily function.” If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion.

In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.

Her doctor would not, when push came to shove, even assert in the court filings that Cox's abortion met the qualifications for the medical necessity exception.

A doctor says an abortion is medically necessary.

"Well, we have to have judges second-guessing those decisions, otherwise doctors would abuse the system."

A doctor won't say an abortion is medically necessary.

"Gotta defer to doctors and their medical expertise!"

  • -17

The court specifically says that the doctor did not claim that the exception applies?

That doesn’t seem like a fair interpretation of what transpired.

Is that true? From the judge’s order

Dr. Karsan…believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas’ abortion bans and laws permits an abortion in Ms. Cox’s circumstances.

This is quoting from the complaint. The Supreme Court insists that “believing the medical exception applies” isn’t good enough. It has to actually apply, and the only way to find that out is to risk going to court.

The chilling effect isn’t invented. Karsan’s employer wouldn’t let her do the procedure without a court order. She secured the order. Then Paxton unsecured it. Also, he tweeted a letter to said employer, reminding them that they were very definitely not safe from prosecution. What was she supposed to conclude?

Is that true?

I gave you the link to the Supreme Court's decision.

Supreme Court insists that “believing the medical exception applies” isn’t good enough. It has to actually apply, and the only way to find that out is to risk going to court.

No, the Supreme Court insists that the doctor make a reasonable medical judgement that the medical exception applies. The doctor did not claim this; she claimed only a good faith belief that the exception applied. The original pleading goes into great detail why the plaintiff doesn't think requiring a "reasonable medical judgement" is a good standard, but the Supreme Court did not agree. The doctor could, of course, have -- without risk to herself -- asserted a "reasonable medical judgement" in the pleading.

Do you seriously believe that the court would have ruled differently if the doctor had simply used different language in the motion? That all this case boils down to is semantics?

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Yes, we're reading the same decision.

But how is "believes in good faith, exercising her best medical judgment...that the medical exception to Texas’ abortion bans and laws permits an abortion in Ms. Cox’s circumstances" not asserting a "reasonable medical judgment"?

Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise “reasonable medical judgment,” the Legislature determined that the medical judgment involved must meet an objective standard.
...the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard.

So the state accepts that Karsan asserted her judgement in good faith, but insists that it wasn't a "reasonable medical" judgment, because it didn't meet their standard. What standard? An "objective" one. Okay, but what standard? What magic words would she have to say to clear the bar?

Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.

Checking the complaint, then, what's this?

(138) Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox.

Oh, that "good faith" only extends to a recommendation. She chickened out and wouldn't commit to--

(139) It is also Dr. Karsan’s good faith belief and medical recommendation that that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed.

So Karsan literally used all the magic words from the statute except "reasonable." This gives the state Supreme Court license to ignore her recommendation, revoke her legal protection, and send her employer a threatening letter about how she's still risking their accreditation. All while insisting that "Only a doctor can exercise 'reasonable medical judgment'."

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No, the Supreme Court insists that the doctor make a reasonable medical judgement that the medical exception applies. The doctor did not claim this; she claimed only a good faith belief that the exception applied. The original pleading goes into great detail why the plaintiff doesn't think requiring a "reasonable medical judgement" is a good standard, but the Supreme Court did not agree. The doctor could, of course, have -- without risk to herself -- asserted a "reasonable medical judgement" in the pleading.

Word games.

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