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PaperclipPerfector  5mo ago (text post)   30463 thread views

Culture War Roundup for the week of November 18, 2024

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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.

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?

If the doctor had claimed that in her reasonable medical judgement, Cox was covered by the medical exception, most likely the issue of whether such judgement was reasonable would have been litigated. But you yourself MadMonzer gives the real reason for Cox's wanting an abortion here; it was the non-viability of the fetus, not the threat to the mother.

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