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Notes -
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.
The relevant standards under current Texas law are here: https://www.tmb.state.tx.us/dl/1C5CBA1C-052B-403F-A0D1-FAF22ADD05CB
They were updated to respond to cases like this. That seems like relevant information.
It is worth noting that under these standards the loss of a limb does not constitute a medical emergency. The definition of "abortion" is strict so doctors who X-ray a pregnant woman with a broken leg are safe despite the risk to the fetus, but I can see why this sort of thing does not engender trust between the medical profession and the Texas authorities. [With this definition of "medical emergency" and fetuses entitled to 14th amendment protection as people, it arguably would be illegal to X-ray a woman with a broken leg because it irradiates a nonconsenting fetus, although I suppose the father could consent on behalf of the fetus]
There is also an interesting bit of drafting, in that the list of "major bodily functions" in section 4 is arguably surplusage, because section 3 says that only life-threatening conditions can count. A cynic would say that section 4 is designed to make the exception look broader than it is. There are definitely pregnancy complications which are not life-threatening but are sufficiently dangerous to the bodily functions listed in section 4 that a doctor could be obliged (by the usual canons of medical ethics, and EMTALA) to perform an abortion that Texas law prohibits.
This is just wrong. The court opinion is very clear that loss of major bodily function would be a sufficient justification for an abortion (and the loss need not be imminent, just addressable by abortion).
I'm happy to believe that a court interpreted the document @hydroacetylene linked to to mean other than what it says, but I'm not wrong about words on a page. You can check by clicking the link.
Page three of the opinion:
Similar wording shows up repeatedly.
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