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PaperclipPerfector  3mo ago (text post)   29194 thread views

Culture War Roundup for the week of January 13, 2025

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Another abortion case (edit: this article is is based off of and links to a lengthy ProPublica article on the case) finds its way to the front page of reddit. To its credit, it's not the ragebait that the "mother-fails-to-go-to-hospital-after-days-of-heavy-bleeding-caused-by-abortion-pills" seen recently.

The expectant mom had woken up on the day of her baby shower with nausea and vomiting, which turned out to be a deadly infection.

But she had to plead for medical assistance, with doctors waiting to perform two ultrasounds to confirm her fetus had no heartbeat before they would intervene.

Wait, what? Two ultrasounds? One ultrasound confirming no heartbeat wasn't enough? The article heavily winks that it was all due to that crummy heartbeat law:

Experts told the publication that there was ‘no medical reason’ to make Crain wait for two ultrasounds before taking action to save her.

But wait a minute, what does the law itself say? Per Wikipedia:

Section 3 of the Act requires a physician to test for a "fetal heartbeat" (or "cardiac activity") before performing an abortion and prohibits abortion if a "fetal heartbeat" is detected. The only exception is for when "a physician believes a medical emergency exists that prevents compliance." The term "medical emergency" is not defined in the statute.

Okay, sure, it's a little vague on what emergencies are. But I think you could pretty easily argue that a deadly infection is a medical emergency. Especially after you already have one ultrasound confirming no heartbeat.

As the article says, this is one of two cases where someone died upon waiting for two ultrasounds. At what point is this medical malpractice that has little to do with abortion laws? I have to wonder if the doctor is an activist doctor that is morally opposed to the heartbeat bill and is willing to let people die to further the cause. If someone's on the brink of death, you should treat them, legality should be an afterthought. But to wait for two ultrasounds, it seems like saving people was the afterthought here.

Edit: They also turned her away for sepsis without treating her, as The_Nybbler points out. Hmm, seems like abortion laws aren't entirely the reason for her death. You kind of have to treat people for that instead of just shrugging that you can't kill her fetus and then send her home. In fact, maybe the sepsis caused the fetus to die? But they missed that it was sepsis.

I don't understand why people suddenly forget about chilling effects in this context. The government passes a law that bans doing X but it's ambiguous whether some similar behavior Y is part of X. Even if Y is not covered by X that ambiguity might chill people from doing Y if they think the government might prosecute them for doing Y. Even if the government ultimately does not succeed (jury acquittal) defending yourself in a criminal trial is not exactly free.

So, let's ask how the exemption for a medical emergency works. Is the standard subjective or objective? Does the physician merely have to say the magic words "I think there is a medical emergency?" Do they have to actually believe there is a sufficient medical emergency? Is their determination open to challenge by the state after the fact? Maybe you're pretty sure, in the moment, such a medical emergency exists. Are you "the state couldn't find a doctor who could convince a jury otherwise on pain of conviction of a first degree felony" sure? Especially if the alternative is, what, a medical malpractice or wrongful death claim? Your insurance probably covers the latter. It won't protect you from a felony conviction!

These laws fulfill their obviously intended effect of chilling doctors from providing abortions whether or not they have a fig leaf of an exception.

Asked and answered in previous threads. There are magic words the physician has to say, and by doing so they are putting their reputation on the line and subjecting themselves to the judgement of the Texas medical board. But as far as I can tell, they are not putting themselves at risk of criminal penalty; the law is quite deferential to their judgement.

I'm fairly sure discharging a patient with sepsis is far riskier. And not just for the patient.

This is precisely the opposite of what the Supreme Court of Texas held in Zurawski v. State. In that case the Supreme Court of Texas emphasized that the standard was objective and that if the State could prove that no reasonable physician would have authorized the procedure, then it would be criminal to perform. Quoting that case:

We examined the meaning of “reasonable medical judgment” in In re State. In that case, the trial court replaced “reasonable medical judgment” with “good faith belief.” While we observed some overlap, we held that the law does not permit an abortion based on belief alone. Rather, a doctor must identify a life-threatening physical condition that places the mother at risk of death or serious physical impairment of a major bodily function unless an abortion is performed.

The Center argues that such a standard means that doctors are susceptible to a battle of the experts when not every doctor might reach the same medical judgment in each case. We rejected such an interpretation in In re State. “Reasonable medical judgment,” we held, “does not mean that every doctor would reach the same conclusion.” Rather, in an enforcement action under the Human Life Protection Act, the burden is the State’s to prove that no reasonable physician would have concluded that the mother had a life-threatening physical condition that placed her at risk of death or of substantial impairment of a major bodily function unless the abortion was performed.

The state is absolutely permitted to second guess the judgement of a physician and potentially inflict criminal penalties on them.

No reasonable physician is a very broad standard. If you can’t get another doctor or two to agree, then it probably wasn’t reasonable. If you get a couple of doctors, then it would be hard for a physician to say otherwise.

Sure, but this is quite different than "the physician need only say some magic words and will thence be immune to prosecution."

I think the delta between the two is quite small

This seems like the sort of thing where one only needs to procure a "reasonable physician" or two to testify that they would have reached the same conclusion. Perhaps the state could impugn the reasonableness of such witnesses, but in this case you could probably rustle up a signed letter from half the doctors at [local hospital] and I think even the craziest jury would have trouble finding all of them "unreasonable".

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