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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.

I haven’t forgotten. And while @The_Nybbler insists there there totally were magic words in Dr. Karsan’s case, I observe that this one relies on §171.205 instead of §171.046, and thus uses the “physician’s belief” standard instead of the “physician’s reasonable medical judgment” one.

If Dr. Karsan was only shot down because she didn’t say her own judgment was “reasonable,” I don’t think other doctors are wrong to be afraid of having their words twisted.

The court in Dr. Karsan's case based their judgement on 170A.002(b)(2), a different chapter entirely.