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Notes -
Which ones do you have in mind?
The state has made it clear that anything which looks like an abortion will receive extra scrutiny and political pressure, legal or not. Doctors have responded by shying away from the procedures which are most offensive to lawmakers. This is an obvious chilling effect!
@The_Nybbler will tell you that all of these were unambiguous, that the doctors responsible are immoral cowards, or worse, leftists, and that obviously the state would never make life difficult for an innocent man. I think, in my reasonable judgment, that he's full of shit.
Crain is a case where a combination of clinical incompetence and what were in effect paperwork requirements (even if they required an additional scan to meet under the circumstances) for a medically necessary abortion permitted under Texas law led to lifesaving treatment being delayed with, as it turned out, fatal results. Ngumezi was straightforward malpractice - giving a pregnant woman who doesn't qualify for a medically necessary abortion abortion pills is just as illegal as doing a D&C, and more likely to have bad clinical outcomes.
In both cases, the doctors involved were subject to professional discipline. I think disciplining the Crain doctors is a bad idea, but I understand why the Texan authorities think it is a valuable face-saving measure. The message of Crain is now that if you are a doctor or hospital administrator in Texas, you should do anything you can to stop miscarrying women going anywhere near your hospital, as there is no medico-legally way of treating them. And hospitals trying to keep hard cases off the premises will lead to more Crain-type deaths.
Barnica was an entirely correct application of Texas law as it existed at the time. At the time she would have had the moribund fetus removed under non-Texan standards of care, there wasn't a life-threatening emergency - she became septic after the heartbeat stopped. Texas has since changed their law so this shouldn't happen again, although other red states have not.
Cox is something different - it was a case involving a non-viable fetus and there was never a real risk to the mother beyond the inherent risk of pregnancy. The Texas abortion law doesn't have an exception for non-viable fetuses and this is intentional on the part of the Christian pro-life movement that wrote it. Paxton's grandstanding over the case, while ghoulish, was entirely correct as a matter of Texas law, was popular with the pro-life conservative base, and probably contributed to him winning his recent Senate primary. I don't think it will be a major contributor to his losing the general to Talarico, although it should be.
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It is tempting to believe that like leftists, rightists will engage in ridiculous contortions, twisting plain language to go after their enemy. And if that were true, abortion would certainly be the issue in which they would. But to my surprise the evidence of this is lacking; one interesting data point is that when an abortion law looked like it threatened IVF, Alabama fell over itself (overcorrecting, IMO) to avoid that. One might reasonably believe that Ken Paxton himself might be overzealous, but I believe he would have no support in Texas courts.
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You've linked to the specific statute before, and I don't think ProPublica (or the doctors involved) are operating under a good-faith analysis. "Guaranteed" is nowhere near the strict text of "in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced." Similarly, the "recorded ultrasound" requirement is actually "d) A physician making a determination under Subsection (b) shall record in the pregnant woman's medical record: (1) the estimated gestational age of the unborn child; (2) the method used to estimate the gestational age; and (3) the test used for detecting a fetal heartbeat, including the date, time, and results of the test."
And at least for ProPublica, that's not a one-off: ProPublica's coverage of Amber Thurman in Georgia was aggressively misleading, and its own staff defended the article not by claiming they had evidence to support it, but by motioning around how it could be possible.
I'd be a little more forgiving if Texas (Paxton or otherwise) had been going nuts with dubious prosecutions, but the only actual charges or serious threats of prosecution I can find are the Rojas cluster, and that entire thing has been more a mess for Texas than for the alleged abortion-provider.
I agree that ProPublica falls somewhere between “biased” and “disingenuous,” and I tried not to rely on their testimonials. It is unfortunately difficult to find reporting which doesn’t trace back to those articles.
How would you interpret the Barnica case? Did the elevated risk of sepsis, which would then qualify as life-threatening, itself qualify as life-threatening? Does preventing the infection make the abortion unnecessary? Rov_Scam described it as
Now, I do think it’s reasonable to ask what happened to the potential prosecutions. I wasn’t able to find anything other than Texas v. Rojas, which as you noted has gone quite poorly for the state. The fact that it took nearly 3 years between Dobbs and those charges suggests that either Texas isn’t really willing to go after providers or that illegal abortions are in fact hard to find. This is compatible with a strong chilling effect, but it’s not good evidence for it.
I can't give a confident analysis, because I don't have the full information. But I don't think ProPublica's interpretation matches either the text of the statute, nor even the more uncharitable form of the legislative intent. Even ignoring how broad "the exercise of reasonable medical judgment", we normally don't treat prospective rules as bounded by the current situation: saying 'this situation is only going to cause sepsis' is like saying 'this sepsis isn't going to kill you immediately', saying 'we can just treat the infection but not the cause of the infection' is the equivalent of trying to defeat a self-defense case by saying 'you could have just shot it out of their hand'. There is no imminence requirement in the statute, despite ProPublica's direst efforts to imply one, and that's since been supported by the Texas Supreme Court and the relevant medical boards.
That doesn't stop someone from bringing a completely frivolous case, but the same goes for a situation without the law entirely.
Here's where I'll point out that ProPublica is conflating multiple separate legal environments. September 2021 was firmly pre-Dobbs, the defensive decisions here were against SB8's purely civil damages and Texas's not-relevant-here D&E and 20-week bans. There was no risk of prosecution in Barnica's situation; the tradeoff was just civil suit for malpractice versus civil suit under SB8 for abortion.
Now, maybe the doctors and hospitals made the correct (if incredibly immoral) financial tradeoff, here, since they didn't get a malpractice lawsuit! But that's a whole different calculus, and one undermined by there being literally zero successful SB8 civil trials, literally ever.
Barnica died literally days after SB8 went into effect, and her medical situation is not an uncommon one from a pure statistics perspective, nor one driven by abortion providers. Unless SB8's chilling effect dropped the number of mid-pregnancy miscarriages a couple of orders of magnitude, there's dozens more cases like hers, or this abortion wasn't illegal, there's limits to how far that explanation can go.
I'm less sure about this case than Thurman's, simply because the law was new enough the hospital's legal staff may genuinely have been reviewing it, and I have less information about Barnica's health status. But it's still not a close call on legality, just on moral culpability.
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Indeed, you've changed my mind about it. If doctors are soldiers, we can note that indeed, soldiers have a harder time dealing with the enemy when overly-restrictive ROE are imposed. Friendlies get hurt, even killed, if you can't deal with cases where it's obvious to the soldier on the ground who the enemy is, but not to the politicians back home.
But then, what is to be done? Establishing a military-style court in the form of review with primacy over the criminal justice system won't fix the problem (soldiers get railroaded all the time there too), doctors (and more importantly, the organizations paying them) don't want to take that risk, and you have a major fraction of the population doing the Queers for Palestine thing about babies (perhaps even literally albeit unintentionally; Jews do tend to become doctors). Maybe a Red state should only employ Red tribe soldiers/doctors so that the kind of cultural clash presented here is minimized, but even that's no guarantee, for the US was Red from 2000-2008 and [as I understand it] the shift to Blue coincided with more restricted ROE simply because the average soldier was Red.
Maybe the best choice, or the only choice, is simply to accept that living in Texas has certain occupational hazards; to accept that the optimal number of doctors prosecuted for questionable abortions is not, and will not, be zero; and to make sure there's still some semblance of a West to run off to when there's no mind left in the nation to be changed about it.
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