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PaperclipPerfector  16d ago (text post)   29586 thread views

Culture War Roundup for the week of November 18, 2024

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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:

A physician who tells a patient, “Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,” and in the same breath states “but the law won’t allow me to provide an abortion in these circumstances” is simply wrong in that legal assessment.

Similar wording shows up repeatedly.

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

Or the mother, who is closer at hand and has an easier time proving guardianship.

Thanks! That's useful. However, that document does not address the situation that the plaintiffs (and I) brought up which is a non-viable fetus that is still alive (e.g. a spontaneous late-term miscarriage).

That's because the Texas authorities specifically intended (based on both the text of the law and Paxton's jawboning in the Cox case) to make women carry non-viable fetuses until medical confirmation of fetal death - or to term, for non-viable fetuses which don't die until cut off from the placenta.

The issue in the Cox case is that Texas Republicans want Cox to go through several months of pregnancy, an unnecessary C-section, and six figures of medical bills (which Texas Republicans think she should not get help with, because the government fucking you in the ass is just life, but the government taxing me to pay for the lube when it fucks you in the ass is socialism) in order to achieve the spiritual benefits of watching a baby die in an incubator instead of aborting it. SCOTUS in Dobbs correctly ruled that this is within the powers of the State of Texas, but it didn't rule that it was a good idea.

This isn't even a case where rare corner case is acceptable collateral damage in order to prevent the large number of elective abortions. Paxton's intervention was widely praised by the pro-life movement because this is a type of case they care about. (Obviously not enough to support parents of severely disabled children who would be eugenically aborted if that was legal, because socialism again, but enough to ruin lives because it's for the children works on both sides of the aisle).

Really? I could believe e.g. that some fundamentalist voters (a small minority) believe that the non-viable fetus is still a living creature and therefore deserves protection. I could also believe that Ken Paxton is an attack dog who will go after suffering mothers because it's in his political interest. But the median voter? If you brought a case of a late term miscarriage, would the median voter really insist doctors wait for weeks before offering medical care?

Admittedly, I don't have great evidence for my view. I haven't looked at voter surveys on this question for example (are there any?). I do have some evidence: the Tx legislature clarified the law in HB 3058. But what evidence do you have?

And if the median voter doesn't have such a hardline view, we're back to my original question. Why would the Texas Legislature impose such a blunt guideline instead of a more nuanced one?

The pro-life movement is funded and staffed by fundamentalists, and they wrote the legislation. By and large, the pro-life movement do support an exception for sufficiently dangerous-to-the-mother pregnancies . They don't support an exception for non-viable fetuses, which forms part of a pattern where pro-life Christians (particularly Catholics) support heroic intervention to keep non-viable babies like Charlie Gard alive for as long as possible, as well as their opposition to withdrawing treatment from effectively non-viable adults like Terri Schiavo. I think pro-life Christians are consistent in their attitude to these cases and that it reflects their religious beliefs, but I profoundly disagree with them.

I don't know why Ken Paxton chose to noisily go after a mother who wanted to abort a non-viable fetus, but he did. I hope the median general election voter applies condign punishment, but given the nature of Texas politics I doubt it. My best guess is that Paxton is positioning himself to run for governor, and the main obstacle is a Texas Republican primary in which the median voter is well to the right of Donald Trump. One weakness of the American electoral system is that in a 60-40 state like Texas it tends to elect a government that represents the median Republican, not the median voter. And given that almost 40% of Americans claim to be young-earth creationists when polled, I don't think that fundamentalists are going to be a small minority of Texas Republicans.

HB3058 doesn't cover non-viable fetuses, it clarifies two particular cases where there is a genuine threat to the life of the mother (as opposed to the fake threat to the mother's continued fertility that Cox's lawyers tried to use to work around the lack of an exception for non-viable fetuses). Unlike danger-to-mother cases where there is clearly a desire to produce workable rules that allow a reasonable margin of discretion to the doctor treating an emergency case without opening a loophole the size of a barn door, I see no movement from the pro-life right in the US on this point.

Not commenting on your main question, but when it comes to whether someone gets help with Medical expenses I'm confused what you are referring too.

  1. ACA plans are heavily subsidized for (currently) everyone regardless of Income, and pending ARPA subsidy expiration will stilly very heavily subsidized for people <250% FPL and somewhat subsidized for under 400% FPL.
  2. If under <100% FPL Medicaid exists and is heavily subsidized care
  3. Children with serious chronic illnesses (from Cancer to more substantial handicaps) can be eligible for Medicaid including at-home nursing at no cost to their parents.

Texas has not expanded Medicaid, so if this person is somehow <138% FPL but not eligible for Medicaid otherwise they might be in trouble (weird coverage gap thing Congress should absolutely fix by just making everyone <138% FPL eligible for CSR 94 plans + highest level of APTC subsidies), but #3 would still apply.

Conservative Republicans want to cut Medicaid and ACA subsidies. They haven't said where or how much by, but they're in government now and are going to have to start making decisions. I acknowledge that both GOPe and MAGA republicans like to talk a good game about cutting spending and not do it, but if you take the right seriously about their spending plans then ACA subsidies are on the way out and Medicaid is going to see deep cuts in order to protect Social Security, Medicare and military spending.

enhanced ACA subsidies might be on the way out, which were new in the last few years. The status quo subsidies I have seen nothing about cutting.

I too would like to see our gerontocracy see deeper cuts but that seems to be politically untenable, to say nothing of the giant wealth transfer to them that was our COVID policy...

It’s mentioned in the decision, at least.

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.

Me in my original comment:

Most of the articles were about as bad as the one described in the above comment.

Let's not waste time on things we already agree on.

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.

At least from reading the supreme court opinion, that is not the impression I got. Of course, most doctors won't read the opinion. Instead, they'll get their information from rags like ProPublica so you might well be right.

But... assuming that doctors do read the SCOTX opinion, the rule is that as long as any reasonable doctor agrees that an abortion complies with the restrictions of the law, the doctors are in the clear. That sounds like a pretty lax standard to me? As in, as long as the defendants are able to produce any medical authority in good standing that agrees with them, they're in the clear.

The specific situations in the lawsuit back this up. The women in the lawsuit were not in any danger of impairment/death (beyond the usual pregnancy risks). A late-term miscarriage carries some probability of infection and it's not even clear this is a high probability (thoughts from actual doctors?). It does seem like an unnecessary risk (and imposition) to the mother imo but that's where my comments on the heartbeat law come into play. The guidelines for doctors at least seem to be clear.

Of course, most doctors won't read the opinion. Instead, they'll get their information from rags like ProPublica so you might well be right.

No. They'll get their information from their insurers and from the legal departments at the hospitals where they're employed, and I guarantee you that the attorneys involved aren't basing their advice on Pro Publica articles. The doctor in the Cox case wanted to perform an abortion, but was told by the hospital administration that they would only allow it if there was a court order. The doctors are directly consulting with sophisticated parties who can't tell them what the law is, exactly, and they're asking the courts to grant permission ahead of time to avoid potential criminal liability.

But... assuming that doctors do read the SCOTX opinion, the rule is that as long as any reasonable doctor agrees that an abortion complies with the restrictions of the law, the doctors are in the clear. That sounds like a pretty lax standard to me? As in, as long as the defendants are able to produce any medical authority in good standing that agrees with them, they're in the clear.

That is explicitly not what the opinion says. To wit:

Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise “reasonable medical judgment,” the Legislature determined that the medical judgment involved must meet an objective standard. Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment...

The standard is objective and not subjective. We don't make a determination that the doctor herself is "reasonable" and then defer to her judgment. We don't ask the doctor to point to some outside authority supporting her decision and back off so long as she can provide one. The bojective standard requires the jury to place themselves in the shoes of a hypothetical "reasonable doctor" and determine if the defendant's actions were in line with what this fictional doctor would do. When the court continues the quote above to say that

Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard

They are simply stating that Dr. Karsan did not use the appropriate test. They are not saying that Dr. Karsan's actions would have met the test. What this effectively means is that the legal reality of whether an abortion falls within an exception is something that can only be determined by a court, after the fact. Doctors can make educated guesses about edge cases, but simply stating that they believed the abortion was necessary, or believed their actions were reasonable, or believed the exception applied, or can support their conclusions with 500 citations to the medical literature is ultimately irrelevant, because these subjective beliefs do not, in and of themselves, make the doctor's actions objectively reasonable.

No. They'll get their information from their insurers and from the legal departments at the hospitals where they're employed, and I guarantee you that the attorneys involved aren't basing their advice on Pro Publica articles.

Fair enough.

The court addressed this specifically in IV.A. Specifically, on page 22, they state:

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.

(Footnotes elided.)

The opinion has more exposition on this (and I assume the case they refer to has even more). It does not seem to be as unreasonable a standard as you seem to imply.

At least from reading the supreme court opinion, that is not the impression I got. Of course, most doctors won't read the opinion. Instead, they'll get their information from rags like ProPublica so you might well be right.

The doctors in this case got their information from the Texas attorney general, who publicly threatened to prosecute them if the lower-court order allowing them to perform the abortion didn't hold up on appeal (as, in the end, it didn't).

If option A means potential prosecution and option B means a possible hike in malpractice insurance premiums, option B wins every time.

Definitely most of the time. But abortion seems a topic of generally much stronger opinions than euthanasia, and at least one doctor there (Kevorkian) was willing to go to jail for what he believed in. As far as I know, nobody is actually in jail for violating post-Dobbs abortion rules in the US, which I find surprising.

I'm honestly surprised nobody has challenged it yet. The trial would be a three ring circus akin to the Scopes trial, and Paxton would have to deal with the reality of it being difficult to get a conviction in the kind of urban county where the law is likely to be tested. I think the reason that hasn't been done yet is because testing the law is ultimately an exercise in futility. The defense is likely to rely more on the exceptions than call for full-throated jury nullification, and the response to any acquittal would be the legislature specifically barring an individual exception. Or they could just do nothing and make the prosecution itself a deterrent. Kevorkian was acquitted when he was using his suicide machine or whatever it was and there were legitimate legal arguments to be made that his actions weren't criminal. When he started injecting patients directly and relying on moral arguments instead of legal ones, he got convicted.

It's much safer to transport a pregnant woman across state lines than it is to lose your medical licence. (Which the State can take without the inconvenience of a jury trial). If you are trying to #resist, it's also more theatrical (providing the State isn't stupid enough to press criminal charges and attract the publicity associated with said trial). So people are doing that rather than fighting abortion bans.

If red states actually try to enforce laws against travelling to get an out-of-state abortion, then the shit is going to hit the fan in way which is unlikely to end up well for the pro-life movement, so they don't.

The state has all the initiative. It can decline most challenges by waffling on phrasing. It doesn’t need to prosecute anything that isn’t a slam dunk because it’s satisfied with the chilling effect. So any challenge has to come from a woman who is sympathetic enough to win, but not so sympathetic that the state sees the writing on the wall and declines. That makes an already-small pool even smaller.

Finding a pro-life jury in Dallas or Travis county takes work, but it’s very doable, and while it would be controversial Texas doesn’t need to care- it’s not actually illegal to exclude jurors who are likely to nullify the law.

A pro-life jury wouldn't be enough in a case like this; you'd need a jury who is actively gunning for the doctor. I don't think you appreciate what it would actually take to secure a conviction. The only witnesses testifying for the prosecution would be whatever bureaucrat decided a crime had been committed based on a review of the paperwork and a medical expert who would testify that the life of the mother wasn't in danger. the defense has their own expert to counter the prosecution. They also have the mother, who will tearfully testify about how excited her and her husband were when they got pregnant and how sick she got at the hospital and how terminating the pregnancy was the hardest decision of her life and how the defendant is a hero, etc. The facts imply that the treating physician was of the opinion that the abortion was medically necessary.

I'm a litigator, and I deal in medical issues; juries are not going to sympathize with pencil pushers who never met the woman let alone examined her. What you're asking them to do is overrule the judgment of a treating physician over the objection of an expert. At this point, the best the prosecution can hope for is a hung jury. And this is all before you even have to worry about jury selection. If the prosecution directly asks prospective jurors about abortion then all they're doing is poisoning the jury pool by dredging up opinions on a sensitive topic. And for what? You aren't getting anyone booted for cause without disqualifying the entire jury pool, so you're just looking for places to waste your peremptories. The goal shouldn't be to get a pro-life jury, because you're not getting one. The goal in jury selection should be to use relevant proxies to weed out anyone who is rabidly pro-choice.

"They also have the mother, who will tearfully testify about how excited her and her husband were when they got pregnant and how sick she got at the hospital and how terminating the pregnancy was the hardest decision of her life and how the defendant is a hero, etc."

What if the judge is hostile and decides to disallow that testimony?

What grounds would the judge have for excluding the testimony? To answer your question, it would almost certainly mean the case gets overturned on appeal.

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which I find surprising.

doctors know how to cook their books.

Wouldn't "we killed the patient through inaction" also leave them vulnerable to prosecution/malpractice claims? If I show up to the ER with a gunshot wound and they say they think it's illegal to treat me, go away, I imagine I have an easy lawsuit to win.

You'd have a lawsuit but it wouldn't necessarily be an easy one to win, or even settle. Malpractice claims are negligence claims, and to prevail on a negligence claim you have to prove that the defendant breached a reasonableness standard. You're going to have a hard time arguing that the defendant breached that standard if they can show they had a reasonable belief that treating the wound was illegal. Even if you win, what happens? The Plaintiff gets a settlement, the insurance company pays it, and your rates go up. It's not an ideal situation, but it's better than being prosecuted.

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 seems like a "them" problem, unless there's some actual evidence of such prosecutions.

If you're in Texas and are a woman or have a wife, sister, or daughter, it sounds like a "you" problem.

  • -12

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.

A doctor says an abortion is medically necessary.

"Well, we have to have judges second-guessing those decisions, otherwise doctors would abuse the system."

A doctor won't say an abortion is medically necessary.

"Gotta defer to doctors and their medical expertise!"

  • -16

The court specifically says that the doctor did not claim that the exception applies?

That doesn’t seem like a fair interpretation of what transpired.

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?

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Yes, we're reading the same decision.

But how is "believes in good faith, exercising her best medical judgment...that the medical exception to Texas’ abortion bans and laws permits an abortion in Ms. Cox’s circumstances" not asserting a "reasonable medical judgment"?

Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise “reasonable medical judgment,” the Legislature determined that the medical judgment involved must meet an objective standard.
...the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard.

So the state accepts that Karsan asserted her judgement in good faith, but insists that it wasn't a "reasonable medical" judgment, because it didn't meet their standard. What standard? An "objective" one. Okay, but what standard? What magic words would she have to say to clear the bar?

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.

Checking the complaint, then, what's this?

(138) Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox.

Oh, that "good faith" only extends to a recommendation. She chickened out and wouldn't commit to--

(139) It is also Dr. Karsan’s good faith belief and medical recommendation that that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed.

So Karsan literally used all the magic words from the statute except "reasonable." This gives the state Supreme Court license to ignore her recommendation, revoke her legal protection, and send her employer a threatening letter about how she's still risking their accreditation. All while insisting that "Only a doctor can exercise 'reasonable medical judgment'."

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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.

Word games.

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Following up on a past comment on abortion by @naraburns: https://www.themotte.org/comment/250966?context=3#context.

An adjacent thought I've been wondering about is- to what extent are these outrage-bait cases routine medical (or patient) errors, that would've happened in exactly the same way but been totally ignored pre-Dobbs?

After reading the decision more completely, I don’t think routine error applies to the OP’s cases. They’re about complications or perverse results from Texas doctors denying care for fear of liability. The women then either sought abortions out of state or carried the fetus until its death was unambiguous.

Routine error was a possibility for Nara’s original case, but an unlikely one. Based on this survey of adverse events due to abortion pills between 2000 and 2019, Ms. Thurman had a 20/2660 = 0.7% chance of death after her adverse event. On the other hand, all 20 of those were more or less ignored, right? So neither likely nor publicized.

Don't forget that Ms Thurman also declined to seek medical care for her adverse event; this surely raises the odds of abortion pills doing very bad things.

Right, though I don’t have information for that on the other deaths. So they could also be the % of society who can’t or won’t get to a hospital.

I think a few of them have been revealed to be EMTALA violations on the part of the hospital but I’m not sure.

Thank you for reading more into it.

I don't have the links right now but I did a deep dive on nih when the story first came out. There are reports of deaths due to this cause dating back decades and totally unrelated to abortion bans.

Immediate D&C seems to be the current best practice but it's a rare case and many doctors likely don't have experience with these cases and aren't up to date on the latest literature. Without knowing that the doctor specifically thought the abortion ban was related, I think it's extremely likely that this doctor was simply doing the standard of care that he felt was right.

edit: some sources: https://www.nejm.org/doi/10.1056/NEJMoa051620 https://link.springer.com/chapter/10.1007/978-1-4471-1918-0_8 https://www.wellesu.com/10.1097/aog.0000000000000795

Intuitively, it’s got to be pretty high, right? New restrictions shouldn’t be causing more abortions; at worst, they’re moving safe procedures to unsafe ones. The main suggestion I’ve seen is causing women to resort to mifepristone instead of a surgical abortion, but that’s not what generates late-term outrage bait.

How many of them, for that matter, are uninsured patients with hospitals trying to wriggle out of an EMTALA violation.

Mistake vs. Conflict Theory

Left-wing doctors are playing a political game with women's lives to advance a pro-abortion agenda, helping to create propaganda.

Some doctors believe left-wing propaganda and think they’re following the law. Akin, they’re the type of people who (edit: if they disagree with the law), when the Nazis come to the door, would rat out a neighbor hiding Jews under the floorboards.

Doctors are covering up malpractice for a willing media.

The propaganda is so effective that even my religious, anti-Trump, Romney-Republican boss is concerned about his daughters getting pregnant and being unable to receive life-saving treatment. My sister had an ectopic pregnancy since Dobbs, and she experienced no issues accessing treatment.

This does seem to be the case. "There is a widespread opposition and suspicion to seeking compromise or harm reduction with Republicans" Instead, they're hoping the increased abortion-related deaths will ensure it's a salient issue for voters.

Even if this is true, so what? Texas isn't one of those places that believes in an inherent right to medical treatment. Freedom includes people who aren't you who do not wish to associate with you. Maybe if you need something from someone, you should either sit at the table with them and negotiate or else find a way to do without them, such as by training up pro-life doctors.

What are you talking about? I can’t tell what you’re claiming is malpractice. And what does it have to do with Jews?

I think the implication is that left-leaning doctors are, either deliberately or quite possibly inadvertently, engaging in something like Washington Monument Syndrome with abortion cases: in the same way that the first cuts to the NPS prominently close the Washington Mall, marginal non-emergency abortion restrictions are read to apply to even life-or-death cases that should be pretty clear.

I wouldn't put huge weight in it, but there are plenty of examples of partisans reading opponent's rules maximally uncharitably. The fight over school library books comes to mind: this is probably choosing a side, but every rule that is charitably "stop putting the works of Chuck Tingle in the kindergarten section" is read uncharitably to ban (unabridged) copies of The Diary of a Young Girl.

Let me know when protestors start holding signs for Alyona Dixon.

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