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PaperclipPerfector  3d ago (text post)   15654 thread views

Culture War Roundup for the week of November 18, 2024

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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.

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.

They could say it's irrelevant to the case. Her belief that she needed the abortion is not a defense of the doctor's conduct.

That's not the purpose of her testimony. The crux of the defense case is obviously going to be the medical expert, but you can't just have them testify out of the clear blue; you need to lay a foundation. She's going to testify to basic background information, her personal medical history, family history, the events leading up to the pregnancy, the course of the pregnancy, and obviously the specific conversations with the defendant that led up to the abortion. Her discussions with the doctor get his statements about his opinion on medical necessity into evidence without having the defendant testify. Her testimony about not wanting to lose the baby is relevant in that it decreases the likelihood that it was an elective procedure—women who want the child do not typically get abortions.

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?

If the doctor had claimed that in her reasonable medical judgement, Cox was covered by the medical exception, most likely the issue of whether such judgement was reasonable would have been litigated. But you yourself MadMonzer gives the real reason for Cox's wanting an abortion here; it was the non-viability of the fetus, not the threat to the mother.

That wasn't me.

More comments

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'."

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"?

Because those "good faith" and "reasonableness" are two different standards in law, and the plaintiffs were trying to get the courts to accept a "good faith" standard when the statute required a "reasonableness" one.

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'."

Her legal protection was not revoked; she just didn't have it because she refused to commit to a "reasonable medical judgement". And yes, that means all three words.

No, it doesn’t. In the first footnote of their response, the Supreme Court defines “reasonable medical judgment.”

a medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical condition involved.

Which of these did Dr. Karsan not attest? More importantly, why doesn’t the Supreme Court specify?

Even if you don’t think the abortion was necessary—isn’t this perverse? The state is shooting down every attempt to clarify its laws before committing a potentially criminal act.

More comments

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.

Yes, it's law.

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