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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.
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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.
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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.
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