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Culture War Roundup for the week of November 18, 2024

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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.