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PaperclipPerfector  3d ago (text post)   13490 thread views

Culture War Roundup for the week of November 18, 2024

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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.

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