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PaperclipPerfector  8d ago (text post)   28070 thread views

Culture War Roundup for the week of January 13, 2025

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Another abortion case (edit: this article is is based off of and links to a lengthy ProPublica article on the case) finds its way to the front page of reddit. To its credit, it's not the ragebait that the "mother-fails-to-go-to-hospital-after-days-of-heavy-bleeding-caused-by-abortion-pills" seen recently.

The expectant mom had woken up on the day of her baby shower with nausea and vomiting, which turned out to be a deadly infection.

But she had to plead for medical assistance, with doctors waiting to perform two ultrasounds to confirm her fetus had no heartbeat before they would intervene.

Wait, what? Two ultrasounds? One ultrasound confirming no heartbeat wasn't enough? The article heavily winks that it was all due to that crummy heartbeat law:

Experts told the publication that there was ‘no medical reason’ to make Crain wait for two ultrasounds before taking action to save her.

But wait a minute, what does the law itself say? Per Wikipedia:

Section 3 of the Act requires a physician to test for a "fetal heartbeat" (or "cardiac activity") before performing an abortion and prohibits abortion if a "fetal heartbeat" is detected. The only exception is for when "a physician believes a medical emergency exists that prevents compliance." The term "medical emergency" is not defined in the statute.

Okay, sure, it's a little vague on what emergencies are. But I think you could pretty easily argue that a deadly infection is a medical emergency. Especially after you already have one ultrasound confirming no heartbeat.

As the article says, this is one of two cases where someone died upon waiting for two ultrasounds. At what point is this medical malpractice that has little to do with abortion laws? I have to wonder if the doctor is an activist doctor that is morally opposed to the heartbeat bill and is willing to let people die to further the cause. If someone's on the brink of death, you should treat them, legality should be an afterthought. But to wait for two ultrasounds, it seems like saving people was the afterthought here.

Edit: They also turned her away for sepsis without treating her, as The_Nybbler points out. Hmm, seems like abortion laws aren't entirely the reason for her death. You kind of have to treat people for that instead of just shrugging that you can't kill her fetus and then send her home. In fact, maybe the sepsis caused the fetus to die? But they missed that it was sepsis.

From the source propublica article:

“Dr. Totorica states to not move patient,” she wrote after talking with him. “Dr. Totorica states there is a slight chance patient may need to go to ICU and he wants the bedside ultrasound to be done stat for sure before admitting to room.”

Though he had already performed an ultrasound, he was asking for a second.

The first hadn’t preserved an image of Crain’s womb in the medical record.“Bedside ultrasounds aren’t always set up to save images permanently,” said Abbott, the Boston OB-GYN.

The state’s laws banning abortion require that doctors record the absence of a fetal heartbeat before intervening with a procedure that could end a pregnancy. Exceptions for medical emergencies demand physicians document their reasoning.

You can read the relevant statute here is §171.205. The additional regulatory burden is not an accident. It’s one of the main mechanisms by which Texas is reducing abortions performed in-state.

I expect the goalposts to recede into the distance as the usual suspects try to place the blame somewhere, anywhere but on the pro-life bloc.

(I'm not actually a doctor)

You also don't need ultrasound to confirm fetal heartbeat. You can use a much more commonly available fetal Doppler monitor. You can find them on Amazon for like $100. Really nice ones that are "medical grade" look like they cost $1000 tops.

But perhaps an ultrasound is more reliable for "evidence of no heartbeat" rather than "no evidence of heartbeat".

This case is about someone 17 weeks into pregnancy. At that stage it's early enough that the Doppler is not that reliable. Usually the Dr can find a heartbeat, but sometimes they can't due to a variety of reasons, and that's perfectly normal. I don't think pro-life fanatics would take an early pregnancy negative Doppler as meaning much of anything.

I don't understand why people suddenly forget about chilling effects in this context. The government passes a law that bans doing X but it's ambiguous whether some similar behavior Y is part of X. Even if Y is not covered by X that ambiguity might chill people from doing Y if they think the government might prosecute them for doing Y. Even if the government ultimately does not succeed (jury acquittal) defending yourself in a criminal trial is not exactly free.

So, let's ask how the exemption for a medical emergency works. Is the standard subjective or objective? Does the physician merely have to say the magic words "I think there is a medical emergency?" Do they have to actually believe there is a sufficient medical emergency? Is their determination open to challenge by the state after the fact? Maybe you're pretty sure, in the moment, such a medical emergency exists. Are you "the state couldn't find a doctor who could convince a jury otherwise on pain of conviction of a first degree felony" sure? Especially if the alternative is, what, a medical malpractice or wrongful death claim? Your insurance probably covers the latter. It won't protect you from a felony conviction!

These laws fulfill their obviously intended effect of chilling doctors from providing abortions whether or not they have a fig leaf of an exception.

I haven’t forgotten. And while @The_Nybbler insists there there totally were magic words in Dr. Karsan’s case, I observe that this one relies on §171.205 instead of §171.046, and thus uses the “physician’s belief” standard instead of the “physician’s reasonable medical judgment” one.

If Dr. Karsan was only shot down because she didn’t say her own judgment was “reasonable,” I don’t think other doctors are wrong to be afraid of having their words twisted.

The court in Dr. Karsan's case based their judgement on 170A.002(b)(2), a different chapter entirely.

Asked and answered in previous threads. There are magic words the physician has to say, and by doing so they are putting their reputation on the line and subjecting themselves to the judgement of the Texas medical board. But as far as I can tell, they are not putting themselves at risk of criminal penalty; the law is quite deferential to their judgement.

I'm fairly sure discharging a patient with sepsis is far riskier. And not just for the patient.

This is precisely the opposite of what the Supreme Court of Texas held in Zurawski v. State. In that case the Supreme Court of Texas emphasized that the standard was objective and that if the State could prove that no reasonable physician would have authorized the procedure, then it would be criminal to perform. Quoting that case:

We examined the meaning of “reasonable medical judgment” in In re State. In that case, the trial court replaced “reasonable medical judgment” with “good faith belief.” While we observed some overlap, we held that the law does not permit an abortion based on belief alone. Rather, a doctor must identify a life-threatening physical condition that places the mother at risk of death or serious physical impairment of a major bodily function unless an abortion is performed.

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.

The state is absolutely permitted to second guess the judgement of a physician and potentially inflict criminal penalties on them.

The state of Texas clarified after that case what the exemptions looked like(this has been posted and discussed in previous threads). The TDLR is that threat to the woman’s life or major bodily function within a physician’s reasonable medical judgement allows the abortion, and certain medical treatments are legally defined as not-abortion.

The case usually referred to as ‘the state can prosecute doctors’ was explicitly not an abortion to prevent death or loss of a major bodily function, it was to prevent having a disabled child.

My point is that the "reasonable medical judgement" standard is an objective one, not a subjective one. Whether you committed a crime doesn't, necessarily, depend on whether you thought your actions were reasonable. Rather it depends on whether you can do a better job convincing a jury your actions were reasonable against the state trying to convince the jury they're unreasonable. Most doctors, understandably, do not want to take that risk! That is why they obsess over the fetal heartbeat thing. That is a much clearer line.

At best, you are demonstrating a chilling effect may have happened at a point where significant malpractice had occurred perhaps twice, and the woman was already near death (IF everyone involved is telling the truth about their actions - what mom with a pregnant 18 year old leaves the hospital after they've been declared septic??!?). Let's start with the malpractice and then we can worry about these edge cases.

au contraire I think the medical malpractice was a result of the chilling effect. They were afraid to give her an abortion due to fear or prosecution so they wanted confirmation of the much more bright-line exception in the form of the fetal heartbeat results.

The malpractice was when she was sent home while septic and 6 months pregnant

No reasonable physician is a very broad standard. If you can’t get another doctor or two to agree, then it probably wasn’t reasonable. If you get a couple of doctors, then it would be hard for a physician to say otherwise.

Sure, but this is quite different than "the physician need only say some magic words and will thence be immune to prosecution."

I think the delta between the two is quite small

This seems like the sort of thing where one only needs to procure a "reasonable physician" or two to testify that they would have reached the same conclusion. Perhaps the state could impugn the reasonableness of such witnesses, but in this case you could probably rustle up a signed letter from half the doctors at [local hospital] and I think even the craziest jury would have trouble finding all of them "unreasonable".

Well, the relevant question to ask is what algorithm the doctors were following and if there would have been one that they should have been following instead. Have there been cases, or plausible threats, of doctors getting into trouble for not performing a second test? I could imagine anti-abortion activists subscribing to a narrative along the lines of "liberal doctors have no intention of complying with the spirit of the law, so they will try to get around it by performing a single test with a high false negative rate to murder more babies", and going to look for cases that fit the pattern and demanding that compliant attorney generals prosecute.

I suspect the doctors would have been pretty cautious even if they were practicing in New York. Nobody wants to get sued out of business and have their license to practice revoke because they killed someone’s baby when it wasn’t medically necessary.

Wouldn't they be similarly worried about getting sued out of business and their license revoked for not treating sepsis?

Uh, can you link to cases of doctors being prosecuted for abortions by red states? As far as I know there aren’t any.

Have there been cases, or plausible threats, of doctors getting into trouble for not performing a second test?

Have any doctors gotten into trouble at all since Dobbs? I can only imagine those cases would have been shouted about even louder.

I can understand the entire Sword of Damocles argument, but I've been surprised that none felt passionately about it enough to pull a Kevorkian and openly violate the rules: it feels to me that people are far more passionate about abortion rights compared to euthanasia.

Someone tried, but the suit was thrown out. Judicial activism? Sloppy law? Who can say?

Obviously the parents are less likely to sue their provider, so if the public enforcement is thrown out, civil suits are going to be hard to come by.

Was this a suit under the pre-dobbs ban? There were actually several suits under it, all by complete lunatics with no connection to the abortion issue, and all of which were thrown out, while the pro-life organizations that had been gearing up to act as private prosecutors were legally enjoined from suing under it.

No, it was SB8.

That was the pre-Dobbs ban, which was enforced exclusively through private suits and has(if I'm reading the law correctly) been automatically voided due to a clause preventing its use after the overturn of Roe v Wade. The current Texas abortion ban is a trigger law which had been on the books long before that was passed.

Ah, my mistake, then.

The term "medical emergency" is not defined in the statute.

This is, to all intents and purposes, a lie. It is not defined in the heartbeat law itself, but it is defined in the chapter the heartbeat law is part of, and that definition explictly covers the whole chapter.

Anyway, this case has been discussed before

They identified several missed opportunities, which began when she arrived at the first hospital and was misdiagnosed with strep.

When she went to another hospital she screened positive for sepsis, but as her fetus still had a heartbeat, she was discharged.

If you're sending someone home with untreated sepsis, it isn't the heartbeat law that's the problem.

Let me guess- this woman didn’t have insurance and the hospital is blaming abortion laws for an EMTALA violation?

If this is the best they can do I assume there are essentially no cases where fetal heatbeat laws have caused serious injury or death to the mother.

The demand for these stories clearly exceeds the supply.

Anyway, this case has been discussed before

Damn. I expected that something on the front page today would have been news today. The other case I thought was also waiting on 2 ultrasounds was probably the exact same case. Ragebait lives on eternal.

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