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PaperclipPerfector  5d ago (text post)   21616 thread views

Culture War Roundup for the week of January 13, 2025

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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".

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