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How are you sure this is malicious compliance, and not just a combination of chilling effects and most people not knowing the limits of new, unfamiliar laws?
For your teacher example, I could easily see a situation where they genuinely don't know whether books in their classroom library violate some part of the law (because, say, LGBT content wasn't among the things they screened for when buying the books in the first place), and thus found it easier to nuke the classroom library than it would be to comb through all of them and make sure they don't run afoul of the law.
And in the case of the doctors and anti-abortion laws, it really feels like you're doing the thing so many people do where they assume they live in the "most convenient world" for their worldview. Like, how convenient that anti-abortion laws would never lead to any negative outcomes ever, if not for malicious compliance on the part of doctors.
Just as police officers are not lawyers, and they deserve a little bit of charity when they misinterpret or misapply a law, doctors are not lawyers and it is not at all surprising to me that a new set of laws whose limits haven't fully been tested in the courts is leading them to fail to treat patients even when it might technically be permissible under the law. I suspect that once the dust is settled and doctors are less spooked by the threat of being charged under the new law, fewer women will die this way, but I don't think chalking it up to a "tantrum" is the most likely reading of the cases that have been making headlines.
They could have just kept the books from before 1990; that was safely before LGBTQ stuff started to get shoveled into everything.
You can't just go off of dates though. Lots of ancient Greek books are arguably suitable for children, but also contain LGBT content. Like, I could see a classroom having a copy of Plato's Symposium, which is super gay.
I mean, you could compromise by having the bowdlerized Victorian translations or something. But that doesn't help if you already have a modern translation.
But I remember reading A Rose for Emily in high school which is from 1930, and features a gay character (depicted as a bad or tragic thing though.) Even in eras where it isn't shoehorned in to everything, there will be a trickle of LGBT characters.
Yes, but the trick in the eras where they aren't shoehorned into everything is that they tend not to be introduced for homosupremacist reasons (much like how women are shoehorned into works in certain ways for gynosupremacist reasons).
It's not the homo- or gyno- that causes the problem, it's the -supremacy; and absent a
n inquisitionHays Code-style paragovernmental organization that "knows it when it sees it" there's no particularly logical way to go about erasing it."Tend to" is doing a lot of work here. Plato's Symposium says that the ultimate love is the love between two men, and it includes the idea that the "offspring" of such heavenly love is art, statecraft and philosophical ideas.
(Paragraph breaks mine, mostly because this ended up being a big block of text.)
Homosupremacist thinking has a long history in Western culture.
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You have to go a little bit earlier; "Heather Has Two Mommies" is the ur-example and is from 1989.
Or how about 1979, my last year in elementary school. If it was good enough for me, it's good enough for today's kids.
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Am doctor. Spend a lot of time here defending doctors.
The level of overreaction and fear mongering from the relevant physicians on social media was profoundly immense, these people are grossly ideologically captured, and I could absolutely see them letting someone die because of it.
Am lawyer. Spend a lot of time here defending lawyers.
One of the things I've always told clients asking for advice on specific actions is that you don't be the one who finds out where the line is. Yes, you may have a strong argument that your actions are legal, but you don't want to put yourself in a position where you have to make that argument and hope that someone with your liberty and livelihood in your hands agrees with it. People on this sub who were responding that these women's cases were obviously covered by the exception were woefully misinformed on how these things actually work. First, unless you're a doctor, and I mean an OB/GYN with 30 years of experience and a CV as long as your arm, AND you have access to the patient's medical records and anything else that could be used as evidence in the case, you're not qualified to offer an opinion on what treatment was appropriate.
Second, I remember a lot of arguments along the lines of "If you can get a hundred doctors to say the treatment was reasonable..."; well, no, that's not how it works. Maybe you can get a hundred doctors to say so, in which case you can ask them to write letters to the DA asking him not to prosecute. At trial, you get one. You'll have your expert, the prosecution will have theirs, and you have to hope the jury believes yours. And you have to keep in mind that the prosecution expert is going to be just as qualified as your guy and sound just as reasonable to a lay audience as your guy, even if you know the guy is a witch doctor who is full of shit.
And then you have to consider the political elements at play. This is a new law passed by parties who are strongly ideologically motivated. The case in question, IIRC, involved a woman with a nonviable pregnancy who was forced to wait until she miscarried before they would remove the fetus, and in the meantime she became septic. The Texas legislature has been under pressure to amend the law to specifically allow for termination of nonviable pregnancies, but has steadfastly refused to do so. So now the doctors have to rely on the much vaguer "risk of death or serious bodily injury" standard. Was there some extenuating circumstance that made this particular woman's risk of infection substantially greater than that of the average woman with a nonviable pregnancy? Unless there was, by terminating this woman's pregnancy they would effectively be instituting a policy that all nonviable pregnancies are covered under the exception. Since the legislature explicitly refused to carve out that exception, the prosecutor is likely to view the policy as pretext to perform prohibited abortions, and will be under pressure to prosecute to reassert that the exception does not exist.
Arguing something on the internet where you can press enter and not have to worry about any consequences is one thing. Making a decision that could result in a lengthy prison sentence, substantial fines, and loss of your license in quite another. Regardless of how ideologically captured they may be, their actions are reasonable. I know that if I were advising any of these doctors, I'd tell them not to perform any abortions at all unless they were on the right side of a bright line or the woman was on her death bed. If it comes down to an argument about increased risk or relies on some reasonableness standard, I'm not touching it with a ten foot pole.
I think their is some truth to this but I also saw a lot of people saying things that amounted to "well if I can't provide abortions than I'll just leave the state and leave their mothers/babies to die" which suggests their is some mean spirited and political aspects to the whole thing.
Although, in support of your point (incoming vagueness because OPSEC) I was talking to a prominent medical ethicist a few months ago and he was telling a story about how he was doing something in two different states with mutually incompatible laws, and reached out to the state AGs for both to ask which situation took precedence (ex: when the patient calls the doctor from one place but the doctor is in a different state). Shocking both of them said "our rules!"
Nobody knows what would actually happen unless you run afoul of something and it actually goes to court, but actually following the rules is at times inadvisable and awkwardly at times outright impossible.
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Right, this is why you only ask a lawyer about something like that if you want a "no". If you want to be able to do anything at all without risking losing your life, liberty, and/or property to government action, you need true anarchy.
Nevertheless, it doesn't apply in some of the situations promoted in the press, because respecting a 200-mile zone around the abortion law's actual strictures would and did force the hospitals and doctors into non-compliance with other laws and regulations. Unless discharging patients with life-threatening conditions like sepsis is somehow black-letter legal?
I mean, I'm not sure what you're talking about. First, none of the Texas cases at issue involved patients who were discharged, but lets forget that for a minute because it doesn't mean that future cases won't. What is it about exercising extreme caution that requires the hospital to discharge a septic patient? In one of the cases the septic woman was being monitored in the hospital the entire time, so this is obviously the preferred course of action. Third, even if the hospital did discharge a septic patient, well, I'm unaware of any laws that prohibit that, black letter or otherwise. the closest laws I'm aware of are those that prohibit hospitals with EDs from turning away patients with emergency medical conditions due to inability to pay.
So doctors and hospitals realistically have two options:
Perform the abortion, which creates a potential criminal liability, the consequences of which are up to 99 years in prison, substantial fines, loss of license, and various other administrative penalties. If this liability is pursued I have a good defense.
Don't perform the abortion and treat the patient using other means. This MAY create a civil liability IF the patient actually suffers adverse consequences, which they may not. In the event that happens, the civil liability is limited to money damages the doctor and hospital are insured against it. The doctor and hospital have a good defense here as well, as they can argue that they reasonably assumed that the abortion would have been illegal under Texas law.
the defenses cancel each other out. So what you have here is a fully mature criminal liability with severe consequences that can't be indemnified, vs. a potential civil liability with mild to moderate consequences that already are indemnified. What doctor in his right mind would select option 1?
The other interesting thing I would point out about this is that, for all the guarantees I've seen here and elsewhere that the doctor's actions in any of these deaths would have totally been covered by the exception, they've been curiously absent coming from anyone who actually matters. I haven't heard Ken Paxton or anyone else from the AG's office saying that performing an abortion in those circumstances would not be criminal, nor have I heard it from the governor. I haven't heard any state legislator suggest that those circumstances were of the type the exception was intended to cover. The Supreme Court declared that the law wasn't vague and declined to offer any further guidance. The only Texas politician who has done so was Ted Cruz, but he's in no position to actually make determinations about these things. It's easy to say what we think would have happened because we know that the woman ended up dying. But if she lives, it's a different story. We now have a perfectly healthy woman and a dead baby and the Terri Schaivo crowd who is behind limiting these exceptions would claim that there's no way we can know that the baby wouldn't have been perfectly healthy had it not been killed in the womb. There have been no prosecutions thus far, and as such we have no idea what to expect. Any doctor who decides to perform an abortion he can't absolutely, 100% say is necessary to prevent death or permanent impairment, not simply a reasonable precaution against an increased risk, is taking a 99 year gamble. You'd better believe he's not getting within 200 miles of that law.
Nevaeh Crain
Neither of these have anything to do with over-reaction, even justified over-reaction, to the heartbeat law. Nor do they demonstrate a precautionary attitude in the first place.
She went to a third hospital where care was supposedly delayed two hours because they needed two ultrasounds (it doesn't take two hours to get two ultrasounds if your hospital is at all competent) to confirm fetal death. But that doesn't explain the first two hospitals.
The Supreme Court:
The second and third hospital were the same hospital, just at different time. I agree that nothing in the case itself indicates that the law played a factor in her lack of treatment and subsequent demise, but I did notice this tidbit from the end of the article:
Under the guise of tort reform, the Texas Legislature passed the Texas Medical Liability Act which, among other things, capped noneconomic damages at $250,000 and imposed a much stricter standard on plaintiffs in cases involving emergency room treatment. In this light, the hospital's actions look completely rational. If they admit a pregnant woman with sepsis they run the risk that she may need an abortion and then they face the dilemma of either exposing themselves to criminal liability on the one hand and a malpractice suit on the other. As it says in the article, she wasn't diagnosed with sepsis, it was merely suspected that she had sepsis. Either way, if they send her home with antibiotics they can just avoid the whole hornet's nest and not have to worry about a malpractice suit. This is all merely speculation but it makes sense in context: She comes to the ER, they suspect she's septic, they check the fetal heartbeat, they know what they have to do but they can't do it, they know that if they admit her for further observation their liability increases exponentially, so they send her home. When she comes back a few hours later, they don't find a heartbeat and still know what they have to do but need a sonogram so they can meet documentation standards and they fuck that up, which probably isn't related to any liability concerns but it's unclear if the two hour delay would have made any difference. Either way, all that happened before she was admitted, and there's no indication that any malpractice took place while she was in the ICU, so they're in the clear. They avoided dealing with the law and they avoided a malpractice suit, so it's a win-win. The only loser is the dead woman.
They can say whatever they want to in dicta, but the actual opinion tells a different story. A physician telling a patient that isn't magic language that shields him from criminal liability. Not only that, but a physician with a good-faith belief that an abortion is necessary isn't shielded from liability. you can point to whatever snippets of language you want to, but the court made it crystal clear that it's an objective test based on what a reasonable physician would have done. And, as I said in my first post, that means it's a question of fact for a jury and you're expert will battle it out with their expert, and you hope they believe your expert. And if you lose, the consequences are similar to those of being convicted of non-capital murder. Unless there's a well-recognized, bright line exception, I don't understand how you can argue with a straight fact that doctors should get within 200 miles of a case like that. Would you commit a crime that came with serious jail time if your boss thought you'd have a good defense?
This is the reasoning of a cartoon villain from an anti-capitalist morality play.
You said the Supreme Court declined to offer any further guidance. They were, in fact, pretty clear. That statement, whether you characterize it as "dicta" or not, was part of the actual opinion.
Either the offered standard -- good-faith belief -- isn't reviewable, in which it case it creates a liar's exception to the abortion law. Or it is reviewable, in which case there's the same issue as with the actual reasonable physician standard. Reasonable professional judgement is demanded of doctors (and other licensed professionals) all the time; it comes with the territory.
And your implication that woke doctors are intentionally letting pregnant women die so they can make a political point about a law they don't like is somehow more plausible?
And in medicine, getting sued for malpractice also comes with the territory, especially OB/GYN. Over 60% of this population of doctors has been accused, at some point in their career, of not exercising reasonable judgment. And the vast majority of these cases settle, because the attorneys damn well know that no matter how good you think your argument is the person at the other table thinks their argument is pretty good too, and there's no way of knowing what the jury is going to do. Luckily, in malpractice, the stakes aren't that high. Your carrier will pay out a settlement and your rates will go up, but you won't be doing any jail time, and it's unlikely you'd even lose your job. And yet doctors still provide all kinds of treatment and testing they deem unnecessary because they know the plaintiff's expert is going to say they should have done it. No doctor is going to take a risk where the only thing standing between him and a 99 year prison sentence is convincing 12 people who know nothing about medicine that his actions are "reasonable".
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I think one of the posters here had a very interesting point on one of the abortion cases that the choice facing hospital administrators may in loudly published cases look more like deciding whether to provide expensive emergency treatment to likely-uninsured pregnant patients (as begrudgingly required without payment by federal law), or discharging actively-septic patients while blaming state lawmakers for tying their hands. I don't have faith that the bean counters running the show universally have patient interests first in mind regardless of financial incentives.
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