On abortion

[All-American]

Well I'll let you parse the legal definition of it. But there is one reason why that mother is dead. The abortion law that didn't allow medical professionals treat her with the standard of care.

There isn’t a legal definition. That’s the point.

The abortion law didn’t stop the medical professionals.

[Northwestcoug]

There isn’t a legal definition. That’s the point.

The abortion law didn’t stop the medical professionals.

Hold up. Yes it did. The law prevented them from medically or surgically terminating the pregnancy as long as there was a heartbeat. It gave a bullshit 'medical emergency' clause that wasn't defined, but that was most likely a feature and not a bug. Once the heart stopped, the doctors induced the abortion. But it was too late to prevent the infection that killed the mother.

I'm really not understanding your point. It feels like one of those LSAT logic questions that I bombed.

[All-American]

Hold up. Yes it did. The law prevented them from medically or surgically terminating the pregnancy as long as there was a heartbeat. It gave a bullshit 'medical emergency' clause that wasn't defined, but that was most likely a feature and not a bug. Once the heart stopped, the doctors induced the abortion. But it was too late to prevent the infection that killed the mother.

I'm really not understanding your point. It feels like one of those LSAT logic questions that I bombed.

No. The law did not prevent the doctors from performing the procedure at that point.

[Northwestcoug]

No. The law did not prevent the doctors from performing the procedure at that point.

Well I guess I and others have it wrong.

Please explain to me how the law that bans abortion procedures when a heartbeat can be detected didn't prevent those doctors performing the abortion before the heartbeat stopped. With the correct assumption that there wasn't a medical emergency during that time.

[All-American]

Well I guess I and others have it wrong.

Please explain to me how the law that bans abortion procedures when a heartbeat can be detected didn't prevent those doctors performing the abortion before the heartbeat stopped. With the correct assumption that there wasn't a medical emergency during that time.

It was a medical emergency.

I think you actually agree with that. You claimed earlier in this thread that there “technically” wasn’t a medical emergency. Why did you feel the need to qualify your statement with the word “technically”? Unless I am mistaken, you believe that there was an exigent circumstance that threatened serious harm if not immediately addressed. That’s a medical emergency.

The lack of a statutory definition doesn’t call that into question. In fact, it is the opposite. When you have a criminal code, you have to draw clear lines or else the statute is unenforceable (remember the rule of length from LSAT prep?). I’d be interested to know if any doctor in Texas has ever had their judgment that a condition constituted a medical emergency for purposes of applying the exception called into question. (Not that it would matter in this case, though, where frankly it’s not a close call.)

[All-American]

One other thing just to gild the lily. Note that the statute does not condition the exception on the existence of a medical emergency. The heartbeat rule does not apply “if a physician believes a medical emergency exists that prevents compliance with this subchapter.” That is a subjective standard, not an objective one. You have to show that the physician was not only wrong but didn’t even believe he was in the right.

[All-American]

I guess one other thing to clarify. You, I, and the article you cited each said the statute doesn’t define what constitutes a medical emergency. There IS a definition, but it isn’t very, well, definite:

“‘Medical emergency’ means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

All the points above still apply. It’s a subjective standard governed by a physician’s belief that the woman is being placed in serious risk of harm if action is not taken. The statute did not prevent an abortion in this case.

[LVAllen]

I guess one other thing to clarify. You, I, and the article you cited each said the statute doesn’t define what constitutes a medical emergency. There IS a definition, but it isn’t very, well, definite:

“‘Medical emergency’ means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

All the points above still apply. It’s a subjective standard governed by a physician’s belief that the woman is being placed in serious risk of harm if action is not taken. The statute did not prevent an abortion in this case.

She was stable. She didn't show signs of infection at the moment. There was a fetal heartbeat. Do those conditions, by themselves, place the women in danger, or is it required to have complications that poses a danger? It seems that doctors who lived under the threat of prosecution chose to wait for signs of complications.

Though proponents insist that the laws protect both the life of the fetus and the person carrying it, in practice, doctors have hesitated to provide care under threat of prosecution, prison time and professional ruin

Abortion bans put doctors in an impossible position, she said, forcing them to decide whether to risk malpractice or a felony charge. After her state enacted one of the strictest bans in the country, she also waited to offer interventions in cases like Barnica’s until the fetal heartbeat stopped or patients showed signs of infection, praying every time that nothing would go wrong.

I firmly believe the chilling effect on doctors is and remains the goal, even in states where "life of the mother" is a purported exception. All it takes to make doctors delay treatment is the "danger" of a Texas DA with a wild hair up their rear who could exercise his/her considerable prosecutorial discretion to go after an abortion provider.

[All-American]

She was stable. She didn't show signs of infection at the moment. There was a fetal heartbeat. Do those conditions, by themselves, place the women in danger, or is it required to have complications that poses a danger? It seems that doctors who lived under the threat of prosecution chose to wait for signs of complications.





I firmly believe the chilling effect on doctors is and remains the goal, even in states where "life of the mother" is a purported exception. All it takes to make doctors delay treatment is the "danger" of a Texas DA with a wild hair up their rear who could exercise his/her considerable prosecutorial discretion to go after an abortion provider.

NorthwestCoug's assertion, which I do not question, is that the standard of care at that point is to go forward with the procedure, and that waiting to perform the procedure falls below the established standard of care. To me, that says that delaying the procedure disregards a known risk of harm. That's the reason we are outraged by this situation, right?

If it is that obvious that the procedure should have been performed without delay (and everybody here seems to agree that it is), then the statute gives the avenue to do it.

[LVAllen]

NorthwestCoug's assertion, which I do not question, is that the standard of care at that point is to go forward with the procedure, and that waiting to perform the procedure falls below the established standard of care. To me, that says that delaying the procedure disregards a known risk of harm. That's the reason we are outraged by this situation, right?

If it is that obvious that the procedure should have been performed without delay (and everybody here seems to agree that it is), then the statute gives the avenue to do it.

Except a known risk of harm is not the same as the patient currently being in danger of dying or substantial bodily impairment. The standard of care doesn't require that level of danger before acting. The statute does. So there's tension.

The doctors I've known are generally as risk-averse as I am. They don't want to drive with one wheel over the edge of the cliff. Abortion bans seem to require them to do just that upon peril of prosecution, to their patient's detriment.

[Northwestcoug]

It was a medical emergency.

I think you actually agree with that. You claimed earlier in this thread that there “technically” wasn’t a medical emergency. Why did you feel the need to qualify your statement with the word “technically”? Unless I am mistaken, you believe that there was an exigent circumstance that threatened serious harm if not immediately addressed. That’s a medical emergency.

The lack of a statutory definition doesn’t call that into question. In fact, it is the opposite. When you have a criminal code, you have to draw clear lines or else the statute is unenforceable (remember the rule of length from LSAT prep?). I’d be interested to know if any doctor in Texas has ever had their judgment that a condition constituted a medical emergency for purposes of applying the exception called into question. (Not that it would matter in this case, though, where frankly it’s not a close call.)

No, it wasn't a medical emergency at the time when the abortion should have been performed. She was stable.

I guess I used the word 'technically' poorly. I was trying to explain that throughout that admission she remained stable and did not meet any term that would be called 'medical emergency'. It was only after she returned with an overwhelming infection that it was an emergency. An impending emergency, if you will. But given how the law is written those doctors knew the liability they were under.

I do not remember details about my LSAT prep. In a state of worry about my future I spent 3 weeks studying for it. All I remember is I did terribly in those logic games or whatever they were called. It was a tender mercy that I did poorly, effectively ending any law career.

[Northwestcoug]

NorthwestCoug's assertion, which I do not question, is that the standard of care at that point is to go forward with the procedure, and that waiting to perform the procedure falls below the established standard of care. To me, that says that delaying the procedure disregards a known risk of harm. That's the reason we are outraged by this situation, right?

If it is that obvious that the procedure should have been performed without delay (and everybody here seems to agree that it is), then the statute gives the avenue to do it.

I'm sure I'm missing lawyerly nuance here. But can't you see that both the doctors and the health care entity realized there was significant liability in terminating that pregnancy before the heartbeat stopped, because the law was written in a way that invited prosecution (either intentioned or not)? Was everyone here just not seeing how they could navigate this case without getting prosecuted, as you seem to imply?

Yes, the standard of care is to terminate a pregnancy when labor has started with a fetus that has no reasonable chance of survival. This is irrespective of the medical status of the mother. Certainly it should be done before significant damage is done to the mother's health. But the statute outlaws a timely abortion until it becomes an emergency, so long as a heartbeat is present. The current law doesn't mention the standard of care.

I am befuddled.

[All-American]

No, it wasn't a medical emergency at the time when the abortion should have been performed. She was stable.

I guess I used the word 'technically' poorly. I was trying to explain that throughout that admission she remained stable and did not meet any term that would be called 'medical emergency'. It was only after she returned with an overwhelming infection that it was an emergency. An impending emergency, if you will. But given how the law is written those doctors knew the liability they were under.

I do not remember details about my LSAT prep. In a state of worry about my future I spent 3 weeks studying for it. All I remember is I did terribly in those logic games or whatever they were called. It was a tender mercy that I did poorly, effectively ending any law career.

Yeah, I always wonder whether to give someone who passes the bar congratulations or condolences.

In the end, the statute says the doctor can go forward with the procedure if the doctor believes there is a serious risk of harm. This was not a case that should have been dismissed as a non-serious risk. Any doctor evaluating this situation and determining that the risk was serious and constituted an exception to the heartbeat rule would have been supported by the statute-- and frankly, I doubt his judgment would have been called into question by any prosecuting authority.

[LVAllen]

Yeah, I always wonder whether to give someone who passes the bar congratulations or condolences.

In the end, the statute says the doctor can go forward with the procedure if the doctor believes there is a serious risk of harm. This was not a case that should have been dismissed as a non-serious risk. Any doctor evaluating this situation and determining that the risk was serious and constituted an exception to the heartbeat rule would have been supported by the statute-- and frankly, I doubt his judgment would have been called into question by any prosecuting authority.

No, it doesn't. Let's look at the actual statute, as effective on September 1, 2021: Texas Health and Safety Code 170A, (https://law.justia.com/codes/texas/2...tion-170a-002/):

Sec. 170A.002. PROHIBITED ABORTION; EXCEPTIONS.

(a) A person may not knowingly perform, induce, or attempt an abortion.

(b) The prohibition under Subsection (a) does not apply if:

(1) the person performing, inducing, or attempting the abortion is a licensed physician;

(2) in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced; and

(3) the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create:

(A) a greater risk of the pregnant female's death; or

(B) a serious risk of substantial impairment of a major bodily function of the pregnant female.

(c) A physician may not take an action authorized under Subsection (b) if, at the time the abortion was performed, induced, or attempted, the person knew the risk of death or a substantial impairment of a major bodily function described by Subsection (b)(2) arose from a claim or diagnosis that the female would engage in conduct that might result in the female's death or in substantial impairment of a major bodily function.

(d) Medical treatment provided to the pregnant female by a licensed physician that results in the accidental or unintentional injury or death of the unborn child does not constitute a violation of this section.

Okay, so we are clear that there is an absolute ban on abortions in Texas, with a limited exception. Under Section 245.002, which defines abortion, the removal of a dead fetus whose death was caused by spontaneous abortion, i.e. miscarriage, doesn't count. So the moment the fetal heart monitors no longer register anything, it's not an abortion any more. The doctor must test for a fetal heart beat, and must record how and when the test was performed. The requirement to test for a fetal heart beat might be removed in the case of a medical emergency.

Under 170A, she would have needed to have a life-threatening physical condition. That life-threatening physical condition would have needed to be caused by the pregnancy. That condition also would have needed to place her at risk of death of serious impairment. All these things would have needed to occur before an abortion could legally occur, whether or not an abortion was the standard of care.

She was stable. She didn't have a life-threatening condition. What she had was an active miscarriage that, if prolonged, increased the possibility of an infection that could potentially be a life-threatening condition. But at the moment the doctors had her in the hospital, there were no signs of infection, just the possibility of one. She couldn't even say "I'm going to kill myself if you force me to keep this nonviable fetus" because 170A.002(c) forecloses that possibility. Without that life-threatening condition, no exception applies. Does a 40-hour labor qualify as a life-threatening condition? The doctors couldn't even provide medication that would speed up the process.

So the options that existed (without violating the law) were wait for the fetus to no longer count as an abortion, or wait for Mom to have a condition that placed her at real risk of dying. Until she had that condition, the potential "serious risk of harm" didn't matter. Did that violate the standard of care according to the doctors quoted in the article? Absolutely. Does that matter to 170A compliance? Not a bit.

[All-American]

No, it doesn't. Let's look at the actual statute, as effective on September 1, 2021: Texas Health and Safety Code 170A, (https://law.justia.com/codes/texas/2...tion-170a-002/):



Okay, so we are clear that there is an absolute ban on abortions in Texas, with a limited exception. Under Section 245.002, which defines abortion, the removal of a dead fetus whose death was caused by spontaneous abortion, i.e. miscarriage, doesn't count. So the moment the fetal heart monitors no longer register anything, it's not an abortion any more. The doctor must test for a fetal heart beat, and must record how and when the test was performed. The requirement to test for a fetal heart beat might be removed in the case of a medical emergency.

Under 170A, she would have needed to have a life-threatening physical condition. That life-threatening physical condition would have needed to be caused by the pregnancy. That condition also would have needed to place her at risk of death of serious impairment. All these things would have needed to occur before an abortion could legally occur, whether or not an abortion was the standard of care.

She was stable. She didn't have a life-threatening condition. What she had was an active miscarriage that, if prolonged, increased the possibility of an infection that could potentially be a life-threatening condition. But at the moment the doctors had her in the hospital, there were no signs of infection, just the possibility of one. She couldn't even say "I'm going to kill myself if you force me to keep this nonviable fetus" because 170A.002(c) forecloses that possibility. Without that life-threatening condition, no exception applies. Does a 40-hour labor qualify as a life-threatening condition? The doctors couldn't even provide medication that would speed up the process.

So the options that existed (without violating the law) were wait for the fetus to no longer count as an abortion, or wait for Mom to have a condition that placed her at real risk of dying. Until she had that condition, the potential "serious risk of harm" didn't matter. Did that violate the standard of care according to the doctors quoted in the article? Absolutely. Does that matter to 170A compliance? Not a bit.

This actually isn't the statute in question. You are citing Section 170a. The section we've been looking at is 171.203, 171.204, and 171.205.

Here is the text of 171.205:

Sec. 171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a) Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.

(b) A physician who performs or induces an abortion under circumstances described by Subsection (a) shall make written notations in the pregnant woman's medical record of:

(1) the physician's belief that a medical emergency necessitated the abortion; and

(2) the medical condition of the pregnant woman that prevented compliance with this subchapter.

(c) A physician performing or inducing an abortion under this section shall maintain in the physician's practice records a copy of the notations made under Subsection (b).

The definition of "medical emergency" is found in Section 171.002(3):

"Medical emergency" means a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.

A life-threatening condition is not required under this statute (or the one you cited, for that matter). The statute allows an abortion to proceed if the doctor believes the woman is in danger of a serious risk of substantial impairment of a major bodily function.

This was a serious risk of harm. The doctors clearly could have gone forward with the procedure under this circumstance and been in compliance with the statute.