On abortion

[Northwestcoug]

Another in a series of anti-abortion laws preventing standard of care treatment for maternal health, this time in Arkansas:

On her fourth morning in the hospital, Waldorf was sitting on the toilet when she felt something heavy fall. There was so much blood, she couldn’t see what it was. She thought it was the baby, but a nurse confirmed it was a blood clot, 3 inches across.

Waldorf’s water had broken. All morning, she watched the amniotic fluid drain out of her. Now there was virtually no chance the fetus’s lungs would develop to reach the edge of viability in seven weeks. There was only the risk of infection, growing every passing hour.

She was convinced that this meant the doctors would finally have to induce her to avoid infection. But after confirming that her fetus still had heart tones, the OB-GYN on duty, Dr. Britte Smith, said she couldn’t induce yet. First she’d need to consult the hospital’s risk-management team.

“Oh,” Waldorf thought. “I’m a liability.”

Smith returned about two hours later, Waldorf recalled, and told her she had two options: She could remain under observation at the hospital, or she could get into her car and drive nearly four hours to Kansas, a state with no abortion ban, where doctors could induce her. The hospital would not authorize a transfer or arrange to send her in an ambulance, and it offered no explanation for why.

And this is rich. She was offered the option of leaving 'against medical advice' with very specific verbiage so that the hospital wasn't on the hook for the bill of that very medically necessary transfer:

She estimates the lost income, startup debt and out-of-pocket medical costs from her ordeal at more than $147,000. Included in the tally was more than $5,000 for the ambulance ride to Kansas, which Washington Regional was unwilling to pay for.

In a letter to Duane, the hospital’s general counsel, Thomas Olmstead, used Waldorf’s words against her — the words Large had asked her to repeat.

The ambulance transfer happened because of Waldorf’s “specific request,” he wrote, and not because the attending physician believed that Waldorf needed a “higher level of care.”

“It is simply not reasonable for you to make demand that WRMC assume responsibility for the cost of a patient-directed transfer,” he wrote. Olmstead has since been promoted to executive leadership. He did not respond to a request for comment.

https://www.propublica.org/article/a...content=thread

At least Texas has amended their anti-abortion laws to allow for standard of care treatment in similar scenarios (highlighted a couple of years ago in this thread

[YOhio]

This is a really interesting trend. It shows that abortions have increased about 5% post-Dobbs, but the method of abortion has shifted significantly. Pre-Dobbs it was about 50/50 split between procedure and medication. Now it's about 35/65, with much of the medication being prescribed via telehealth. 1 in 10 of all abortions were from pills prescribed by telehealth to patients in states where abortion is banned. I wonder why the number of abortions increased. It might be merely a reflection of better data collection. Maybe Dobbs pushed more people to the pro-choice side. Or maybe it caused women to be more open to abortion, if only due to outrage at the decision. To me it kind of looks like the worst of all worlds. More abortions isn't great. Unsupervised consumption of abortion pills seems dangerous. All the insane restrictions on physician action for a miscarriage or ectopic pregnancy looks nothing like pro-life to me. Maybe SCOTUS should take a mulligan on that one.

https://apnews.com/article/abortion-...c9fbc77a385413

[Northwestcoug]

This article has it all. The problems with the Hyde amendment (especially after the repeal of Roe v Wade), an insurance company going out of its way to deny medically necessary care, and the inevitable consequences when abortion isn't considered health care.

https://www.propublica.org/article/e...ropublica-bsky

tldr: a woman in the Coast Guard had a miscarriage, tried standard medical therapy to complete the abortion, it didn't work, doc scheduled a D&E (standard of care) but hours before surgery Tricare said it wouldn't cover the cost (at least partly due to very strict reading of Hyde amendment but no doubt also because of general insurance immorality). Woman loses lots of blood and gets the emergency D&E, and spends a week in recovery. there's also a couple of other instances where women were forced to pay for abortions even when fetus wasn't viable.

[Uncle Ted]

Another issue that the Dems blew it on...

Embedded Tweet

[BigFatMeanie]

A thought exercise:

Let's say that anti-abortion foes stipulate that stricter abortion laws will contribute to some quantity (let's call that quantity X) of death of women who would/could have lived had they obtained an abortion. Could abortion rights advocates also stipulate that stricter abortion laws would create some quantity of births of healthy children that would have otherwise been aborted (let's call that number Y)?

If Y ultimately exceeds X, could we not say that stricter abortion laws are better for society considering the country's current declining birth rate?

Basically this is the same approach we take to, say, seatbelt laws. We know that seatbelts probably contribute to X number of deaths, but they also contribute to saving Y number of lives. Y is greater than X so we conclude that seat belt laws are good for society as a whole and override the individual's right to choose aspect of the question. Why does the same approach not work with abortion laws?

[LVAllen]

The second part of ProPublica's stories on deaths caused by abortion bans:
https://www.propublica.org/article/n...ion-ban-emtala

Pretty unquestionable that this was a medical emergency. But the doctor at the 3rd hospital insisted on getting two fetal ultrasounds anyway.

In states with abortion bans, such patients are sometimes bounced between hospitals like “hot potatoes,” with health care providers reluctant to participate in treatment that could attract a prosecutor, doctors told ProPublica. In some cases, medical teams are wasting precious time debating legalities and creating documentation, preparing for the possibility that they’ll need to explain their actions to a jury and judge.

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. “Pretty consistently, people say, ‘Until we can be absolutely certain this isn’t a normal pregnancy, we can’t do anything, because it could be alleged that we were doing an abortion,’” said Dr. Tony Ogburn, an OB-GYN in San Antonio.

As I said before, even with "exceptions," the chilling effect on doctors' decision-making is the point. It doesn't matter if they would be covered. It doesn't matter if, in their medical opinion, an abortion is absolutely and immediately warranted. What matters is whether one notoriously anti-abortion lawyer in Austin will agree.

[Texas AG Paxton] has also made clear that he will bring charges against physicians for performing abortions if he decides that the cases don’t fall within Texas’ narrow medical exceptions.

[Uncle Ted]

LV and AA, are you billing hours on this?

[Northwestcoug]

LV and AA, are you billing hours on this?

[LVAllen]

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:



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

203, 204, and 205 don't matter unless the abortion is permissible in the first place. Under 170A, that requires a life-threatening physical condition that runs the risk of death or serious risk of substantial impairment of a major bodily function. Once Mom has one and an abortion becomes a legally available treatment, 203-205 dictate fetal heart monitoring that must take place before the abortion happens. 205 says that in an medical emergency, maybe we can dispense with the heart monitoring requirement. It does not, by itself, override the legal prohibition against abortion. We know that because 206 says so:

(b) This subchapter [meaning subchapter H, entitled "Detection of Fetal Heartbeat, consisting of sections 201-212] may not be construed to:

(1) authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter;

(2) wholly or partly repeal, either expressly or by implication, any other statute that regulates or prohibits abortion, including Chapter 6-1/2, Title 71, Revised Statutes. . .

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.

A life-threatening condition is the first requirement under 170A.002(b)(2) as well as under the definition of a medical emergency in 171.002(3). From Cox v. Texas: "Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function."

But let's set aside the disagreement about that. What major bodily function do you believe was at serious risk of substantial impairment here? I am not asking for a medical opinion, of course, just generally what you think was at risk so that the doctors could have found refuge from the prohibition.

I believe there is a difference between the risk of serious harm and the risk of substantial impairment of a major bodily function, but it seems like you believe they are the same. I agree that there was serious risk of harm arising from a potential infection. Until that infection became a reality and therefore posed a life-threatening condition, I don't believe it could have fallen under the "major bodily function" language.

[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.

[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 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.

[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.

[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.

[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.