The justices will soon have to resolve if (and when) federal law allows emergency room doctors to perform otherwise unlawful abortions—with implications that could go well beyond reproductive rights
Thanks for the great, detailed explanation of the full ramifications of this Texas decision. The fact that Texas filed its lawsuit three days after the Guidance was issued simply demonstrates that they are focused on politics, not the law.
“Forgive me, but this is all just nuts” sums it up quite well.
After all we’ve seen and heard about the application of the abortion bans and how devastating these laws are for pregnant people, you’d think lawmakers would fix it. Nope. They double-down and talk about more restrictions and a national ban.
The anti-abortion folks keep moving the goal posts. They say “let the states decide,” but when we vote to keep abortion safe, legal, and accessible, they won’t accept that the vast majority of us do not want to live in their dystopian world. One example (of many): They are proposing travel bans so women can’t leave their home state to seek an abortion.
The anti-abortion crowd claims they speak for the unborn who have no voice, a laudable goal (on paper), but in doing so they deny medical care even to women who have no hope of delivering a viable baby. There is no point in denying an abortion when there is no “unborn” to save unless cruelty is your point. Many pregnant women already have children, if she is denied adequate medical care (an abortion) and she dies, who will raise her existing children?
Even those who have miscarried are denied an abortion and left to suffer, risk permanent impairment, and death. They are told to wait to become “sick enough” to be treated. Really? Medicine doesn’t follow an exact timeline. Waiting for a patient to stabilize can be sound, but waiting for a patient to worsened can be fatal.
Lawmakers (and it’s mostly white male Republicans) who support abortion restrictions have demonstrated they cannot be trusted to protect women, especially pregnant women. If men could get pregnant we wouldn’t be debating whether abortion should be legal, there would be vending machines selling abortion pills on every corner, like Starbucks, they’d be everywhere and you could crawl there.
Abortion bans are about control of women and telling us how to live our lives. With the SC’s Dobbs ruling, women become second class citizens, incubators with legs and denied control over our own bodies.
We trust women to raise children. I trust women to decide when, or if, they have children. I am not alone. The vast majority of us do.
Abortion on demand and without apology (because pregnancy complications can occur at any time during pregnancy and women know what’s best for them and their families). No woman stays pregnant for months on end and then, on a whim, ends her pregnancy for no reason.
It’s no one else’s business what medical care a woman and her doctor decide is best for her. It doesn’t matter if it’s in the first month or the 9th month. I trust women because they are in the best position to know what is best FOR THEM.
We cannot tolerate laws that threaten doctors with criminal penalties when they are following standards of practice. Qualified doctors should never be forced to consult //lawyers// to determine the kind of medical care permitted. Frankly, if anyone needs this explained then they are too stupid to serve in public office and should resign immediately.
They hear the same stories we do and the anti-abortion folks are still unwilling to fix it. They insult all of us by saying the laws are working as intended. This leads me to the conclusion that what “pro-life” really means is “Let the women die.” If it doesn’t, then why won’t they fix it?
I plan to vote blue in 2024 for candidates who will protect our democracy at all costs, who respect women and will support women’s reproductive rights.
It seems clear that in this country there is a substantial subset of people in power who want to convert whatever guidance they may have in their own lives to control their own life decisions into laws to control the behavior of everyone else.
I agree and especially with your last sentence: "If men could get pregnant we wouldn’t be debating whether abortion should be legal, there would be vending machines selling abortion pills on every corner, like Starbucks, they’d be everywhere and you could crawl there."
As a retired RN of 37 years, this is an absolute nightmare. Having worked years in critical care and a little time in ER, I can't imagine what the medical professions are dealing with now. Practicing under threat of prosecution. You think there's a medical shortage now...who in their right mind would want to be an OB/GYN now or the nurse assisting. So sad and maddening. I feel for all women of childbearing age. They should have the right to make their own medical decisions. Keep the government and Court off our bodies, and let us decide the right treatment, along with our doctor, for ourselves.
Talk to any OB-GYN, or mother. The reason a woman remains pregnant into the 5th or 6th month is that she wants the child. But fetal abnormalities are often not observable until the 2nd trimester. (At least in blue states, late termination goes straight through the Hospital Ethics Cmte.) Overall, abortion should be rare because we prevent unwanted pregnancies in the first place, not because we guilt-trip women into continuing crisis pregnancies. A civilized society does not force any woman to carry in her womb something she does not want. And if, according to the Starr Inquisitor, a consensual affair is sufficient for removing a President from office, why is an accusation of intoxicated rape not sufficient for merely denying BK a promotion?
"I thought Brett was going to kill me." -- Christine Ford
"...emergency room doctors should not have to call a lawyer before deciding if a patient’s condition is sufficiently serious to require the type of stabilizing treatment that federal law demands." Personally, I'd like to have emergency room doctors call a member of the state legislature and get that individual to personally say whether the treatment is demanded under federal law, or if the treatment meets any state law definition of necessary to save the life of the mother. If these mostly white, Christian males want to control women how about some accountability. And, why isn't there any accompanying laws in the anti-abortion states to punish the sperm donor. No woman has ever gotten pregnant without a sperm donor. If the pregnancy is unwanted, or dangerous for the woman, why aren't there consequences for the man. Of course, we all know that would require believing the woman that the pregnancy is unwanted, or even dangerous, and no body of men want to believe a woman - see the history of rape and sexual assault, why most cases are never reported and rarely successful. Legislators hide behind religion to control women. This case is also part of the road to a national abortion ban and demonstrates anti-women and anti-science beliefs. It also shows how crucial it is to vote on the state and local levels, as well as in federal elections. Even if you are against abortion, do you really want a bunch of (mostly) lawyers dictating your medical care?
If you were to call a legislator and make the inquiry that you describe above, he undoubtedly would say that he should not be required to make the decision, in any specific case, that you are asking him to make, that such decisions must be made by the people involved, except the pregnant woman.
These Fifth Circuit judges are every bit as cruel as the legislators that enacted the abortion bans. In their eyes, women are no more than ambulatory wombs, deserving of no right to medical care. How else can we explain their belief that the rights of a non-viable fetus always trump the mother’s right to life, liberty and the pursuit of happiness? Really? No abortion in the case of an ectopic pregnancy?
It's more than that, or not exactly that, maybe. Paxton and company aren't just indifferent to or unwilling to acknowledge the women in question, the possiblity that some pregnant woman's needs might conflict with the state legislature's assumptions about reality. They're actively hostile, to the women themselves and to anyone else who even suggests that the facts don't align with their instructions. I'm surprised Paxton hasn't tried to arrest people in the state Cox fled to. Perhaps the worry is why I can't find anyone naming the state, or perhaps such measures are already in the works.
It's baffling. Until Paxton made his threats, I had assumed we were dealing principally with indifference, that explicit, premeditated hostility to the specific women who found themselves forced into these extremely predictable situations would be the province of, at most, a few dozen insane state legislators and sheriffs. But no, overt hostility to the very concept of misfortune is apparently a perfectly acceptable position for a third of the people in this nation I love so much. Fucking klansmen know they have to disguise their hate! They hide it behind dehumanizing lies about what they're doing, or the people they're doing it to. But no, Ken Paxton is completely open in his hatred for Kate Cox and anyone else who reminds him of her existence, for she has *dared* to be the mother of a child she wanted, but who was dead before they could even be born.
Thanks for explaining EMTALA's impact on state abortion bans (and how to pronounce it!). Abortion is a hard enough topic without regulatory confusion. I hope it's not being used as a wedge for other laws to erode EMTALA completely. Time will tell.
I'd like to note a legal distinction.
The word "born" is in Amdt XIV. It's when citizenship attaches, implying that whenever medical let alone spiritual life may begin, in the United States legal life, "personhood," begins at birth. Even so far as a pregnant woman is carrying a second patient, only she has legal personhood with its rights, liberties, powers, and duties. Nonpersons can be granted privileges and protections but these bear less legal weight than attributes of personhood. If Texas wants to take this as far as it goes that's where it goes.
Steve, I asked a question on your last newsletter (but I was late to the party.) You suggested a majority of the Court might conclude that President Trump did engage in an insurrection. How, given that they are not triers of fact?
Good point Term. Appellate law gives difference to Trial court findings of Fact. Wreck did "engage" in "insurrection" against the 'CONSTITUTION'. That's the End of that BS.
My point was the opposite. How are all states then forced to adopt Colorado's findings? If someone is not qualified in one state, how can they be qualified in others?
Basically, because it's a double question. The question reserved for the trier of fact is, "What are the things that Trump did that have been alleged to amount to insurrection?" The other component of the question, where SCOTUS can basically do what it wants subject only to the loss of its privileged status as a trustworthy institution, is, "If Trump did this set of things, does that qualify as insurrection within the meaning of the 14th amendment?"
The Justices may feel themselves more or less forced to confront something like the question, "Does whipping up an angry mob on a pack of lies, pointing them at the Capitol, and then with great reluctance sitting on one's hands for four hours amount to insurrection?" If they answer "yes" to that, then SCOTeX or whoever is free to say "we think any desire to accompany the crowd was for the purpose of gladhanding and singing songs" or "we think he went home and took a nap" or some other set of claims that gets them below whatever specific set of facts (if any) SCOTUS decides amount to insurrection, but they can't say, "we see your definition of insurrection, SCOTUS, and we have decided it's wrong". If they do that, it'd probably amount to a tacit threat of civil war in the event of Trump's loss, but it still wouldn't quite rise to the level of overt declaration, and all the lawyers could continue to pretend that reality is an abstract or unknowable concept on which reasonable people can simply choose to disagree.
But then the entire country is bound by Colorado's finding of facts? Does that make sense? Or does each state do its own factfinding? I don't think people are appreciating the complexity of this.
I am curious. If doctors fail to follow medically prescribed standards in treating a pregnant patient for fear of these laws, can they still be sued for malpractice or in extreme cases, wrongful death? I should think malpractice insurers would have a big worry about this. What if they decide to stop insuring ER doctors?
….maybe? Nobody really knows one way or the other at this point. On one hand, how can state medical malpractice law hold doctors to a standard of care that the state might consider a crime, on the other hand, some of what we’re talking about has been the established professional standard of care for 50 years. Breaching the professional standard of care to the detriment of a patient’s health is still malpractice by definition, even if the breach occurred due to treatment being withheld out of fear of a states deranged abortion laws. The question of how this gets reconciled and what consequences arise from it is going to have far reaching effects for malpractice insurers, healthcare administrators, doctors, nurses, and the quality and availability of normal, professionally competent obstetric care in every backward state that does this, and all the women in these states and their children will suffer the risks and consequences of greater maternal and infant mortality, injuries, impairments, and other complications that arise completely unrelated to anything dealing with abortions. Who really knows what other unintended consequences await for us to discover in this chaos?
Where are the folks that want to hold the fathers accountable? How about vasectomies? How about letting doctors do what they are trained to do? Why do they want to kill us? I don't understand the cruelty perpetrated by these legislators with no medical training. How can EMTALA be implemented for our benefit?
It seems to me that AG Paxton's efforts here, and in the Cox case, belie representations to the courts in connection with the Texas Heartbeat Act that the State does not enforce that act and therefore cannot be sued to restrain its enforcement. Or perhaps his actions are ultra vires?
Thanks for the great, detailed explanation of the full ramifications of this Texas decision. The fact that Texas filed its lawsuit three days after the Guidance was issued simply demonstrates that they are focused on politics, not the law.
“Forgive me, but this is all just nuts” sums it up quite well.
After all we’ve seen and heard about the application of the abortion bans and how devastating these laws are for pregnant people, you’d think lawmakers would fix it. Nope. They double-down and talk about more restrictions and a national ban.
The anti-abortion folks keep moving the goal posts. They say “let the states decide,” but when we vote to keep abortion safe, legal, and accessible, they won’t accept that the vast majority of us do not want to live in their dystopian world. One example (of many): They are proposing travel bans so women can’t leave their home state to seek an abortion.
The anti-abortion crowd claims they speak for the unborn who have no voice, a laudable goal (on paper), but in doing so they deny medical care even to women who have no hope of delivering a viable baby. There is no point in denying an abortion when there is no “unborn” to save unless cruelty is your point. Many pregnant women already have children, if she is denied adequate medical care (an abortion) and she dies, who will raise her existing children?
Even those who have miscarried are denied an abortion and left to suffer, risk permanent impairment, and death. They are told to wait to become “sick enough” to be treated. Really? Medicine doesn’t follow an exact timeline. Waiting for a patient to stabilize can be sound, but waiting for a patient to worsened can be fatal.
Lawmakers (and it’s mostly white male Republicans) who support abortion restrictions have demonstrated they cannot be trusted to protect women, especially pregnant women. If men could get pregnant we wouldn’t be debating whether abortion should be legal, there would be vending machines selling abortion pills on every corner, like Starbucks, they’d be everywhere and you could crawl there.
Abortion bans are about control of women and telling us how to live our lives. With the SC’s Dobbs ruling, women become second class citizens, incubators with legs and denied control over our own bodies.
We trust women to raise children. I trust women to decide when, or if, they have children. I am not alone. The vast majority of us do.
Abortion on demand and without apology (because pregnancy complications can occur at any time during pregnancy and women know what’s best for them and their families). No woman stays pregnant for months on end and then, on a whim, ends her pregnancy for no reason.
It’s no one else’s business what medical care a woman and her doctor decide is best for her. It doesn’t matter if it’s in the first month or the 9th month. I trust women because they are in the best position to know what is best FOR THEM.
We cannot tolerate laws that threaten doctors with criminal penalties when they are following standards of practice. Qualified doctors should never be forced to consult //lawyers// to determine the kind of medical care permitted. Frankly, if anyone needs this explained then they are too stupid to serve in public office and should resign immediately.
They hear the same stories we do and the anti-abortion folks are still unwilling to fix it. They insult all of us by saying the laws are working as intended. This leads me to the conclusion that what “pro-life” really means is “Let the women die.” If it doesn’t, then why won’t they fix it?
I plan to vote blue in 2024 for candidates who will protect our democracy at all costs, who respect women and will support women’s reproductive rights.
It seems clear that in this country there is a substantial subset of people in power who want to convert whatever guidance they may have in their own lives to control their own life decisions into laws to control the behavior of everyone else.
I agree and especially with your last sentence: "If men could get pregnant we wouldn’t be debating whether abortion should be legal, there would be vending machines selling abortion pills on every corner, like Starbucks, they’d be everywhere and you could crawl there."
GOP rationales, and the Fifth Circuit, can best be summarized as "F*ck You, That's Why"
As a retired RN of 37 years, this is an absolute nightmare. Having worked years in critical care and a little time in ER, I can't imagine what the medical professions are dealing with now. Practicing under threat of prosecution. You think there's a medical shortage now...who in their right mind would want to be an OB/GYN now or the nurse assisting. So sad and maddening. I feel for all women of childbearing age. They should have the right to make their own medical decisions. Keep the government and Court off our bodies, and let us decide the right treatment, along with our doctor, for ourselves.
Talk to any OB-GYN, or mother. The reason a woman remains pregnant into the 5th or 6th month is that she wants the child. But fetal abnormalities are often not observable until the 2nd trimester. (At least in blue states, late termination goes straight through the Hospital Ethics Cmte.) Overall, abortion should be rare because we prevent unwanted pregnancies in the first place, not because we guilt-trip women into continuing crisis pregnancies. A civilized society does not force any woman to carry in her womb something she does not want. And if, according to the Starr Inquisitor, a consensual affair is sufficient for removing a President from office, why is an accusation of intoxicated rape not sufficient for merely denying BK a promotion?
"I thought Brett was going to kill me." -- Christine Ford
"...emergency room doctors should not have to call a lawyer before deciding if a patient’s condition is sufficiently serious to require the type of stabilizing treatment that federal law demands." Personally, I'd like to have emergency room doctors call a member of the state legislature and get that individual to personally say whether the treatment is demanded under federal law, or if the treatment meets any state law definition of necessary to save the life of the mother. If these mostly white, Christian males want to control women how about some accountability. And, why isn't there any accompanying laws in the anti-abortion states to punish the sperm donor. No woman has ever gotten pregnant without a sperm donor. If the pregnancy is unwanted, or dangerous for the woman, why aren't there consequences for the man. Of course, we all know that would require believing the woman that the pregnancy is unwanted, or even dangerous, and no body of men want to believe a woman - see the history of rape and sexual assault, why most cases are never reported and rarely successful. Legislators hide behind religion to control women. This case is also part of the road to a national abortion ban and demonstrates anti-women and anti-science beliefs. It also shows how crucial it is to vote on the state and local levels, as well as in federal elections. Even if you are against abortion, do you really want a bunch of (mostly) lawyers dictating your medical care?
If you were to call a legislator and make the inquiry that you describe above, he undoubtedly would say that he should not be required to make the decision, in any specific case, that you are asking him to make, that such decisions must be made by the people involved, except the pregnant woman.
These Fifth Circuit judges are every bit as cruel as the legislators that enacted the abortion bans. In their eyes, women are no more than ambulatory wombs, deserving of no right to medical care. How else can we explain their belief that the rights of a non-viable fetus always trump the mother’s right to life, liberty and the pursuit of happiness? Really? No abortion in the case of an ectopic pregnancy?
It's more than that, or not exactly that, maybe. Paxton and company aren't just indifferent to or unwilling to acknowledge the women in question, the possiblity that some pregnant woman's needs might conflict with the state legislature's assumptions about reality. They're actively hostile, to the women themselves and to anyone else who even suggests that the facts don't align with their instructions. I'm surprised Paxton hasn't tried to arrest people in the state Cox fled to. Perhaps the worry is why I can't find anyone naming the state, or perhaps such measures are already in the works.
It's baffling. Until Paxton made his threats, I had assumed we were dealing principally with indifference, that explicit, premeditated hostility to the specific women who found themselves forced into these extremely predictable situations would be the province of, at most, a few dozen insane state legislators and sheriffs. But no, overt hostility to the very concept of misfortune is apparently a perfectly acceptable position for a third of the people in this nation I love so much. Fucking klansmen know they have to disguise their hate! They hide it behind dehumanizing lies about what they're doing, or the people they're doing it to. But no, Ken Paxton is completely open in his hatred for Kate Cox and anyone else who reminds him of her existence, for she has *dared* to be the mother of a child she wanted, but who was dead before they could even be born.
It's not clear, at least to me, that people like Ken Paxton want cruelty, but it is clear that they want total, unfettered control over everyone.
Thanks for explaining EMTALA's impact on state abortion bans (and how to pronounce it!). Abortion is a hard enough topic without regulatory confusion. I hope it's not being used as a wedge for other laws to erode EMTALA completely. Time will tell.
I'd like to note a legal distinction.
The word "born" is in Amdt XIV. It's when citizenship attaches, implying that whenever medical let alone spiritual life may begin, in the United States legal life, "personhood," begins at birth. Even so far as a pregnant woman is carrying a second patient, only she has legal personhood with its rights, liberties, powers, and duties. Nonpersons can be granted privileges and protections but these bear less legal weight than attributes of personhood. If Texas wants to take this as far as it goes that's where it goes.
Steve, I asked a question on your last newsletter (but I was late to the party.) You suggested a majority of the Court might conclude that President Trump did engage in an insurrection. How, given that they are not triers of fact?
Good point Term. Appellate law gives difference to Trial court findings of Fact. Wreck did "engage" in "insurrection" against the 'CONSTITUTION'. That's the End of that BS.
My point was the opposite. How are all states then forced to adopt Colorado's findings? If someone is not qualified in one state, how can they be qualified in others?
Basically, because it's a double question. The question reserved for the trier of fact is, "What are the things that Trump did that have been alleged to amount to insurrection?" The other component of the question, where SCOTUS can basically do what it wants subject only to the loss of its privileged status as a trustworthy institution, is, "If Trump did this set of things, does that qualify as insurrection within the meaning of the 14th amendment?"
The Justices may feel themselves more or less forced to confront something like the question, "Does whipping up an angry mob on a pack of lies, pointing them at the Capitol, and then with great reluctance sitting on one's hands for four hours amount to insurrection?" If they answer "yes" to that, then SCOTeX or whoever is free to say "we think any desire to accompany the crowd was for the purpose of gladhanding and singing songs" or "we think he went home and took a nap" or some other set of claims that gets them below whatever specific set of facts (if any) SCOTUS decides amount to insurrection, but they can't say, "we see your definition of insurrection, SCOTUS, and we have decided it's wrong". If they do that, it'd probably amount to a tacit threat of civil war in the event of Trump's loss, but it still wouldn't quite rise to the level of overt declaration, and all the lawyers could continue to pretend that reality is an abstract or unknowable concept on which reasonable people can simply choose to disagree.
But then the entire country is bound by Colorado's finding of facts? Does that make sense? Or does each state do its own factfinding? I don't think people are appreciating the complexity of this.
I am curious. If doctors fail to follow medically prescribed standards in treating a pregnant patient for fear of these laws, can they still be sued for malpractice or in extreme cases, wrongful death? I should think malpractice insurers would have a big worry about this. What if they decide to stop insuring ER doctors?
….maybe? Nobody really knows one way or the other at this point. On one hand, how can state medical malpractice law hold doctors to a standard of care that the state might consider a crime, on the other hand, some of what we’re talking about has been the established professional standard of care for 50 years. Breaching the professional standard of care to the detriment of a patient’s health is still malpractice by definition, even if the breach occurred due to treatment being withheld out of fear of a states deranged abortion laws. The question of how this gets reconciled and what consequences arise from it is going to have far reaching effects for malpractice insurers, healthcare administrators, doctors, nurses, and the quality and availability of normal, professionally competent obstetric care in every backward state that does this, and all the women in these states and their children will suffer the risks and consequences of greater maternal and infant mortality, injuries, impairments, and other complications that arise completely unrelated to anything dealing with abortions. Who really knows what other unintended consequences await for us to discover in this chaos?
Where are the folks that want to hold the fathers accountable? How about vasectomies? How about letting doctors do what they are trained to do? Why do they want to kill us? I don't understand the cruelty perpetrated by these legislators with no medical training. How can EMTALA be implemented for our benefit?
It seems to me that AG Paxton's efforts here, and in the Cox case, belie representations to the courts in connection with the Texas Heartbeat Act that the State does not enforce that act and therefore cannot be sued to restrain its enforcement. Or perhaps his actions are ultra vires?