Spike in ER Refusals of Pregnancy-Related Emergency Care After Dobbs Decision

A story from the Associated Press (AP, 4/19/24) reports that "more than two dozen complaints about emergency pregnancy care were lodged in the months after the Dobbs decision was unveiled. It is not known how many complaints were filed last year as the [AP's FOIA] request only asked for 2022 complaints and the information is not publicly available otherwise."

Individual refusals are stunningly heartless:

One woman miscarried in the lobby restroom of a Texas emergency room as front desk staff refused to check her in. Another woman learned that her fetus had no heartbeat at a Florida hospital, the day after a security guard turned her away from the facility. And in North Carolina, a woman gave birth in a car after an emergency room couldn’t offer an ultrasound. The baby later died. . . .

Consider what happened to a woman who was nine months pregnant and having contractions when she arrived at the Falls Community Hospital in Marlin, Texas, in July 2022, a week after the Supreme Court’s ruling on abortion. The doctor on duty refused to see her.

“The physician came to the triage desk and told the patient that we did not have obstetric services or capabilities,” hospital staff told federal investigators during interviews, according to documents. “The nursing staff informed the physician that we could test her for the presence of amniotic fluid. However, the physician adamantly recommended the patient drive to a Waco hospital.”

Ethics. “It is shocking, it’s absolutely shocking,” said Amelia Huntsberger, an OB/GYN in Oregon. “It is appalling that someone would show up to an emergency room and not receive care -- this is inconceivable.” Why is this happening? 

Pregnant patients have “become radioactive to emergency departments” in states with extreme abortion restrictions, said Sara Rosenbaum, a George Washington University health law and policy professor.

“They are so scared of a pregnant patient, that the emergency medicine staff won’t even look. They just want these people gone,” Rosenbaum said. 

Law. Aren't the refusals of pregnancy-related emergency care illegal? Well, the federal Emergency Medical Treatment and Active Pregnancy Act requires Medicare-contracted hospitals to stabilize the emergency medical condition when a woman comes to the emergency department in labor. It's a Condition of Participation in the Medicare program. It shouldn't be complicated, but it is.

On Wednesday, April 24, the Supreme Court will hear oral arguments in the case of Moyle v. United States, No. 23-726, in which the issue is "[w]hether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother, on the ground that the Emergency Medical Treatment and Labor Act preempts it." There are 45 amicus briefs in this case, an indication of the broad and strong interest in this case on both sides of the issue. (The district court's order in unpublished but can be found at pages 620-59 of Vol. 2 of the Joint Appendix filed in the Supreme Court matter.)

Texas Medical Board Publishes Proposed Rules Re: Exceptions to Texas's Abortion Ban

It took a strongly worded "suggestion" from the Texas Supreme Court (in its "know-nothing" opinion in the Kate Cox case [HealthLawBlog 12/12/23], but the TMB has finally published a proposed rule that provides some detail about the medical exceptions to the state's ban on abortions.

• Notice and Statement of TMB Chair
• Proposed Rule Amendment
• Official Form for Submission of Public Comments (optional but preferred method)

Most of the proposed rule is a cut-and-paste job, providing definitions of key terms such as:

1. abortion (copied from the Abortion Facilities Licensing law)
2. ectopic pregnancy (same)
3. reasonable medical judgment (copied from one of statutory bans on abortion)
4. medical emergency (same)
5. major bodily function (Texas Labor Code)

For 1, 2, and 5, the proposed rule would make clear that these definitions in other Texas codes apply to the medical exceptions to the abortion bans, which is guidance of a sort.

The remainder of the proposed rule describes the documentation that must be completed if an abortion is going to be performed when one of the exceptions applies as well as "the procedures that the Board will utilize in the event a complaint is received."

Biden's State of the Union Address: 13 Health Care Take-aways

Becker's Hospital Review takes a look at "13 healthcare takeaways" from President Biden's State of the Union address last evening. They include:

1. Expanding Medicare's drug price negotiation scope
2. Limiting drug costs
3. Expanding rebate requirement
4. Closing Medicaid coverage gap [for 10 states, including Texas, that haven't expanded eligibility]
5. Capping the cost of insulin
6. Abortion access
7. COVID-19
8. Affordable Care Act
9. Women's health
10. Taxes
11. Gun violence
12. PACT Act [Resources for Veterans]
13. ARPA-H (Advanced Research Projects Agency for Health ) 

JAMA On-line: Scorn for Approach of Texas Supreme Court and AG in Cases Involving Exceptions to Abortion Ban

In an excellent on-line (and free) commentary in JAMA (Jan. 22, 2024), three Harvard authors ask the question: "Whose Responsibility Is It to Define Exceptions in Abortion Bans?" (Disclosure: One of the authors, Louise King, M.D., J.D., is a friend and former colleague.)

The context for this question is not surprising:

Two Texas court cases were filed in late 2023 requesting clarification of the scope of the life exception. In the first case, In re State of Texas, the Texas Supreme Court indicated that clinicians or the Texas Medical Board have responsibility for defining that exception. In the second case, State [of Texas] v Zurawski, the Texas attorney general suggested during oral arguments that the scope would be defined through medical malpractice litigation.

In short, both the Texas Supreme Court and the AG punted on the essential and inescapable issue of the scope of "life exception" to Texas's abortion ban.

Is that a problem?

At first glance, the Texas Supreme Court and attorney general may seem to defer to the expertise of clinicians and the medical system for when abortions are necessary to save a patient’s life. But upon closer analysis, these proposed ways to define the exception’s scope are neither workable nor constitutional. Putting the burden of defining a crime on the person who may commit it violates the US Constitution. Demanding that patients be injured and sue for malpractice to clarify a criminal statute is beyond draconian.

Legislating medical care means clinicians could risk prosecution if they act according to their ethics and training and follow the standard of care. But if they decline to provide care out of fear of legal consequences, they risk injuring a patient and facing a potential malpractice claim. It is for these very reasons that professional societies like the American College of Obstetricians and Gynecologists and the American Medical Association argue strongly against all legislation that interferes with the patient-clinician relationship.2 Texas and other states that criminalize abortion should consider the tremendously harmful effect that comes from interfering in clinical decision-making. 

This short but compelling commentary is worth reading in its entirety. It offers a fine illustration of the hall of mirrors created by the Texas legislature, Supreme Court, and Attorney General. 

 

JAMA: Increased Depression & Anxiety in Trigger States After Dobbs Decision

In a free article in the Journal of the American Medical Association (JAMA. 2024;331(4):294-301. doi:10.1001/jama.2023.25599) (PDF), researcher report that "[l]iving in states with trigger abortion bans compared with living in states without such bans was associated with a small but significantly greater increase in anxiety and depression symptoms after the Dobbs abortion opinion." The authors conclude:

The findings provide new evidence about the relationship between the changing abortion policy landscape and mental health following the Dobbs opinion. Although there were increases in symptoms of anxiety and depression for the general population after the opinion, changes in symptoms of anxiety and depression were greater among those living in states with trigger abortion bans, and in particular, among females within the age range generally used to compute lifetime abortion incidence. This finding could be related to many factors, including fear about the imminent risk of abortion denial; uncertainty around future limitations on abortion and other related rights, such as contraception; worry over the ability to receive lifesaving medical care during pregnancy; and a general sense of violation and powerlessness related to loss of the right to reproductive autonomy.

How Much Does the Fifth Circuit Care About Public Health?

The 5th Circuit Court of Appeals has handed down a couple of decisions this week that surprised me a lot (except that this 5th Circuit is the most conservative federal appellate court in the country):

1. Abortion. The Texas Tribune has a good story on the history of this litigation and Tuesday's ruling (State of Texas et al. v. Becerra, No. 23-10246  (Jan. 2, 2024). The court upheld a permanent injunction against an HHS injunction against DHHS's post-Dobbs guidance that the Emergency Medicine & Active Labor Act (EMTALA) requires Medicare providers to perform an abortion when that is necessary to stabilize a pregnant woman's emergency (life- or limb-threatening) condition. The court concluded that Congress did not intend for the statute to require performance of a procedure that was forbidden by state law. The court went on, asserting that Texas law provides plenty of protection for procedures, including abortion, when continuing the pregnancy poses a threat to the pregnant woman's life or a major bodily function. This is the same line taken by the Texas Supreme Court in its opinion that denied Kate Cox's bid for an abortion under the same exception to the state's abortion ban. 

Meanwhile, according to Kate Riga at TalkingPointsMemo.com, the same issue is in front of the 9th Circuit Court of Appeals. Depending on the outcome of that case, the issue may land at SCOTUS's doorstep soon.

2. E-cigarettes. The case is Wages and White Lion Investments, L.L.C. v. Food & Drug Administration, No. 21-60766 (Jan. 3, 2024). This was an en banc proceeding of the Court of Appeals, with a majority opinion by Judge Oldham (and joined by nine others) and a dissenting opinion by Judge Haynes (joined by four others). The result of the case is that the FDA is ordered to review over 1 million pre-market tobacco applications (PMTAs) against the backdrop of clear and convincing evidence that e-cigs represent a serious health threat, especially to minors, with no countervailing health benefits. 

This is Judge Haynes' take on the majority opinion (emphasis added):

It is against this backdrop that the FDA reviewed the PMTAs of Wages and White Lion Investments, LLC, d/b/a Triton Distribution (“Triton”) and Vapetasia LLC (“Vapetasia”) (collectively, “Petitioners”) and issued marketing denial orders (“MDOs”) to Petitioners.  The FDA denied Petitioners’ PMTAs because they did not contain any reliable evidence suggesting the benefits of Petitioners’ flavored products outweighed the significant risks to youth—an outcome that aligned with both the guidance the FDA had given to applicants and its statutory mandate under the TCA.  But the majority opinion erroneously concludes that the FDA changed the evidentiary standards applied to Petitioners’ PMTAs and wholly ignored Petitioners’ marketing plans, and thus acted in an arbitrary and capricious manner.  Unfortunately, based on a misreading of the law and a misconstruing of the relevant facts, the majority opinion supersedes the FDA’s work by remanding instead of denying the petition, which cuts the FDA’s legs out from under it in the middle of a dangerous and constantly evolving public health crisis.  

In so doing, the majority opinion also departs from all but one of our sister circuits that have addressed the same issue.  See, e.g., Magellan Tech., Inc. v. FDA, 70 F.4th 622 (2d Cir. 2023) (unanimous denial); Liquid Labs LLC v. FDA, 52 F.4th 533 (3rd Cir. 2022) (unanimous denial); Avail Vapor, LLC v. FDA, 55 F.4th 409 (4th Cir. 2022) (unanimous denial), cert. denied, No. 22-1112, 2023 WL 6558399 (U.S. Oct. 10, 2023); Gripum, LLC v. FDA, 47 F.4th 553 (7th Cir. 2022) (unanimous denial), cert. denied, 143 S. Ct. 2458 (2023); Lotus Vaping Techs., LLC v. FDA, 73 F.4th 657 (9th Cir. 2023) (unanimous denial); Prohibition Juice, 45 F.4th 8 (unanimous denial); see also Breeze Smoke, LLC v. FDA, 18 F.4th 499 (6th Cir. 2021) (denying motion for stay), app. for stay denied, 142 S. Ct. 638 (2021).  The only circuit that granted a petition for review in a comparable context did so on much narrower grounds than the majority opinion embraces today.  See Bidi Vapor, 47 F.4th at 1195 (remanding based on the FDA’s failure to consider marketing and sales-access-restriction plans); but see id. at 1208–18 (Rosenbaum, J., dissenting).  Despite the Eleventh Circuit’s opinion, however, it is telling that the Supreme Court recently denied certiorari for two cases in which other circuits considered similar facts to those before us and denied the petition for review.  See Gripum, LLC v. FDA, 143 S. Ct. 2458 (2023) (mem.); Avail Vapor, LLC v. FDA, No. 22-1112, 2023 WL 6558399 (U.S. Oct. 10, 2023) (mem.); see also Breeze Smoke, LLC v. FDA, 142 S. Ct. 638 (2021) (mem.) (denying application for stay of FDA’s denial, without any recorded dissent). 

Reevaluating this case en banc, I would reach the same determination that the merits panel did and deny the petitions for review before us.

I concur. 

Ruth Marcus: Calling Out the Texas Supreme Court for its Opinion in the Kate Cox Case

Ruth Marcus is one of the most acute observers of political cultural and political life in this country. Now add legal commentary to her toolkit (she's a 1984 graduate of Harvard Law School). There's no better example than her column in the Washington Post eviscerating the Texas Supreme Court's opinion in the Kate Cox case. There's a paywall, but there may also be a quota of free articles that non-subscribers can tap into. If not, here are a few highlights:

• "Women of Texas, now you know: The state’s abortion law will not protect you in the case of a medical emergency. Not only will the state’s attorney general come after you, the all-Republican, Texas Supreme Court will contort itself to find that your situation doesn’t constitute an emergency that would allow an abortion to proceed. Never mind what your doctors say — courts know best, even as they purport to be deferring to medical judgment."
• "The court’s brief ruling — seven pages almost entirely devoid of legal reasoning — is a masterpiece of intellectual dishonesty masquerading as judicial deference."
• "[T]he craft of judging is about applying the law to specific facts, and here is where the Texas justices fell woefully short. The court’s opinion never explains why it is not a reasonable medical judgment that abortion is advisable in this situation, in which Cox would otherwise be forced to continue with a doomed pregnancy and incur the risk of a repeat C-section or uterine rupture from vaginal delivery. It acts as if Cox’s obstetrician hadn’t determined that an abortion would be in her best medical interest, when in fact she had found just that. It all but writes the provision about impairment of a major bodily function out of the law."
• "Theoretical exceptions are cold comfort to real women in excruciating circumstances, and without hope of getting the care they desperately need."

Harsh but fair. 

Kaiser: Who Decides When a Patient Qualifies for an Abortion Ban Exception? Doctors vs. the Courts

 Here's a thoughtful brief from the Kaiser Family Foundation on abortion-ban exceptions around the country.

It starts with a quick summary of the Texas Supreme Court's opinion in the Kate Cox case and follows with some observations that somehow escaped the attention of Texas's high court:

• "The case in Texas highlights the impossible situation that many doctors and patients find themselves in when faced with a pregnancy that may qualify for an exception."
• "[I]f doctors are prosecuted for providing abortions under an exception, the courts will nonetheless end up determining whether the abortions qualified for an exception and physicians will still be vulnerable to having their judgment second-guessed by judges and juries. Unable to get a determination from a court ahead of providing care, yet vulnerable to prosecution after providing care, doctors and their patients caught in a 'Catch-22.' In this case, Ms. Cox was reportedly able to leave the state to receive the abortion care her doctor believed she needed, but others may not have the resources to travel out of state to get medically-indicated care."
• "All 20 states with abortion and gestation bans currently in effect contain exceptions to 'prevent the death' or 'preserve the life' of the pregnant person. Like Texas, these exceptions are not clear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply, and the determination is not explicitly up to the physician treating the pregnant patient."
• "The Texas abortion ban specifies that the physician must determine that the abortion is necessary based on their 'reasonable medical judgement.' This standard leaves physicians in a legally vulnerable situation and understandably reluctant to certify a pregnancy as qualifying for a life or health exception. This reluctance stems from the concern of being found guilty of violating the law if the court relies on the testimony of other medical experts that say that the treating physician didn’t meet the standard for “'reasonable medical judgement.'"

The brief includes an interactive that shows the exceptions for life, health, rape/incest, and fatal fetal anomalies in states that have them:

Texas Supreme Court Puts an Exclamation Point on Kate Cox's Doomed Quest for Reproductive Health Care in Texas

Late yesterday (12/11) the Supreme Court of Texas issued a seven-page per curiam opinion that reversed the trial court's order in the action Kate Cox brought against the State of Texas. 

The trial court enjoined state officials from enforcing statutory abortion prohibitions based upon the "good faith belief" of Ms. Cox's physician that "continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy" [Complaint ¶ 1]. A reasonable interpretation of this language would conclude that Ms. Cox's pregnancy "places [her] at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced," the statutory exception to Texas's abortion prohibition., TEX. HEALTH & SAFETY CODE § 170A.002(b)(2). That is not the Supreme Court's interpretation.

Ms. Cox's physician's "good faith belief" is presumably based upon two subsidiary considerations: [1] a medical conclusion based upon reasonable medical judgment combined with [2] uncertainty as to the scope of the vague language of the statutory exception. There is no other way to read ¶¶ 138-139 of the Complaint:

138. Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox. 

139. It is also Dr. Karsan’s good faith belief and medical recommendation that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed. 

[emphasis added]

This was not good enough for the Supreme Court, though:

Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires. . . .  The exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks [i.e., to the pregnant woman's life or substantial bodily function].  Dr. Karsan asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.    

Does the outcome in this case really turn on a physician's attestation that she exercised reasonable medical judgment? If the verified petition in this case doesn't meet that standard, does the Court require three "magic words" to establish a woman's right to necessary medical care? Is there a difference between "best medical judgment" and "reasonable medical judgment"? The Court writes that "[a]  pregnant woman does not need a court order" to get an abortion in Texas. But if the scope of the statutory exception is uncertain, does the Court seriously expect physicians to risk a 99-year prison sentence and a $100,000 fine without first obtaining a court's authorization? 

And on the vagueness argument, the Court concludes:

The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.  Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do.

The Legislature pretty clearly intended the in terrorem effect that SB 8 and post-Dobbs enactments have produced. And in terrorem effects work best when the law is vague, its application is potentially broad, and the penalties for being wrong are draconian. Unfortunately, the Court's opinion in the Cox case -- whether wittingly or not -- plays into this cynical strategy. 

Kate Cox Leaves Texas to Obtain an Abortion

I put up a series of posts last week to illustrate the tortuous path taken by Kate Cox in order to terminate a pregnancy that posed a threat to her health and future reproductive prospects. By the end of the week, the Texas Attorney General was threatening civil and criminal action against her doctor and any hospital that allowed the procedure to be performed there AND the Texas Supreme Court stayed the order of a Texas trial judge that was based on the judge's conclusion that Ms. Cox fell within the statutory exception to Texas's abortion ban.

As reported this afternoon by the Washington Post, the New York Times, NBC, ABC, and the Guardian, Ms. Cox has left the state to obtain the abortion that has so far been denied her in her home state: 

“Kate desperately wanted to be able to get care where she lives and recover at home surrounded by family,” Nancy Northup, the chief executive for the Center for Reproductive Rights, which was representing Ms. Cox in her case, said in a statement on X. “While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”

Ms. Cox describes last week's legal developments as "hellish." It's a fit description of a society that meets a very human loss such as hers with motions, briefs, opinions, orders, and sabre-rattling by an indicted Attorney General. It reminds me of Grant Gilmore's great quote from The Ages of American Law (1977):

Law reflects, but in no sense determines the moral worth of a society…. The better the society, the less law there will be. In Heaven, there will be no law, and the lion will lie down with the lamb…. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.

Unfortunately, last week was Kate Cox's introduction to hell. 

Texas Supreme Court Stays Trial Court's Abortion Order

The court entered an "administrative stay" pending review of the TxAG's request for mandamus in the Cox case. In almost any other case, this would be a routine, even benign, development. In this case, though, it's far from routine or benign.

• Kate Cox is entering her 21st week of pregnancy. She's not far from her third trimester, when  termination of a pregnancy will be considered a "late term" abortion and nearly impossible to obtain.
  
  
• Every delay increases the risk to Kate Cox's health, including her ability to have a child in the future. There is no such thing as "maintaining the status quo" in this case.
  
  
• This case vividly illustrated the human cost of a GOP-dominated legislature and Republican AG torning abortion into a political football. One can only hope that the all-GOP Supreme Court sees this case as the trial judge did . . . and without delay.

A Further Comment on the Texas AG's Threat to Hospitals, Doctors, and Anyone Else

As noted earlier today, on Thursday the Texas AG's office responded immediately to the TRO enjoining the state from suing or prosecuting the parents, their doctor, or the doctor's staff pursuant to the Texas's abortion laws. AG Paxton's response was a letter to three hospitals where the doctor has medical staff privileges. As summarized on the AG's website, the letter stated:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions, Tex. Health & Safety Code § 170A.004, and civil penalties of not less than $100,000 for each violation, Tex. Health & Safety Code §§ 170A.005, 171.207-211. And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens. Tex. Health & Safety Code § ¬¬171.207. Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

Prof. Steve Vladeck (UT-Austin) made this excellent point on "X": 

Those defending ambiguous medical exceptions in abortion bans regularly suggest that the problem is not the ambiguities, but doctors narrowly construing them.

And yet, here’s Texas AG Ken Paxton threatening doctors with civil and criminal liability for FOLLOWING A COURT ORDER.

Vladeck's post underscores the irony of the state's argument in November before the Texas Supreme Court  in defense of the medical exception in Texas's abortion ban that allows for an abortion in cases of "a life-threatening condition or risk of substantial bodily harm." The AG's office argued that the problem wasn't with ambiguous statutory language but instead with timid doctors who unreasonably refuse to follow the standard of care in such cases: "Beth Klusmann, a lawyer for the state, argued . . . that the women did not have the standing to sue, suggesting that the women should have instead sued their doctors for medical malpractice" (CBS, Nov. 28). Oral arguments in the Supreme Court are here.

The case is Zurawski v. State of Texas, and developments in the case can be followed on the website of the Center for Reproductive Rights, which represents the plaintiffs. 

DFW Woman Obtains Court Order Allowing an Abortion, A First Since Dobbs and SB 8

The story is all over the news, so for now I will provide a few links to the news coverage and to some of the key documents in the case:

• News coverage:
• CNN
• NPR
• WaPo (possible firewall)
• NY Times (firewall)
• Yahoo News
  
  
• SB 8 (Tex. Leg., 2021): the so-called "heartbeat law," which provides that "a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child . . .  or failed to perform a test to detect a fetal heartbeat."
  
  
• Complaint (filed Dec. 5, 2023) -- the complaint alleges that "[o]n November 28, 2023, Ms. Kate Cox received the results of an amniocentesis which confirmed prior prenatal testing—her third pregnancy has full trisomy 18, meaning her pregnancy may not survive to birth, and, if it does, her baby would be stillborn or survive for only minutes, hours, or days."
  
  
• Trisomy 18 (from the National Library of Medicine) -- "Due to the presence of several life-threatening medical problems, many individuals with trisomy 18 die before birth or within their first month."
  
  
• Cleveland Clinic: At least 95% of fetuses with the condition don’t survive to full term, meaning pregnancies end in miscarriage or babies are stillborn. Infants born with trisomy 18 have many birth defects, which can cause life-threatening consequences. Almost 40% don’t survive labor, and less than 10% live past their first year.
  
  
• Trial Court's Order Granting TRO Against State Officials to Permit Abortion (Dec. 7, 2023, 10:21am)
  
  
• Letter from Attorney General Ken Paxton (Dec. 7, 2023, 1:49pm) -- posted to Twitter (now "X") -- sent to three Houston hospitals and addressed "To Whom It May Concern" -- 
  
  
  
  
  
  

  
• 
  
SB 8 was the first outrage. Requiring a pregnant person in Ms. Cox's circumstance to go to court for an order to preserve her health, including her future ability to have another child, continues the outrage. And the AG's letter to hospitals where Ms. Cox's physician has medical staff privileges is about what we've come to expect from that office.

Abortion: Legislative Update

We* had our 36th Annual Conference of the Professions here in Dallas yesterday. The official title was "Governmental conflict with standards and professional judgment: Case studies in Texas." Our keynote speaker -- Prof. David Orentlicher, M.D., J.D. -- was great, as were our panelists from the clergy, law, and medicine -- Dr. Charles Brown, TAMU School of Medicine; Shelly Skeen, JD – Southern Regional Director, Lambda Legal; and Rev. Danielle Ayers, Pastor of Justice, Friendship-west -- and our panel moderator, Rev. George Mason, pastor emeritus of Wilshire Baptist Church & founder of Faith Commons.

It didn't take a lot of imagination to read our open-ended title and conclude that abortion and gender-affirming care would figure prominently in the discussion. We did cover a number of other subjects, but these two topics dominated the discussion.

Coincidentally, today's Washington Post ran an article on the abortion bans around the country, with a focus on the vague language state legislatures use to describe exceptions to the ban, e.g.:

(Click on images to enlarge.)

Predictably, that vague language leaves physicians and hospital guessing about whether any particular patient's condition qualifies for termination of her pregnancy. The Conference explored this effect in some detail yesterday. If you missed it, this article is a very good guide to the issue.

_____________________
*The organizers of the Conference are:  SMU Dedman School of Law, the Dallas County Medical Society, the Dallas Bar Association, the SMU Perkins School of Theology, The University of Texas Southwestern Medical Center at Dallas, Faith Commons, and SMU’s Maguire Center for Ethics and Public Responsibility.

Texas Case Highlights the Human Cost of Texas's Abortion Ban

After the Supreme Court's Dobbs decision, much was written about the human suffering that will result once states ban or seriously restrict abortion services. The recent Austin case put four faces on that suffering through the testimony of four women plaintiffs. The trial judge's opinion alluded to the nature of their testimony but didn't provide details.  A recent KFF Health News article (August 7) highlighted their testimony and illuminated the risk to women's health as a result of Texas's abortion ban. 

The article should be required reading for members of the legislature and Governor Abbott, but I'm not holding my breath.

Abortion Litigation: Texas Trial Judge Enjoins Enforcement of SB 8 Under Limited Circumstances

In a nutshell: "A Texas judge ruled Friday [Aug. 4] the state’s abortion ban has proven too restrictive for women with serious pregnancy complications and must allow exceptions without doctors fearing the threat of criminal charges" (Associated Press). 

First, the opinion. It's not long and is worth reading.

Or, go straight to the BBC's excellent coverage of yesterday's ruling. Or the Texas Tribune:

State District Court Judge Jessica Mangrum of Austin wrote that the attorney general cannot prosecute doctors who, in their “good faith judgment,” terminate a complicated pregnancy. Mangrum outlined those conditions as a pregnancy that presents a risk of infection; a fetal condition in which the fetus will not survive after birth; or when the pregnant person has a condition that requires regular, invasive treatment.

Predictably, the state took a same-day appeal to the Texas Supreme Court, which had the effect of immediately staying Judge Mangrum's order. 

For part of one day, women in Texas had their right to potentially life-saving treatment restored. Texas, though, continues to follow its preferred policy of death, disability, and denial of reproductive autonomy.

Reproductive Rights after Dobbs: New Article in SMU Law Review

"Pregnancy Risk and Coerced Interventions after Dobbs" [Free Download]
SMU Law Review, Vol. 76, No. 1 (2023)

ELIZABETH KUKURA, Drexel University Thomas R. Kline School of Law
Email: kukura@drexel.edu

Abstract:

Only nine months after the Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women's Health Organization, fourteen states had banned abortion entirely, and experts estimate the ultimate number of states imposing complete or near-complete restrictions on abortion care will likely rise to twenty-four. Millions of people with the capacity for pregnancy now (or will soon) live in places where getting pregnant means there is no choice other than to carry the pregnancy to term and give birth. One underappreciated, though critically important, impact of Dobbs is the extent to which newly enacted abortion restrictions will increase both the number of people with high-risk pregnancies and, relatedly, the number of people who are coerced into medical treatment during labor and delivery. Such mistreatment in the form of coerced interventions will compound the harm of forced pregnancy after Dobbs with negative consequences for the physical and emotional well-being of birthing people and their babies.

FDR's Four Freedoms on the 4th of July 2023

In his State of the Union speech on Jan. 6, 1941, FDR famously offered up "the Four Freedoms" to explain why the United States was at war abroad and on a war footing at home. He introduced the Four Freedoms with this eerily familiar list of goals for the country: 

[T]here is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are:

Equality of opportunity for youth and for others.

Jobs for those who can work.

Security for those who need it.

The ending of special privilege for the few.

The preservation of civil liberties for all.

The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living.

These are the simple, basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. The inner and abiding strength of our economic and political systems is dependent upon the degree to which they fulfill these expectations.

Many subjects connected with our social economy call for immediate improvement.

As examples:

We should bring more citizens under the coverage of old-age pensions and unemployment insurance.

We should widen the opportunities for adequate medical care. [emphasis added -- this is a HealthLawBlog, after all]

We should plan a better system by which persons deserving or needing gainful employment may obtain it.

Then FDR got to the part of his speech that made it so enduring:

In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.

The first is freedom of speech and expression--everywhere in the world.

The second is freedom of every person to worship God in his own way--everywhere in the world.

The third is freedom from want--which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants-everywhere in the world.

The fourth is freedom from fear--which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor--anywhere in the world. 

As the Smithsonian has noted:

The public response? Crickets. Congress barely applauded. The next day most newspapers didn't even mention the “Four Freedoms.” Those who were still talking about the phrase in the weeks and months that followed did so to lambaste its “hollow, empty sound.” The government hired [E.B.] White and other A-list scribes to drum up some buzz, but White’s boss called his pamphlet “dull.” The “Four Freedoms,” in the words of one federal administrator, were a “flop.”

Ever the optimist, FDR concluded the list with this: "That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation." Eighty-two years later the Four Freedoms are still aspirational, not real, for much of the world and for many of our fellow citizens. 

Texas abortion laws: A little bit of sanity (or at least clarity) enters from both stage left and stage right

When SB 8 was enacted in 2021, there was widespread concern that the state had made it a crime to treat a pregnant woman who  had experienced an ectopic pregnancy or previability rupture of her membranes. The artlessness of the language of SB 8, and the truly ugly legislative intent that undergirded the law, did not provide much comfort, despite the very clear standards of care for both life-threatening conditions for the woman and the nonsurvivability of such conditions by the fetus. (Multiple factors have a bearing on the health consequences for the pregnant woman and the fetus, but delays in fetal extraction is one of the risk factors. Sources: here (previability premature rupture of membranes) and here (ectopic pregnancy).)

Existing law -- Health & Safety Code § 245.002 -- provides: "An act is not an abortion if the act is done with the intent to: (A) save the life or preserve the health of an unborn child; (B) remove a dead, unborn child whose death was caused by spontaneous abortion; or (C) remove an ectopic pregnancy." This is actually not particularly helpful in reining in SB 8 for two reasons. First, it does not exclude previability rupture of membranes. Second, this exclusion is part of a definition of abortion that starts with this phrase: "In this chapter," and Chapter 245 is titled "Texas Abortion Facility Reporting and Licensing Act." It would be simple enough for an aggressive DA to argue that the exclusions apply only to abortion facilities and do not apply to a physician who is prosecuted under the provisions of SB 8.

In the most recent regular session, the legislature passed HB 3058, and Governor Abbott signed it into law on June 17. It's a relatively modest bill, but it's one of the only bills (I'm being generous; it is the only bill I know of) enacted this session that protects women's health and provides legal protection for physicians who provide treatment pursuant to reasonable medical judgment (an endangered concept in this state).

Here's a thumbnail sketch of HB 3058:

• The key to this bill is the addition of § 74.255 to the Texas Civil Practice & Remedies Code. The new provision creates an affirmative defense in a civil action brought against a physician or health care provider if "the physician or health care provider exercised reasonable medical judgment in providing medical treatment to a pregnant woman in response to: (1)  an ectopic pregnancy at any location; or (2) a previable premature rupture of membranes. The clear purpose of this language is to expand the exclusion if Chapter 245 beyond licensed abortion facilities to any setting in which treatment is provided, as well as to add treatment of previable premature ruptured membranes to the protection of the law.
• A pharmacist or pharmacy that "receives, processes, or dispenses a prescription drug or medication order written by a physician or health care provider to whom [the previous affirmative defense] applies is entitled to the affirmative defense provided by Subsection (a).
• Section 2 of HB 3058 prohibits licensing boards from pursuing disciplinary measure against health care provider whose actions are consistent with § 74.255.
• Section 3 of HB 3058 amends the Penal Code to extend the affirmative defense to criminal prosecutions of physicians and health care providers.

The text of the bill originated with the Texas Civil Justice League and was sheparded through the House by Rep. Ann Johnson (D-Houston) and in the Senate by Sen. Bryan Hughes (R-Tyler). Hughes is a reliable vote for Texas Right to Life, so his support was a bit of a surprise. Bipartisan sponsorship was certainly a big factor in getting this passed, and Sen. Hughes's name as Senate sponsor undoubtedly helped the Republicans decide it was safe to jump on board. TCJL's announcement heralded the success  of HB 3058, but provided this additional hopeful note:

The bill was drafted . . . to create a vehicle that could be amended later, once the necessary level of political consensus developed around the idea of doing something to ameliorate some of the unintended consequences of SB 8, the Dobbs decision, and the revival of Texas’ criminal penalties for performing an abortion. 

That is exactly how it played out in the two houses of the Legislature this past session. 

The very fact that Texas needed this clarification is an indication of how crazy and dangerous this state's abortion laws have become. Both medical conditions are relatively rare, but the potentially lethal consequences of not treating them and the utility of well-established standards of care should not have been placed under a legal cloud of doubt. And it's not just our legislature that's to blame. The U.S. Supreme Court's abandonment of women's reproductive health rights cleared the field for state improvisation, no matter how dangerous and ill-considered. (Linda Greenhouse wrote an op-ed in the N.Y. Times today (may require payment), the one-year anniversary of the Supreme Court's ruling in Dobbs). 

The next question is whether the new law will be "a vehicle that could be amended [in] later [legislative sessions] to do[] something to ameliorate" the changes in federal and state law that have stripped women of their right to make one of the most fundamental health decisions of their lives. 

RBG on the Overturning of Roe v. Wade

This was posted recently by a wonderful German attorney and former Bioethics student of mine, Christine Gärtner. It appears to be part of an interview with Justice Ginsburg, and I am not sure of the source, but it sure looks like her crystal ball was firing on all cylinders. Of course, lots of others were making the same prediction, though she cut to the policy question that, honestly, can have only one answer: