According to the Texas Tribune, Texas does allow a physician to perform an abortion if a woman is facing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.”
Anyone who has spent any time studying law or even just paying close attention to the law, as reported in the media, knows that cases often swing on subtle nuance in words and interpretations made in different situations. It would be hard to find an area riper for vague interpretations than where law clashes with a medical practice. What constitutes true “life-threatening” conditions? When it is 50-50 that the patient will die? What about a 1% chance of fatality? What if two doctors disagree? What is “aggravated by a pregnancy”? In this man’s – keyword, “man” – limited experience, the flu is “aggravated” by a pregnancy. Pregnancy is hard, women say, and thus any physical ailment suffered while pregnant is that much harder. So we ask again, what is aggravated by pregnancy?
You can see the problem. You saw the problems long before the SCOTUS slammed the door on Roe v. Wade.
But according to the Tribune, Texas is taken the vagueries and interpretations to a new level by threatening “life in prison” and a minimum of a $100K fine for anyone who performs an “illegal abortion.” Imagine you’re a doctor, a woman is very sick, she is pregnant, the pregnancy “might” be aggravating the condition… and you face a lifetime in prison (though the most severe penalty would not likely be handed down) and a mandatory minimum fine of $100K if you miss on your interpretation of the situation. Are you going to perform the abortion before the woman is obviously dying before it gets to 50-50?
Now some prosecutors say that such a high civil fine invokes double jeopardy concerns with respect to the criminal case and are relying solely on civil cases (the $100K fine) to enforce the law.
The civil fine, though, may prove to be an important piece of enforcement as more prosecutors come out publicly in opposition to the criminal laws. Several major cities are considering or have passed measures that prohibit the use of local funds to investigate or prosecute abortion-related crimes, and district attorneys in five large counties — Bexar, Dallas, Fort Bend, Nueces and Travis — have said they won’t bring criminal charges in these cases.
Still, $100,000 minimum? And, no – malpractice insurance will not cover it (Or at least is highly unlikely to cover it) because it’s an intentional act. Malpractice covers torts, suits based upon failing to adhere to the standard of care. Intentionally performing an abortion, rightly or wrongly, is an intentional act.
The point is obvious. Texas is willing to risk women’s lives in its purity test regarding abortion. Doctors are human. Sure, their first instinct is to treat their patient (THE WOMAN), and yet the human side of doctors will force them to consider the possible consequences to them. Fear of “missing on the wrong side” will surely increase the risk to the patient in front of the doctor, perhaps forcing the doctor to allow the woman to get sicker and sicker, in an increasingly dangerous situation, all so that the doctor can better prove that the abortion was necessary.
This was entirely foreseeable. The problem is right in front of Texas’s eyes. And yet, so far, no one in the Texas government has said, “We need to fix this with more specifics or something that says, “Miss on the side of helping the patient…” The law isn’t set up well to handle situations such as this, and women face the primary risk. The secondary risk to doctors merely enhances the primary one to women.
Awful.
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.