The End of Jurisprudence

Or why the new Texas abortion law is terrible news for everyone.

This May, Texas passed Senate Bill 8, banning all abortions performed after a fetal heartbeat can be detected in the state of Texas, effectively banning all abortions after around six weeks of pregnancy.  This is now the strictest abortion law in the land.

The new law passed on May 19 to take effect on September 1, but had its share of legal complications.  The matter was ultimately raised to the Supreme Court, who delayed their decision regarding whether it would hear the case until after the law went into effect.  The Supreme Court officially refused to hear the case on September 2, 2021.

The Supreme Court's delay was purportedly tied to the law's novelty.  The law does not criminalize the abortion procedure; rather, it makes it an issue of civil liability.

And whatever your underlying feelings on abortion, this is why everyone should be afraid of this law.

For the explicitly removes enforcement of the new law from the hands of the executive branch of government (police, district attorneys, etc.), and places it squarely in the hands of the general public.

We've created abortion vigilantism.

And have upended 250 years of jurisprudence.

"Any person, other than an officer or employee of a state or local governmental entity in this state, may
bring a civil action against any person who:

(1) performs or induces an abortion in violation of this subchapter;
(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or
(3) intends to engage in the conduct described by Subdivision (1) or (2)."

Any citizen of the state of Texas can bring suit against an abortion provider or assister (very loosely defined) to seek civil damages and attorneys' fees.  

Note that the law so far, does not punish the pregnant woman receiving the abortion (unless perhaps she paid for it herself), but punishes anyone aiding in that end.  The abortion provider, the person that drives you to the clinic, the person that helps pay for it, the person that gives you a name or number, etc, etc, etc.  If you even suspect that someone intends to drive a woman to seek an abortion after 6 weeks but hasn't done it yet, you could bring suit against them.

So, we have what should be a criminal statute, that doesn't criminalize the behavior.  

One that turns over enforcement to the people.

A civil suit that does not require that the plaintiff themselves have been injured.  

That award's statutory damages not less than $10,000.  A $10,000 bounty if you will.

We're breaking our rules of law to make this work, and we will all pay for it.

Make no mistake, you will see a rise in frivolous, tenuous lawsuits coming out of this because of the financial incentive.  They will flood our already overloaded court dockets, pushing out court dates for all manner of suits.  And this will likely lead to other attempts to use this type of legislation for other types of social issues.

Imagine if this had been used in the early days of the pandemic to enforce social distancing.  If you could get a $10,000 reward for turning in anyone you saw gathering in groups over 10.  That weren't wearing masks.  If you could sue them if you just heard them talking about a party, intending to gather.

That sounds like a nightmare, right?

This is why we have certain requirements for our laws.  Why we abide by them, even if we are trying to do what we deem is noble.

The ends must justify the means.  And they don't here.  The means are too destructive.

I could write more about this, and probably will.  But for now, I'm just stunned, a little numb.

Anti-Abortion Madness

As states are emboldened to tighten restrictions on abortion, we are reaching a bit of anti-abortion madness leading to some outrageous and offensive results.

Alabama signed into law a near-total ban on abortion including criminalizing the procedure as a Class A felony and providing an exception only when "necessary to prevent a serious health risk."  The law provides no exceptions for rape or incest.

Many other states, like Georgia, have been signing "heartbeat laws," preventing an abortion after a fetal heartbeat is detected.  These bills generally provide exceptions for rape, incest, and situations where the mother's life is at risk.  There are around 15 heartbeat laws in various stages across the country.

Ohio's law is one of the most baffling and infuriating.  The bill aims to prohibit insurance coverage of abortions, includes two exceptions: one expected and one medically impossible.  There is no exception for rape or incest.

The first exception is one for a "procedure, in an emergency situation, that is medically necessary to save the pregnant woman's life."  The second is a procedure for an ectopic pregnancy, "that is intended to reimplant the fertilized ovum into the pregnant woman's uterus."  That is medically impossible.

In an ectopic pregnancy, the fertilized egg implants in the fallopian tubes instead of in the uterus. The pregnancy is not viable and it very often can put the mother's life at risk, running the risk of the fallopian tube rupturing.  The pregnancy either ends in a miscarriage or it is ended with drugs or surgery.

"An ectopic pregnancy cannot move or be moved to the uterus, so it always requires treatment," according to the American College of Obstetrics and Gynecologists.

The bill would then have Ohio women waiting until the ectopic pregnancy became life-threatening to get an abortion.

We've been there.  Between Avalyn and Jude, we faced an ectopic pregnancy that went long undiagnosed.  And the experience damn-near killed Jamie.  She's alive by God's grace and our fighting for further examination.

First, it was believed to be a miscarriage, but the D&C procedure did not really reveal anything to have been there in the first place.  Following more pain and bleeding, the ectopic was diagnosed and methotrexate was prescribed.  This is a chemotherapy agent used to treat cancers and to terminate pregnancies, particularly ectopic pregnancies in early stages.  It's the non-surgical option.  That was still followed by more pain and more bleeding, requiring the surgical option, which is the removal of the fallopian tube.  By that time, Jamie had free flowing blood from internal bleeding in her abdomen.

That's nothing anyone should have to suffer through.

And it's especially something that no one should be submitted to because of belief in "magic medical procedures" invented by their legislature.  Our anti-intellectualism at its finest.

It's no wonder states with the worst anti-abortion laws also have the worst infant mortality rates.  Of the 12 states ranked highest in infant mortality rates (including Alabama and Georgia), 11 are described by the abortion rights organization NARAL as imposing "severely restricted access" on abortions.  States with the largest number of abortion restrictions such as mandatory waiting periods, counseling and ultrasounds; restrictions on insurance coverage; and unnecessary standards on ambulatory abortion clinics, tend also to have the fewest supportive policies like Medicaid expansion; family leave; sex- and HIV education programs; and good access to children's health insurance programs.  Experts have connected these dots between abortion restrictions and maternal and infant health problems.  Limits on access to legal abortions lead women to choose unsafe alternatives.  Unintended pregnancies tend to be associated with poor health for women and their children.  And low-income and minority women face difficulties accessing healthcare even under ideal conditions, leading to an economic and racial component to the effects.

Likewise, we've seen that the maternal death rate is on the rise and that most of them are preventable.  700 women each year die in the US due to complications related to pregnancy or childbirth and more than half of them die from preventable causes. From 2000 to 2014, this rate increased 27%.  Going beyond the death statistics, a report by NPR and Propublica found that for every 1 mother who dies 70 women nearly die.  In fact, a woman giving birth in the United States is nearly 3 times as likely to die as a woman giving birth in Canada or the United Kingdom.

Why?  Because we have a system based on the idea that it is rare for a woman to die in childbirth, where funding and resources are dedicated mostly to saving babies, and where the woman's complaints are downplayed or ignored.

We saw this with Jamie.  The day before the surgery to remove the ectopic pregnancy and the fallopian tube, we went to the ER.  The doctor on call did not deem her pain level sufficient enough to call the OBGYN on call nor to request an ultrasound and instead chalked everything up to side effects of the methotrexate.  Thankfully, we demanded an ultrasound, so that at least the next doctor on call would actually look at it (after we left the ER) and see that she needed to be on the operating table right then.

I'm not a supporter of abortion.  I do not like the procedure, I wish it could be done away with.

But our lawmakers are so transparent in their attempts to pass a law that will be challenged so they can take the case to the Supreme Court and attempt to overturn Roe v. Wade that they are not even writing sensible legislation at this point.  They are not writing legislation that will have a positive impact on the health and safety of their constituents.  Instead they are playing dice with the lives of the women and children of their states. 

You can see it clearly in including procedures that come straight out of their science fiction fever dreams.

And they wonder why people compare them to The Handmaid's Tale.