Excellent, thorough, and true! Since I could never do better and can’t imagine editing, I’ve been given permission to copy & paste. Please give it your time and attention!
(The group is an excellent source & great to follow on Twitter, @secularprolife)
Today’s guest post is by Daniel Gump.
After passage of the Texas Heartbeat Act (Senate Bill 8), numerous misinformation campaigns have led to confusion among the general public as to what the legislation covers and how violations are handled. Because of this, I have encountered several of the same questions and inaccurate statements repeated on social media over the past couple months. The following responses address some of these questions.
Health and Safety Code already defines abortions under Sec. 245.002, and the Act did not amend them. Subsection (1) states:
(1) “Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. 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 definition is similar to those across the entire United States, as treatment for ectopic pregnancies and post-miscarriage treatment are not criminal acts in any jurisdiction. The laws solely address intentional acts of feticide.
The legislation declares for Health and Safety Code §171.203-§171.205 that abortions performed or induced for legitimate medical emergencies are exempted from prosecution. They must be logged in the woman’s medical records and retained in the physician’s own practice records.
The existing Sec. 171.002 defines what would be considered a medical emergency:
(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.
The Texas Heartbeat Act is silent on fetal anomalies of any type, so an unborn child with Down syndrome, spina bifida, hydrocephalus, or other conditions is protected from abortion, unless the pregnant woman’s life is in danger.
No, Section 3 of the Act adds Sec. 171.206 to the Health and Safety Code. This includes the text:
(b) This subchapter 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;
Several other statutes already protect women from criminal abortion liability. Examples within the same code Chapter 171 include:
Sec. 171.064. ADMINISTRATIVE PENALTY.
(b) A penalty may not be assessed under this section against a pregnant woman who receives a medical abortion.
Sec. 171.106. APPLICABILITY.
A woman on whom a partial-birth abortion is performed or attempted in violation of this subchapter may not be prosecuted under this subchapter or for conspiracy to commit a violation of this subchapter.
Sec. 171.152. DISMEMBERMENT ABORTIONS PROHIBITED.
(b) A woman on whom a dismemberment abortion is performed, an employee or agent acting under the direction of a physician who performs a dismemberment abortion, or a person who fills a prescription or provides equipment used in a dismemberment abortion does not violate Subsection (a).
Sec. 171.154. CONSTRUCTION OF SUBCHAPTER.
(d) This subchapter may not be construed to:
(1) authorize the prosecution of or a cause of action to be brought against a woman on whom an abortion is performed or induced in violation of this subchapter;
There would be no civil or criminal liabilities within Texas for women receiving abortions, so any such liabilities would fall under the jurisdictions where the abortions take place. Holding women liable for abortions is very rare in any nations following English common law (as the US does when no statutory law exists to the contrary).
Of all 50 states, the only ones that explicitly allow for women to be criminally liable for abortions are:
This would take a very liberal interpretation of the new Sec. 171.208(a) to include drivers under “any person who…”
Drivers are multiple degrees separated from (2) aiding or abetting “performance or inducement” of abortions, and they are not (3) intending such action by transporting customers between locations.
The claim that drivers would be liable was little more than a publicity stunt by Lyft to inject themselves into discussion on the legislation. In their press release, they were very careful to avoid use of the word “abortion” and repeatedly hid behind euphemisns like “healthcare they need,” “healthcare appointment,” “healthcare access,” etc. This made the Texas Heartbeat Act seem like its purpose was to block women from seeing their OB/GYNs or other healthcare practitioners.
Lyft also made it clear that drivers and riders should follow a don’t-ask-don’t-tell policy for any illegal activities. The press release closed out with an announcement of a legal defense fund for drivers ferrying women in violation of the Texas Heartbeat Act, a $1 million donation to Planned Parenthood, and a link (with tracking parameters in the URL) for individuals to further donate to Planned Parenthood.
No, Section 3 of the Act adds Sec. 171.208(j) to the Health and Safety Code that states:
Notwithstanding any other law, a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other act prohibited by Sections 22.011, 22.021, or 25.02, Penal Code.
The Penal Code sections referenced address “Sexual Assault,” “Aggravated Sexual Assault,” and “Prohibited Sexual Conduct,” respectively.
What makes the Texas Heartbeat Act unique among fetal heartbeat legislation is that it declares any non-government individual to have standing to sue. The claims of open bounty on abortion clinics are exaggerated, as generally only those close enough to the acts would have enough evidence to merit lawsuits. Presumably, those close enough would include the women who had the abortions, the father of the unborn children, any relatives or guardians of either, and possibly those within their inner circles.
A random individual would have difficulty presenting a strong case, particularly with HIPAA laws and Texas’ own privacy laws concerning abortion reporting under Chapter 171 of the Health and Safety Codes. Any individual performing or inducing abortions who provides enough details to the general public about specific violations would likely be in violation of several other laws, as well.
Any lawsuit would also have to follow established legal procedures in the state under the Civil Practice and Remedies Code, Code of Criminal Procedure, and any other applicable areas of the Revised Statutes. A state-wide free-for-all to claim $10,000 per violation is not likely, as a claimant would have to pay court fees and attorney fees on a lawsuit with dubious chance of actually succeeding. Plus, an award is only available once per violation (Sec. 171.208(c)).
On September 18, 2021, abortionist Alan Braid wrote an article for The Washington Post in which he admitted to violating the law. He was careful to avoid publicly disclosing specific details, but two individuals residing out of state (Oscar Stilley and Felipe N Gomez), nevertheless, filed lawsuits against him to test the law. As these cases are still pending, their merits are difficult to determine.
Section 3 of the Act adds Sec. 171.203 to the Health and Safety Code, which describes the means as being “standard medical practice”:
(a) For the purposes of determining the presence of a fetal heartbeat under this section, “standard medical practice” includes employing the appropriate means of detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the woman and her pregnancy.
(b) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.
(c) In making a determination under Subsection (b), the physician must use a test that is:
(1) consistent with the physician’s good faith and reasonable understanding of standard medical practice; and
(2) appropriate for the estimated gestational age of the unborn child and the condition of the pregnant woman and her pregnancy.
Any specific requirements for methods fall outside the scope of the legislation and within any medical licensing boards of medical associations.
Based upon the definitions in the new Health and Safety Code Sec. 171.201, there is no specific time period, as the ban is based upon the ability to detect a fetal heartbeat, using “standard medical practice.” From subsection 1:
“Fetal heartbeat” specifically means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.
Even though the term used is “fetal heartbeat,” the scope of the law includes embryos, based on subsection 7:
“Unborn child” means a human fetus or embryo in any stage of gestation from fertilization until birth.
The actual method of detecting the heartbeat of the embryo or fetus relies on the discretion of the one conducting the test.
Johns Hopkins Medicine states that a transvaginal ultrasound can detect the heartbeat by 5-6 weeks, and an abdominal ultrasound can detect one by 7-8 weeks. These are just estimates that can depend on a number of circumstances, like quality of equipment and training of the individual.
Sec. 171.203 requires a physician to record the method of detecting the fetal heartbeat and the estimated gestational age. Presumably, this would reduce purposeful attempts of deceit to circumvent the law.
Though not part of the same legislation, the state’s budget increased several social programs for the year.
The “Alternatives to Abortion” program under the Texas Health and Human Services has seen a budget increase every two years since its inception. For the 2022-2023 biennial budget earlier this year, there was a 25% increase from $80 million to $100 million. This program addresses financial and material needs of pregnant women and parents. The website lists examples of services:
Additionally, the budget increased the following:
Photo by Matt Walsh from Unsplash
Powered by Blogger.
A primary tenant of Western medicine is that people have the right to refuse medical treatment. President Joe Biden has ignored this tradition, the First Principle of Medical ethics (“First, do no harm”) and the Constitution of the United States.
In medicine, there’s a huge ethical difference between forbidding intervention and not only forcing individuals to comply, but forcing third parties like employers and medical personnel and administrators to intervene by mandating the involuntary breaching of bodily integrity.
The rare cases in contradiction are treatment of tuberculosis and psychosis where it’s proven that patients are an imminent danger to others, not just themselves. This infection can not rise to that level of threat.
There is a history consistent with quarantines – but only of the contagious or suspected contagious.
It’s an egregious violation of human rights to force invasive medical treatment on the unwilling except in emergent, extreme circumstances.
On one of the Facebook groups I follow, the conversation about the recent Arkansas law protecting conscience was diverted from the law itself by a sensational headline that reflected only the worst accusations of opponents & the reactions of group members to that headline.
During the conversation, I was questioned about my use of the term “normal” for healthy bodily functions. At the least, “normal” is that which doesn’t itself injure tissues & organs and doesn’t require technological intervention to produce or to prevent morbidity & mortality.
We are hearing & reading about demands that legitimate research results should be suppressed, watching physicians and scientists who express heterodox opinions be censored. Then we’re told that there’s a “consensus,” since none of the “objectionable” research is published, much less popularized, and the outliers are demonetized and covered with warning boxes.
Science isn’t a “consensus.” In science, true hypotheses are testable, with valid results capable of being confirmed by different observers under similar conditions in different labs.
That’s also a good definition of reality or “normal.” One that could be applicable to medical subjects like COVID or vaccines, as well as social and legal matters.
We’re being manipulated for reasons that have nothing to do with actual health, physical or mental. I can’t fathom a reasonable explanation. It looks like an exertion of power – social, financial, then legal.
Patients won’t be helped at all by forcing moral injury by requiring medical professionals to act against their conscience and we all lose when rational discussion is suppressed in the public sphere.
CNN has corrected its headline and printed a corrected story in typical fashion: down at the bottom of the page, they note that they might have made a mistake.
“According to our information at this very early stage of investigation, it appears these individuals were operating under the belief that ‘fake ballots’ are being counted at the Convention Center — a completely unsupported claim — and that belief may have been what drew their attention to Philadelphia.” Roh told CNN in an emailed statement.
But it wasn’t their fault.
CNN affiliate KYW had earlier reported that the men were “coming to deliver a truck full of fake ballots” to the city, citing prosecutors.
Correction: A previous version of this story misstated the presumed motive for why Antonio LaMotta and Joshua Macias had come to the Philadelphia Convention Center armed with guns. They may have believed fake ballots were being counted there, according to Philadelphia District Attorney’s Office spokeswoman Jane Roh. The headline and story have been corrected.
You’ve probably heard about the new doctor, Scott Atlas, MD who is advising President Trump on health policy during the last couple of months.
Here’s a video in which he describes his views and recommfations. You might be surprised!
Politics are heated, these days. One hot spot is the imminent confirmation of Judge Amy Coney Barrett to the Supreme Court of the United States after the unanticipated (yet expected) death of Ruth Nader Ginsberg last month.
A lot of us have expressed our concerns about what has been called “social eugenics,”experimenting with basic societal institutions and our children’s future. (Example: the unexpected problems of forced single parent homes and racial disparity in prisons from the way we pay aid to families and “the War on Drugs.” )
Huge changes were mandated by SCOTUS, rather than State by State, or even at the Federal legislative level, through legislation by our elected representatives. Controversial social change – either direction – is better accepted if it comes socially, then politically.
Judge Amy Coney Barrett has demonstrated the ability to rule based on law, separating religious matters from the meaning of the law. The ABA isn’t adverse to withholding approval for judges, yet gave a glowing recommendation of “Very qualified” and testified about their deliberative process and in favor of confirmation at the Judiciary Committee this morning.
For those interested in the Born Alive issue, here’s a “pro-choice” leaning “FactCheck.org” article that generally has the details right. It’s the conclusion that is flawed.
We don’t know the specifics of President Trump’s Executive Order, but there’s quite a bit of controversy in social media and the news media.
However, there has always been a very real debate about both the babies on the cusp of viability and babies born alive in the process of an induced abortion.
The latter was addressed in the 2019 Bill that failed to pass. Specifically, that Bill (would have) mandated standard of care medical attention.
CNN has an opinion piece disguised as a report on yesterday’s “hearing” with Attorney General William Barr. Even as the author, Jerry Herb, repeatedly declared statements by Barr and President Trump as “false,” he took note of the poor treatment of Barr by the Democrats.
“Jerry Nadler of New York and the panel’s Democrats did not offer Barr any niceties congressional witnesses typically receive. Democrats repeatedly cut off Barr’s responses, accused him of being wrong or lying and made clear they weren’t interested in the explanations he was offering. Barr wasn’t allowed extra time at the end of each lawmaker’s five minutes to respond to questions that witnesses typically receive — forcing Republicans to use their time to let Barr push back on the Democratic accusations.”
(“I’m reclaiming my time!” “I’m reclaiming my time!” “I’m reclaiming my time!” It started sounding like one of the rioter’s chants.)
There were few questions with an opportunity to answer, only
character attacks and accusations that the AG is guilty of politics and doing the bidding of the President. (Wingman?)
More than once AG Barr was accused of racism and causing people to die. One man flatly declared that the Attorney General of the United States was guilty of breaking his oath of office. And, of course, there were threats of impeachment.
Is there supposed to be a “quota?” Isn’t hiring according to race the definition of “racism?”
I kept waiting for someone to have a stroke – not the AG, he was usually amazingly cool and calm.
(Or spontaneously combust?)
General Barr is, however.
(This is an edited version to clear up typos.)
“Police made no effort to interfere…” This is happening to Americans all over the US and multiple factions compare their opposition with the abusers of Nazi Germany.
There’s been looting and vandalism in broad daylight, and 2 months of nightly destruction of property and fires in Seattle, Washington and Portland, Oregon. (And Atlanta, Georgia, New York City, Chicago, Minneapolis, St Louis and virtually every large city in the US) This weekend in Columbus, Ohio, a peaceful rally was disrupted by obscene “Black Lives Matter” protestors, with one woman waving what looks like severed male genitals (here, at about 6:35).
Local police are being *ordered* to stand down and limit their efforts to interfere by Mayors and Governors, but when they do – or Federal law enforcement is sent in – who is criticized, even called the “Gestapo?”
Sometimes, even “Black Lives” are victims of both vandalism and assault.
The parallels with Kristallnacht are not precise, but they’re there: the rioters have unofficial approval from the same local governments that are throttling down law enforcement. Only, this time, another governing body would stop the vandalism if allowed.
The question is not whether Godwin’s law has been broken, but whether we learned anything from history in general. I’m also reminded of the chair of the French Revolution which ended when the original leaders were sent to the guillotine, and George Washington’s response to the Whiskey Rebellion with an army of Federal soldiers attacking members of the mob who were accused of harming Federal agents and burning the home of one a official.
How long will the voting public allow their elected officials to be “distracted” by the anarchy and politics?
(Edited for grammar 21/07/20 17:30. BBN)
There’s a right way and a wrong way to change a law. The Constitution doesn’t provide that the Courts make the big decisions, leaving the inconsequential matters to Congress. And yet, nominally “textualist” Supreme Court Justices Gorsuch and Roberts joined with the”living document” Progressives to do it the wrong way.
Gorsuch wrote the majority opinion in Bostick v. Clayton County and got at least two points right:
- “When the express terms of a statute give us one answer and the extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” and,
- There’s no way that the 1964 Congress would have intended for the word “sex” to include sexual orientation or gender identity.
In his 37 page argument, Gorsuch stuffed and fluffed strawman after strawman to fit an extratextual interpretation of “because of …sex” into the redefinition of “sex.” As noted in the dissents by Justices Alito & Kavenaugh, his is a redefinition that wasn’t even attempted when SCOTUS redefined “marriage” in Obergefeld.
In other words, as Justice Alito wrote in his dissent, Gorsuch and the majority “legislated.”
I agree that this law needed changing to give more protection to employees in the public market place. Congress should have been encouraged to work out those protections, while also preserving religious freedoms and single-sex spaces and even women-only sports. I can’t help but wonder whether – perhaps – both political Parties took a dive, hoping the Supreme Court would do exactly what they did.
And the Country will witness lawsuits, year after year, that might have been averted.
In the meantime, though, I’ll bet Senator Chuck Schumer feels caught in a whirlwind of his own. What price, now, Chuck?
The “Right to Life” means the negative right not to be killed by intentional acts. It’s not the right to force others to invest our life, liberty or property other than the duty to intervene against infringement. This is a basic negative right, not a positive right.
There’s a huge difference between personal responsibility in avoiding a risk to yourself and actively causing harm to someone else. Self-defense rather than selfish demands, using only appropriate force on others.
You know, the old “your right to swing your fist ends at my nose!” (Especially Appropriate in this case.)
*You* take the actions *you* believe are responsible. Only frequent places/businesses that require masks if you want, do the work necessary to maintain the social distancing you are comfortable with. Don’t force everyone else to do your work for you.
This all makes me physically ill. Documents withheld for over 3 years.
Special ProsecuterMueller’s investigation had some of these documents. Did Horowitz?
I have said that justice died the day that Kelo was decided and Terri Schiavo was killed by medically pulling her feeding tube & threatening her mother with Sheriff’s deputies guarding her to ensure dehydration.
Then, Comey pulled his Hillary stunt and the DOJ handed out immunity like candy. Then, the Russia hoax, and impeachment with Schiff claiming ownership of interview documents.
Now FISA courts subverted, 66 yo’s are arrested in their homes in SWAT assaults, and this, with Flynn. The FBI leadership planned to go after Flynn, in order to prosecute or get him fired.
Then, the documents and others proving the plan were held – hidden – for over three years in spite of a judge ordering them turned over.
The real story is the lies they told, and especially the fact that they hid these documents 3 years after they were ordered by a judge to turn them over!
They didn’t appeal the judge’s rulling: they obstructed justice, hiding and denying their existence! The Sztrok/Page texts were supposedly destroyed, remember? Then some were turned over as if the complete record.
Justice is dead and the body has been repeatedly mutilated.
Edit: 509 PM AST 30/04/20 To add 2nd & 3rd to last paragraphs BBN
It seems that an advocate of Euthanasia and Assisted Suicide (EAS), which is legal in Canada since 2016, complained to the “The Protection of Conscience Project” administrators about their use of the word, “killing,” rather than “Medically Assisted Death” (MAD) when writing about the law. The wording of the objection exposes the potential limitations even on thoughts, much less the act of refusal, of physicians who object to participating in EAS.
(*EDITED An earlier version stated that licences were at risk. Not yet.
BBN 11 February 2020 12:30 AM)
I was asked about the #BabyTinslee case and what we should do, what can we do, in the disputed cases.
We need to educate more. People don’t understand basic medical ethics in this day of “choice.”
Autonomy doesn’t supersede nonmaleficience. In other words, the First Principle of medicine, “Cure when possible, but first do no harm,” always should guide us, rather than “wants” or “choice.”
In the end, doctors are the ones actually performing the acts and we’re most likely to understand the projected outcome. We benefit from oversight by colleagues and the community, both informally and in the process prescribed by the Texas Advance Directives Act.
Some people demand that every one of these cases go to court, for “due process” and “cross examination.”
But judges and courts can’t be as knowledgeable as doctors are. Their decisions are necessarily informed by dueling (paid) lawyers and (hired) medical experts.
In all the cases that have gone to court, the family has had quite a lot of notice, but the 48 hour notice before the committee meeting is perceived as too abrupt, especially since the relationships all appear to be adversarial by that point.
(And who could get your family to a meeting in 2 days?)
The 10 days isn’t thought to be long enough to arrange a transfer, either. Again, in many of the Court cases, the attempts to find another doctor willing to accept the patient’s care has begun before the committee meeting.
Doctors acknowledge the great trust and privileges we are given by agreeing not to abandon our patients. When we have a disagreement with a patient or surrogates (usually a familymember), we accept that we must continue treatment for a period of time. But not indefinitely.
If we could get the reforms that have been attempted to lengthen the statutory timeframe (multiple times) since before 2005, the TADA would be much better. It’s still the best process we have, currently.
“We’re doing things to her. Not for her.” (Wini King, spokesperson for Cook’s Children’s Hospital, January 3, 2020) This may be the best description of a very sad case.
Tinslee Lewis was born prematurely on February 1, 2019, with severe heart and lung defects. She had cardiogenic shock and was admitted to the Cardiac ICU at Cook’s Children’s Hospital immediately. ♡(See Cardiac Pathology ♡below.)
Even after three open heart surgeries, a fourth to close her sternum, a short time on ECMO (essentially, heart-lung bypass) and constant ventilator since July, of 2019, Tinslee’s enlarged heart and small, damaged lungs can’t keep up with the necessary blood circulation and exchange of oxygen and carbon dioxide, even with the assistance of multiple blood pressure medicines, diuretics and the ventilator on high, except when she’s still and quiet with the help of sedating and paralyzing drugs.
In response to a lawsuit against Cook’s Children’s Hospital, where Tinslee has been in the CICU since birth, Tinslee’s medical records were submitted to the Court. I’ve been able to review approximately 200 pages that are now public record, describing the constant, repetitive interventions necessary to keep Tinslee alive on the ventilator.
Tinslee’s doctors (and, the notes show, the nurses and staff) believe that they are being forced to cause Tinslee pain and suffering, while keeping her paralyzed and sedated. They report increasing difficulty with managing the ventilator so that her damaged heart & lungs can maintain oxygenation. She requires repetitive heart, lung and blood tests to guide adjustment of meds & treatments and has had several infections requiring treatment. In contrast to my earlier presumption, the notes in the records show that the ventilator and all its required meds and manipulations are indeed causing undesired problems, including fluid overload, infections and cardiopulmonary distress, in addition to her underlying lung disease. Even the baby’s growth, something we usually celebrate, increases her risk of cardiopulmonary insufficiency.
Those records also contain notes from many attempts to explain and council Trinity Lewis, Tinslee’s mother, about her baby’s underlying problems and prognosis and the reasoning behind, in contrast to some past media reports.
Ignoring the fact that doctors, not hospitals, practice medicine in Texas, Texas Right to Life Lawyer Joe Nixon is quoted, claiming that the “hospital ” has decided to withdraw treatment. Texas Attorney General, Ken Paxton, is shown to have Tweeted that the problem is a “legal issue,” rather than an ethics and justice matter of forcing doctors (and by their orders, nurses and other staff) to cause pain and suffering for a little girl who is dying as her body fails to heal, in spite of every intervention possible.
Many people, out of compassion, object that “the family ” should decide when to withdraw life support. Yet, the family members aren’t watching the oxygen levels drop while they rinse Tinslee’s airways with a bicarbonate solution to keep her lungs clear. And it’s certainly not the lawyers that are probing, injecting, measuring and adjusting constant, innumerable hourly interventions done to a baby who must be sedated and paralyzed to prevent cardiac and respiratory distress.
In spite of the diligent complicated interventions and care of the doctors and nurses at Cook’s, there have been comments in blogs and social media that the “hospital” wants to “kill” Tinslee. Startlingly, AG Paxton called the latest Court ordered, indefinite hold on removal of life support a “Stay,” as though the doctors, not her multiple medical problems, would kill Tinslee. He also misrepresents the process that Cook’s Children’s Hospital and Tinslee’s doctors followed,
“The statute fails to require that physicians provide an explanation of why they refused life-sustaining treatment and provide the patient’s family with adequate notice and opportunity to argue their position prior to the committee reaching a decision, effectively allowing the government to deny an individual’s right to his or her own life and to do so without due process.”
In fact, though, it is the lawyers, particularly at Texas Right to Life, who are turning a little girl’s tragedy into a continuation of their legal battle against the Texas Advance Directive Act. I’ve covered the benefits of and the struggle to improve the Act – repeatedly blocked by TRTL and their lawyers – for years on both WingRight.org and Lifeethics.org
The Act, TADA, was hammered out in 1999 by a group of stakeholders including patient and disability advocates, hospitals, doctors, ethicists and lawyers. Texas’ prolife organizations, including TRTL and the organization for which I served on the Board of Directors for 15 years, Texas Alliance for Life, and for whom I wrote this essay.
Briefly, TADA allows a balance and legal options when there’s a difference in opinion between a patient’s desire for a given treatment and the medical judgment (a combination of education, experience, and the standard of care) of the doctors who are tasked with the most difficult medical and surgical cases.
I’ll admit that it’s my opinion – and only my opinion – that the lawyers hate that TADA provides a safe haven from lawsuits if doctors follow the law (!). I slowly came to this conclusion over the years because at virtually every Legislative hearing and stakeholders’ meeting about any changes to the Act, the lawyers bemoan the fact that doctors don’t have to go to court over each of these cases and that they face no legal penalty or “liability.”
Poor Tinslee Lewis will most likely never leave the hospital alive. Disease and death don’t respect “due process,” but, they are predictable and an inevitable part of life. Hopefully, we will see her mother and those who love her come to find peace with her death, celebrating the time they’ve had to be with her, especially these last 2 months. However, I fear that the lawsuits will continue for years, adding to their grief.
Edited 1/19/2020 for a typographical error: in the secondparagraph, “cardiogenic” replaced “carcinogenic.” BBN
♡Ebstein Anomaly – Cardiac Pathology 101, about as simple as I can make it (and understand, too);
Babies born with Ebstein Anomaly have a malformed right and atrium and ventricle and misplaced (tricuspid) valves between the right sided ventricle and atrium. The larger right ventricle can’t pump efficiently.
In addition, the blood the right ventricle tries to pump into the lungs leaks/flows/churns (risking blood clots) back into the right atrium, which grows even bigger, with even thicker walls. The ventricle also grows bigger. When the muscle fibers of the chamber walls get stretched apart enough, they are less inefficient. (Think of two hands gripping at the fingers. The farther out the grip, palm > 1st joint > fingertips, the less strength and pull on the opposite hand.) (For the geeks: Frank-Starling law.
The lungs aren’t efficiently filled with blood, they don’t expand, the pressure builds up in them and efficient exchange of gasses doesn’t take place.
In the meantime, the blood backs up in the body, the liver, kidneys and extremities & eventually the left side of the heart, which can hypertrophy , too.
The enlarged heart puts pressure on the lungs and nearby soft tissue, including the blood vessels coming to the heart.
The combination of leaking high pressure blood vessels and the body’s increasing fluid in order to try to pump what oxygen there is, leads to edema or swelling of the body.
Sometimes, the fetal atrial-septal defect stays open, allowing mixing of the un-oxygenated blood from the right, with the oxygenated blood. This malfunction can help, temporarily.
With the high pressure, poor flow, and actual physical damage due to the mass of the heart, none of the organs can function well. Increased activity, stress, and growth will increase the demand for oxygen, kidney & lung function.
•Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States.
• Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring citizenship under INA 320.3
Not the hype you’re reading about in the news.
Edit: Penultimate sentence: “18” instead of “28.” On September 3, 2019. BBN
The killings alone are enough to prove the killers are evil and full of hate, but their history and social media portray individuals focused on hate, erasing all doubt. It appears that the Texas shooter identified with white supremacists white supremacists while also professing to be anti-government and anti-corporation, while concerned about the environment. The Ohio shooter was known to be obsessed with guns, had participated while armed in a counter-protest against white supremacists and was politically left-leaning. The motives of the California shooter aren’t clear at all.
“””The age to purchase a firearm is 21. The state requires gun owners to obtain licenses and face background checks as well as imposing waiting periods on firearms purchases. Judges can take guns away from owners who are deemed to be a threat to themselves or others. And recent legislation aims to begin a fingerprinting database of all gun owners in the state.””
“””Apparently it doesn’t work like that. (Someone should tell our elected leaders.)””
One Texas Right to Life (TRTL) lawyer has posted an update on Facebook about the “rescue” of Mrs Carolyn Jones. I’m afraid that, as with the declaration that another patient was “slain,” TRTL is gaming the Medicare funding and Texas medical systems for political purposes.
Emily Cook, General Council for TRTL, wrote that she worried that “funny business clinically would happen as we moved her” from the hospital where Mrs. Jones has been admitted for over 6 months, where the docs had weaned her off the ventilator and wanted her to transfer to a more appropriate level of care facility over 2 months ago.
Emily says TRTL spent their own money (*see my last paragraph) to put her in a private ambulance and take Mrs. Jones to another hospital ER. That hospital couldn’t provide dialysis, so they in turn transferred her via ambulance somewhere else, to yet another hospital until admission can be arranged at the nursing home.
Cook-ing the system
Mrs. Jones’ Medicare funding for the original hospitalization is bound to have run out some time ago. Normally, Medicare will allow 90 days per admission, with an extra 60 “reserve” days, once per person, per lifetime. The patient is responsible for part of the bill from the first day of admission, and for the total hospital costs after the eligible days.
But there are still Medicare regulations to deal with in the case of “Medicare eligible” patients, even when they aren’t paying.
Medicare makes it very difficult and risky for everyone to navigate the private pay process. When I had a question in my private medical office about whether Medicare would cover something, we had the patient sign an informed consent agreement and an acknowledgement that the patient might have to eventually pay if Medicare denied the service. Then we performed the service, filed the charge with Medicare, waited to be denied, and then tried to Bill the patient. I gave away a lot tetanus vaccines and removed a lot of moles and warts for free to avoid the risk of “fraud and abuse” from the likes of Janet Reno.
The same risk would have applied if the hospital had privately charged Mrs. Jones’ Dialysis.
I don’t believe the first new hospital is at risk for a charge of “dumping” if they documented a legitimate reason. However, both new hospitals will be able to charge the Jones copays and co-insurance. They may also find Medicare coverage limited because of the way Mrs. Jones left the original.
“Medicaid limits 2019” (a .PDF)
I certainly don’t know the Jones’ financial circumstances, and I may have over estimated the maximum income in early speculation. However, there are strict maximum Medicaid income and asset levels. These vary according to age, disability, and marital status. (Even the government bureaucratic Leviathan doesn’t want the spouse if a nursing home patient to end up indigent.)
In my experience, the social workers and benefits experts at hospitals and nursing homes are experts at negotiating and translating the bureaucracy. In addition, the disabled Medicare eligible person will have access to a benefits specialist. I’ve never had a hospital discharge and nursing home admission blocked by this “paperwork.” Certainly not for months at a time.
I hope TRTL assists the Jones family with what is certain to be several enormous hospital bills. As long as they pay the bills directly, the funds won’t be counted as income to Mrs. Jones.
they now post that a woman, Mrs. Carolyn Jones, had to be “rescued” from hers, “racing” to another facility “in the middle of the night.”
The family were given notice that they needed to transfer Mrs. Jones in March. They’ve had another doctor and three facilities capable of providing the treatments she needs waiting to accept Mrs. Jones.
And now, TRTL – in direct competition with – and with absolutely no mention of – Mrs. Jones’ family’s GoFundMe campaign – has been raising money in Mrs. Jones’ name. They state that the funds will be used for (TRTL) lawyer’s fees in addition to Mrs. Jones’ healthcare needs and that “excess” funds will go to help (TRTL’S) efforts for other patients.
I hope that TRTL’s money will also be used to pay for the very large hospital and doctor’s bills that the Jones family will receive. While there’s a chance that Texas Medicaid will pay for three months of medical bills, retroactively, Medicare doesn’t pay for hospitalizations over 90 days and has a 20% co-insurance (co-pay).
That’s bound to have added up in over 6 months.
We’ll just have to trust that TRTL won’t lie again.
Edit, Updated information:
One of the bloggers has told us more about that “rescue.” (Or today’s story, anyway.)
TRTL put her in a private ambulance and took her to *another ER,* one that couldn’t provide dialysis, so they then transferred her somewhere else.
There were comments about the first Hospital refusing transfer — no, refusing to be complicit with “dumping” a patient. Discharging to without ( or even with) acceptance of the transfer from the docs at the other facility is highly irregular and likely illegal.
Much has been said about funding. Yes. It appears that Medicare funding ran out, so no longer paying. 90 days per admission, with an extra 60 days over, under certain conditions.
About that Medicaid funding: I don’t know the limits of the mandatory asset tests, but the yearly income level is $60,000. One way to adapt is to spend money on medical costs.
Medicare makes it difficult to navigate the private pay process. When we had some question, we got informed consent, promise to pay, then performed the service, filed with Medicare, waited to be denied, then tried to Bill the patient. The risk is always a charge of “fraud and abuse.”
The same thing would have happened if the hospital had privately charged for Dialysis.
There’s an exception for the life of the mother. Doctors can be prosecuted, but mothers can’t. (Similar to the way we treat assisted suicide: the one who assists can be prosecuted, the victim isn’t, if he survives.)
Twitter is filled today with outraged hashtags: #HumanRights #HumanRightsAreWomensRights and #RoevWade
(I’ve had to create #NoIDidNtSayThat )
Eggs stop being eggs, or part of the woman’s body, when fertilized.
In #RoevWade, Blackmun stated that science doesn’t say when life begins. Louise Brown, the first “test tube baby,” was born just five years later. Any employee of an in vitro fertilization clinic can tell you the difference between the flasks with gametes and the ones containing embryos.
The embryo conceived by human parents is no other species. I can show you proof that he or she is the same human organism from the time the human sperm penetrates the human zona pellucida and enters the oocyte. From that moment, meiosis begins and the embryo refuses all other sperm.
Elective abortion infringes – aggresses – against the human rights of the one killed – and the people who are defrauded into believing the lies.
Everyone’s Human Rights are stronger when we recognize that all are equal & weakened when we call anyone less than human-enough. Disaster always follows.
Our Declaration of Independence declared that all are created equal, and legitimate government is organized to protect our individual rights.
All humans, even new humans, are human-enough to possess human rights.
(Edited typos 5/15/19 9:29PM. BBN)
Western classical liberal ethics has favored “deciding” that all humans are human-enough to possess human rights. 1.Are they human? 2.Can we kill them? The answers have been increasingly 1. Yes, & 2. No. That’s not #Patriarchy. It’s a good basis for a #sentient, civil society.
HatTip to a FB poster, Clint Stutts, for the questions.
Mrs. Jones is not dependent on the ventilator.
In fact, it sounds like Mrs. Jones has had excellent treatment at the hospital,
Mr. Jones told the Texas Senate Health and Human Services Committee that the doctors at the hospital successfully weaned Mrs. Jones from the ventilator.
He also said that three other facilities are ready for her admission.
I’m happy to see that today’s article by reporter Tony Guajardo quotes both opponents and supporters of TADA and corrected the impression that Mrs Jones is dependent on the ventilator: “She requires dialysis, occasionally needs a ventilator for breathing assistance, and uses a feeding tube.“
There’s also a quote from Mrs. Jones’ daughter, repeated from the earlier article: ““My mom is going to die on Monday because of a law that saves hospitals money.”
It turns out that money and Medicaid paperwork is actually what is keeping the family from allowing Mrs. Jones to be transferred to another doctor and facility. The family is concerned that they (rather than the hospital) will be responsible for the costs of Mrs. Jones’ care.
This is in spite of the fact that when a patient first goes on dialysis, she becomes immediately and automatically eligible to apply for Medicare and Social Security Disability.
Depending on assets and income, patients unable to work on dialysis also qualify for Medicaid and other State benefits in Texas. Medicaid will even pay bills retroactively for three months.
The good news is that she isn’t dependent on the ventilator, dialysis is not constant but only 2-3 times per week and paid by Medicare, food and water by the feeding tube can’t be withheld under TADA.
Hopefully, the Jones family will finally agree to transfer her, even if costs them more than her Medicare & Social Security Disability will pay.
Now, Texas Right to Life is blatantly lying, posting an article on their website entitled “American hero slain two days before Christmas …”
Far down in the piece, there’s this:
“Chris passed away naturally on December 23, 2015 – two days before Christmas.”
Mr. Dunn died from his metastatic pancreas cancer, on full medical treatments. His mother, Mrs. Kelly actually thanked those who cared for him at the hospital.
Every article on TRTL’s website has a “Donate” button at the top, prioritizing money over the people whose stories they use to raise money and influence the Texas Legislature. Now, we see this completely dishonest caption.
Just what is their mission and how can we trust them?
I don’t understand why TRTL repeats that a ventilator tube prevents Mrs. Jones from speaking or eating. Mrs. Jones has a tracheostomy in place (the tube we see in the pictures is a feeding tube). The tracheostomy, even when a ventilator is attached, would not interfere with her ability to speak and swallow, with training.
What a tragic story!
While I only know what I’ve seen online, in my experience, it appears that the dispute about Mrs. Carolyn Jones is over continued hospitalization at this hospital, versus transfer to care at another facility.
(See this television news report.)
I’m the first to say that hospitals are scary places and to sympathize with families struggling to cope with the bureaucracy and protocols. However the current news, press releases, and pro-life blogs are reporting several errors and omissions about Texas’s law and legislation up for consideration in Austin.
The obvious errors in this report include:
1. First. It’s not correct that Mrs Jones will die on Monday, even if the ventilator is turned off at the hospital. She’s not intubated through the mouth or nose. Instead, there’s a tracheostomy and a feeding tube in place. Supplemental oxygen could be provided many different ways, at home or in a nursing home.
2. Mr. Jones has testified at the Texas Senate Health and Human Services Committee meeting (EDIT: the video is here, at 52 minutes in) on 4/10/19 and elsewhere that Mrs Jones had been weaned off the ventilator, needing it only occasionally, at night.
2. She should be able to speak and swallow with training.
3. Texas Advance Directives Act doesn’t require that the doctor declare the treatment be “futile.” Instead, the doctor must declare that he refuses to follow a certain treatment decision that the patient or family demands .
4. Kidney dialysis is paid for by the Federal government, so the problem isn’t only funding.
In my admittedly limited knowledge about this particular case – it appears that Mr. Jones disagrees that it’s time to move from the hospital to home or nursing home, even after 5 months (not 10 days).
At least since 2005, legislation has been introduced at the State to increase the timeframe to as long as a month. Texas Right to Life refuses to agree to anything other than indefinite treatment, with the doctor forced to act against his will, violating his conscience and ignoring his medical judgement.
TRTL has even clashed with other pro-life organizations and Texas’s Catholic Bishops and “primaried” several conservative Legislators, although they are the only Texas pro-life group that opposes the law.
It would be good to add more time – I don’t know of anyone who disagrees. But there needs to be a limit to how long a doctor is forced to act against his conscience. One Bill that was rumored this year would change the “10 days” to 21 days and add a week to the notification period before the Ethics committee meets. Unfortunately, it never got past the Powers That Be.
For more on the ethics of the Texas Advance Directives Act, see this WingRight post.
The most urgent need is communication with families, correcting misunderstandings like those outlined here.
(Edited May 10, 2019 at 12:22 AST, to correct the Link to the testimony of Mr. Jones. BBN)
Texas Right to Life General Counsel Emily Cook is attacking Texas Medical Association on Facebook, even though virtually every other pro-life, medical, nursing, hospital, and disability group in Texas oppose SB 2089 by Hughes, that would change the “Texas Advance Directive Act, “TADA” will harm patients and attack the right of doctors to refuse to act against our conscience.
There’s no leeway, at all, in the new Bill.
If you believe that even doctors have the right of Conscience, and that infringement of the right not to be forced to act against your will is wrong, please contact your Texas Senator and Lieutenant Governor Dan Patrick and respectfully ask that SB2089 not be brought up.
You can let me know if you disagree on my Facebook page.
“[T]he doctor/bioethics committee thinks the patient should die.” Wesley J. Smith, Esq., Texas Senate Health and Human Services Committee, 4/10/2019 LifeNews.com
Wesley Smith is a rarity among the many lawyers who chased bioethics to the bedside late in the last century: he actually believes in the sanctity of human life and in the right of conscience. I’ve attended and reported on his debates and encounters with proponents of intentional euthanasia. And even happily defended him.
Unfortunately, Lawyer Smith was not above spinning the truth this month when he came from California to once again misrepresent the Texas Advance Directive Act (“TADA,” “the Act,” or “166.___”), an attempt to balance conflicting rights when doctors disagree with a patient or his surrogates about actual medical procedures and treatments that the doctor believes harms the patient.
On April 10, 2019 Mr. Smith gave invited testimony to the Senate Health and Human Services Committee in favor of SB 2089 (Hughes) and
SB 2129 (Creighton). LifeNews.com published part of his testimony online, under the title, “Texas Rule Allows Hospitals to Essentially Euthananize Patients After a 10-Day Notification.”
Mr. Smith doesn’t just contradict multiple Supreme Court rulings since Cruzan (1990) affirming that withholding or withdrawing treatment is not equivalent to euthanasia. Paradoxically, he echoes arguments that anti-conscience activists use to justify abortion on demand, Physician Assisted Suicide and intentional euthanasia by a third party by claiming that the principle of autonomy supercedes “First, do no harm,” or non-malevelence, and the right to conscience.
(You can watch all of Part I and Part II of the April 10, 2019 Health and Human Services Committee meeting addressing SB 2089 by Senator Bryan Hughes and SB 2129 by Senator Brandon Creighton online. Part I includes Mr. Smith’s testimony beginning at 33:00/1:01:10.)
We’ll skip Mr. Smith’s assertion that there is a right to force others to provide everyone medical care in general, not just in emergencies or at the end of life. I’ve covered these assertions and his attacks on the Texas Conference of Catholic Bishops I’m, back in 2007.
Today, let’s just look at his spin on the current version of TADA.
Lawyer Smith uses emotionally weighted terms that aren’t in TADA, such as, “life-extending,” “futile care,” “permitting the institution to force its will on patients and families,” “invidious discrimination,” and “inappropriate care.” He contrasts patient’s “rights” with doctor’s “values,” and is the first that day to raise the specter of doctors willing to kill when patients are “expensive.” And, reflected in the LifeNews.com headline, Mr. Smith flatly says that TADA allows euthanasia – intentional acts to kill patients – equivalent to the administration of injections or medications that he wrote about this week.
As I’ve stated so many times in past WingRight.org and LifeEthics.org posts, TADA doesn’t allow us to remove or withhold care for patients, only treatments that are “medically inappropriate.” There are no futile patients, only futile treatments that cause harm to the patient over and over, without any expectation of reversing organ failure after organ failure.
Mr. Smith also ignores the multiple attempts by the medical and pro-life community and Legislature to improve the law’s timeframe and communication, much as Senator Creighton’s Bill. One example from 2007, SB 439 by Senator Bob Deuell, would have required written notice and an offer of a private ethics consult to take place at least seven days before the hospital committee meeting. That Bill had a schedule for giving the patient or surrogates written information about the dispute process, copies of medical records, and lists of resources. The family would have been given access to the committee meeting, with their own advocates. When the committee agreed that the treatment requested was inappropriate, the family would have receive assistance in searching for7⅞ another doctor or facility for at least another 21 days. I believe that the Bill bogged down in the House because of opposition from Texas Right to Life to any Bill that did not include liability for doctors and the indefinite “treatment until transfer” in this year’s SB 2089.
In the last five minutes of the Part I video, another lawyer, Texas Right to Life General Council Emily Cook, gave us the best clue about the ultimate goal of her organization: “judicial review.”
Ms. Cook and Mr. Smith would have every one of these disputes settled by a Court. This is the Texas trial lawyers’ dream: a huge weapon against our State’s tort reform.
Today, the law specifically allows an appeal to a County probate judge when the Committee agrees with the doctor’s decision. SB 2129 allows a request for an injunction in any Court in the County, enabling “judge shopping.” Since it also prohibits the County from charging the patient or his surrogates any fees, the costs would fall solely on the County.
Ultimately, SB 2129 would make it much, much easier to sue the doctor and the hospital, moving Medical decision-making into the courtroom.
Most of the “stakeholders” for patient rights in Texas (including Texas Alliance for Life, Texas Baptist Christian Life Commission, Coalition of Texans With Disabilities, Texas Medical Association, Texas Hospital Association, Catholic Hospital Association, Texas Nurses Association, and the Texas Conference of Catholic Bishops and many others) oppose both of the Bills that Mr. Smith favored. Since SB 2129 would mandate that the County pick up any Court costs and that the judge make his ruling within five days, don’t be surprised if we hear objections from representatives of these parties, too.
So what’s the “joke?”
It could be the ridiculous notion that Lawyer Smith is a mind reader, able to discern the “invidious” motives for the “discrimination” he feels doctors and hospitals routinely practice:
“To fully comprehend the unjust nature of Texas law in this regard, realize that these “futile care” or “inappropriate care” decisions do not terminate treatment because it won’t work, but because it does. It is keeping the patient alive when the doctor/bioethics committee thinks the patient should die.” (Emphasis from LifeNews.com’s transcript.)
He repeatedly comments that physician’s decisions about medically appropriate treatment are subjective and that they (we) might “project their fears and their desires onto the patient” based on our “values,” rather than medical judgement based on repeated, at least once a day examination of the patient, reports by the nurses and staff and our education and experience.
The joke might be that Lawyer Smith volunteered that the indefinite, repeated evaluation and medical decision-making against the medical judgement of doctors would not be “slavery.” I would like to know what Lawyer Smith calls the legal requirement to use one’s body and brain to carry out actions, including writing orders for nurses and other medical staff, against your will.
It might be tragically funny to watch “judicial review” end up with the two sides hiring expert witnesses – doctors – to give the judge opposing views. There’s dark humor in the realization that ultimately the judge would order the original doctor to use her medical judgement to provide treatment – against her best medical judgement.
But the real joke is that “judicial review” risks the unintended consequence of decisions made by judges like the late t Judge George Greer, who Mr. Smith wrote about in this article.
Comments are closed. Please comment on my Facebook page.
“(22) in complying with the procedures outlined in Sections 166.045iand 166.046, Health and Safety Code, fails to make a reasonable effort to transfer a patient to a physician who is willing to comply with a directive.Amendment No. 5Representative Toth offered the following amendment to Amendment No. 4:Amend Amendment No.4 by Toth to CSHB 1504 on page 3, line 25, between “Code,” and “fails”, insert “willfully”.””
Edit 19 April 2019 BBN: Comments are disabled here. Please comment at my Facebook page, “Beverly Nuckols.” https://m.facebook.com/story.php?story_fbid=10218835564657861&id=1163711361&refid=52&_ft_=mf_story_key.10218835564657861%3Atop_level_post_id.10218835564657861%3Atl_objid.10218835564657861%3Acontent_owner_id_new.1163711361%3Aoriginal_content_id.2226941544065344%3Aoriginal_content_owner_id.110756395683880%3Athrowback_story_fbid.10218835564657861%3Apage_id.110756395683880%3Astory_location.4%3Astory_attachment_style.share%3Apage_insights.%7B%22110756395683880%22%3A%7B%22role%22%3A1%2C%22page_id%22%3A110756395683880%2C%22post_context%22%3A%7B%22story_fbid%22%3A2226941550732010%2C%22publish_time%22%3A1555527649%2C%22object_fbtype%22%3A32%7D%2C%22actor_id%22%3A1163711361%2C%22psn%22%3A%22EntStatusCreationStory%22%2C%22sl%22%3A4%2C%22dm%22%3A%7B%22isShare%22%3A0%2C%22originalPostOwnerID%22%3A0%7D%2C%22targets%22%3A%5B%7B%22page_id%22%3A110756395683880%2C%22actor_id%22%3A1163711361%2C%22role%22%3A1%2C%22post_id%22%3A2226941550732010%2C%22share_id%22%3A0%7D%5D%7D%7D%3Athid.1163711361&__tn__=-R