Comprehensive review of Texas’ Heartbeat Act

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)

Secular Pro-Life Perspectives

Wednesday, September 29, 2021

The Texas Heartbeat Act: Answers to 11 Frequently-Asked Questions

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.

1. What is excluded from the definition of “abortion”?

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.

2. How are medical emergencies handled?

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.

3. How are fetal anomalies addressed?

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.

4. Could women be sued for procuring abortions in Texas?

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;

5. Could women be sued or held liable for leaving Texas to procure abortions in another state or country?

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:

• Delaware (11 Del. Code §652) – Class A misdemeanor (past viability)
• Nevada (Nev. Rev. Stat. §200.220) – Manslaughter (past 24wk)
• Oklahoma (21 Okla. Stat. Cit. §652(E), §691(D), §713(C)) – Manslaughter (if during commission of another crime)
• Utah (Utah Code §76-5-201) – Women only exempted from homicide laws in regards to legal abortions or unintentional actions.

6. Could taxi drivers and rideshare drivers be liable for transporting women to receive abortions?

This would take a very liberal interpretation of the new Sec. 171.208(a) to include drivers under “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
3. intends to engage in the conduct described by Subdivision (1) or (2).

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.

7. Could the rapist of a woman receiving an abortion sue the physician or anyone else involved for $10,000?

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.

8. Can anyone claim “bounty” after an abortion is performed?

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.

9. What method must be used to determine the fetal heartbeat?

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.

10. How far into pregnancy does the abortion ban take effect?

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.

11. Did the Texas legislature increase funding to social programs within the Texas Heartbeat Act?

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:

• Counseling, mentoring, educational information and classes on pregnancy, parenting, adoption, life skills and employment readiness.
• Material assistance, such as car seats, clothing, diapers and formula.
• Care coordination through referrals to government assistance programs and other social services programs.
• Call center for information and appointment scheduling.
• Housing and support services through maternity homes.

Additionally, the budget increased the following:

• $135.5 million for various mental health programs
• $10.2 million for women’s health programs
• $123.5 million for rural hospitals
• $164.2 million relating to foster care
• $57.6 million for combatting human trafficking

Photo by Matt Walsh from Unsplash

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James Baldwin debates William F. Buckley, Jr., 1965

James Baldwin is still pointed used as an example in efforts  to accuse the current US of subjugation of Black Americans and other minority groups. This happened to me just last  week on Twitter – for some reason,  in support of elective abortion on demand.

So, I’ve done some research.

This debate took place at Cambridge University in the UK, in 1965. In the US, the March on Selma, and the arrest of Martin Luther King, has just occurred. Dr. King was still imprisoned. The Civil Rights Act of 1964 was slowly taking effect.

In contrast to  Mr. Baldwin’s dismissive comments, a Black man was elected President of the US in 2008. We’ve not eliminated prejudice, but our progress against discrimination has more closely mirrored the predictions of Robert Kennedy than those of Mr. Baldwin. 

No, I don’t believe that the American dream has been at the expense of the American Negro and I don’t believe that race discrimination in 2021 can  be  compared to  Mr. Baldwin’s (or Martin Luther King’s) 1965.

Newly created artificial wombs in mice raise concerns among abortion supporters

https://righttolife.org.uk/news/newly-created-artificial-wombs-in-mice-raise-concerns-among-abortion-supporters

Shouldn’t everyone should be concerned that anyone could object to saving the life of a human,  at any stage of life? How telling that  the  major  concern here seems to be. “Any unborn child could be considered to have a right to life”.

The eugenic and social  implications  go further than  the right to life, alone, according to thid op-ed from the  UK Guardian,

“”Many tech and media companies, including Apple, Google, Facebook, VICE and Buzzfeed, already offer to cover the cost of freezing their employees’ eggs so they don’t have to worry about dwindling fertility during the most productive years for their careers. Gestating a baby in an artificial womb may one day be a choice open to elite women whose companies will pay for it, or who can afford to cover the cost themselves. “Natural” pregnancy could be seen as a sign of poverty, of unplanned pregnancy, or a chaotic lifestyle.””

I sincerely doubt that there would be a stigma attached to natural,  in utero, gestation. Couldn’t the decision to gestate be seen as a mark of wealth and leisure? Or rebellion against technology as breast feeding and natural birth were, back in the  mid- to late- 1900’s?

Science fiction authors have addressed these issues. Yes, there are potential ethics problems in any future technology that allows human gestation outside of the mother’s body. However, validation of the right to life should not be a “concern.”

Planned Parenthood’s “Watchlist,” false report about pro-life activists to local police

LiveAction reports that Planned Parenthood sent “watchlist” to Lubbock police before the January March for Life, including photos and
date if birth, other personal informatiion, and designating some of the men and women as “aggressive.”

Apparently, some”central” office of PP made up the list, which makes is wonder how many other local police departments received such lists & what they’ve done with them.

What did PP hope to achieve? Threats against activists by police? Before a pro-life event?

Reporting people who have not committed crimes to the police goes beyond “cancel culture.” Isn’t there a law against false reporting in Texas?

Right to Life, COVID, 16 May, 2020

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.

Washington Post attacks Life via Texas

New Political Party?

Claiming that ” ‘conservative’ and ‘Republican’ are now mere team names that have lost all meaning,” pseudo-Conservatives are trying to start a new movement, possibly a new Party. However, their #PrinciplesFirst aren’t Conservative.

The Principles have at least two fatal flaws.

1. They’re based on man-made law & artificial designations of “persons”& “citizens,” not on inalienable rights endowed on “all men” (humans).

The Constitution of the United States is an unique, exemplary document. But its strength and legitimacy depends on the concept of inalienable rights of humans that are not endowed by laws, men or any powers that be of this world. The Constitution can be amended. Human rights can only be infringed.

2. The list also errs in supporting “Each and every family unit – regardless of its shape.”

Would these families include those shaped by polygamy? Why not?

The Republican Platform can be downloaded for reading, here.

The Platform confirms most of the items in the Principles First list. However, the Preamble of the Republican Platform is clear on its origin:

“”We affirm — as did the Declaration of Independence: that all are created equal, endowed by their Creator with inalienable rights of life, liberty, and the pursuit of happiness.”

And equally clear on the”shape” of the family:

“”It is the foundation of civil society, and the cornerstone of the family is natural marriage, the union of TT man and one woman.””

Correct these errors, and the “new” Principles would be indistinguishable from that of the Republican Party Platform. The effort should be to hold our elected officials to the Platform, to strengthen our Party, maintain and expand our Seniority in the Senate, win both back in the House. It’s certainly not Conservative to tear down. #FirstPrinciples

Arguing Abortion on YouTube

I usually agree with this doctor. But not about abortion. ZDoggMD, Zubin Damania, has a sense of humor and a sense of balance. But today, he demands that we to “come to the center” because 1 in 4 women in the US have an abortion by age 45. “It happens.”

Well, according to the 1860 US Census, approximately 25% of families owned slaves. “It happen(ed).” Common ground was hard to find there, too.

Alabama bans all elective abortions

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)

Life Ethics

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.

End of life or end of hospital stay?

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)

Emergency: Liberty Right Infringement

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.

We’ve worked to fix other problems: Artificially administered food and water, even full IV feedings, can‘t be removed. Texas law didn’t even mention DNRs, but last session, we passed an amendment with explicit procedures and informed consent language.

SB 2089 specifically says anyone can file a lawsuit in any Court in the County, the Court can’t charge the patient (or surrogates) any fees, and the judge is required to rule in 5 days.

Another kind of lawyer joke

“[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.

Prenatal manslaughter?

Something to consider, from a question on Facebook about abolishing abortion and my discussionof the human rights of prenatal human beings:

“I read the article. It seems filled with potholes to extend personhood to an embryo. Would then a mother who, through negligence, caused death or damage to the embryo, say [by] falling down the stairs or drinking alcohol, be guilty of manslaughter?“

My answer:

The prenatal human is undoubtedly a member of our species, correct?

The risk of abusive prosecuters doesn’t negate the human right not to be killed or justify two classes of human beings, some with human rights, some not human-enough. It certainly doesn’t justify the current abortion on demand: New York’s abortion until birth or Vermont’s proposedconstitutional amendment that prenatal humans “shall not have independent rights under law.”

This is where there is a clear physiologic and philosophic difference between negligence after birth and before. There is no other human relationship equivalent to pregnancy and gestation. Before birth, she’s harming herself first, the child secondarily.

Just as some people had to learn to accept the full humanity of emancipated slaves, there will be a learning curve for the full humanity of the prenatal human. We can do better than Reconstruction and much better than Jim Crow.

There’s previous experience taking the unique relationship into consideration. We already deal with children harmed by alcohol abuse or born addicted to illegal drugs every day.

While there have been abuses, like the drug testing of mothers in South Carolina, it has been more productive to treat addiction than to prosecute as crimes.

*********

Please comment at my Beverly Nuckols Facebook page.

HB 896 Abolish abortion in Texas

#HB896 @TxLeg

The Texas Legislature only meets for 4 months, every other year. Every session, several Bills are introduced that would regulate abortion in our State. Monday night, April 8,the House Committee on Judiciary and Civil Jurisprudence, chaired by Representative Jeff Leach, heard testimony on HB 896, authored by Representative Tony Tinderholt. HB 896 would change Texas law to treat elective abortion for what it is: the intervention intended to kill a member of the human species. The law would require that abortion be treated the same as a felony murder is treated by Texas law: “entitled to the same rights, powers, and privileges as are secured or granted by the laws of this state to any other human child.”

You can watch the testimony in the House Broadcast Archives.

Those of us who believe in human rights must decide whether laws can legitimately divide humans into two classes: those members if our species who are and those who are not human-enough to possess legal, protected (“inalienable”) human rights.

Yes, the law would create complications in a world that’s become accustomed to the act of elective abortion, “spare” human embryos, fetal research on aborted children, and arbitrary “choice” as to which babies live and which are susceptible (in New York State, for instance) to killing on the day before they become citizens by being born.

However, we know how to deal with those complications, because of lessons we learned in our Nation’s history of slavery and the abolishment of slavery. The lives and livelihoods of slave brokers, slave breeders, and slaveholders were disrupted by declaring slavery illegal in the United States, with penalties.

The (dreadful) Supreme Court Dred Scott decision about the status – the “inferior” humanity – of Black slaves has never been overturned by the Courts. In that 1850 ruling, Chief Justice Roger Taney stated that the Constitution affirmed that black slaves were not only property, but “beings of an inferior order” and that they and their descendents could never be citizens of the United States.

Ultimately, a Civil War and Constitutional Amendments 13, 14, and 15 were necessary to outlaw slavery and allow black persons, including former slaves and their children, to become citizens. The 14th Amendment also protected non-citizens, prohibiting laws which “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

A Constitutional Amendment may be necessary in this case, too, but I don’t think so, because of the way Roe v. Wade was decided.

Roe v. Wade is the Supreme Court decision that declared that there was a “right” to abortion under the Constitution. Justice Blackmun refused to

“. . . resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

“Man’s knowledge” has developed since 1973. Philosophers and theologians may still argue (as they do about the civil rights and personhood of neonates, the disabled, and the elderly) but the science is clear. Ultrasounds, MRI’s, and in vitro fertilization have all demonstrated when the life of human beings begins. Just ask the newest technician in the in vitro lab.

As a doctor, I deny that elective abortion is healthcare. I certainly deny that the baby in utero is a part of the body of the mother. It’s not logical to say that the embryo, then the fetus, is not the same organism that we call a baby as soon as he or she is born.

If nothing else, we now have evidence in the form of serial ultrasounds (US) and in vivo MRI’s that demonstrate that human life is a continuum that begins at fertilization.

Even 30+ years ago in training, I saw US used to follow an oocyte from just before ovulation, to the developing embryo in the uterus a few days later. We’ve all seen the US of children as they develop.

Just this month, a research article in the journal Developmental Cognitive Neuroscience reported on sex differences in functional connectivity of neural pathways in the brain, demonstrated by functional MRI of babies in utero.

Questions were raised by the Committee members and citizens alike about a possible death penalty for the felony murder of the unborn child, about women who are coerced into having abortions and whether or not the mother would be charged and subject to penalties.

Well, what penalty does the State impose for procurement of a contract to kill? What charges are brought against the mother who smothers her baby at birth?

It’s true that laws in Texas have never punished the mother who has an abortion. Part of that is out of compassion for the mother who is seen as a victim of circumstances. However, the main reason is that most laws regulating abortion have been passed under the legislation regulating medical practioners and technology, rather than as a civil or human rights issue.

In fact, abortion performed by the mother has always been treated as self-harm, like attempted suicide. But that custom was established before modern information about human embryology. It was long before medical abortion utilizing Mifepristone ( RU486) or methotrexate. We all know now that the mother is not killing a part of her body in an abortion and certainly not when she pays a third party to do it.

I believe that invoking the threat of the death penalty is a red herring. Our homicide laws recognize the right to kill in self defense (for the life of the mother) and mitigating circumstances such as mental illness and in cases of force and abuse by a third party, allowing for different degrees of homicide.

We don’t, however, allow euthanasia or eugenics in the case of born disabled children or give the mother the “choice” to kill by poisoning or distruction of the body of a child who becomes unwanted after birth.

Texas declared the child an individual before birth back in 2003, creating a penalty for third parties who cause the death of a child, except in the case of intentional abortion by a doctor or when the mother herself acts. There have been several convictions under the Texas Prenatal Protection Act.

In light of our expanded knowledge about human biology, it’s time for the Supreme Court to overturn Roe v. Wade and declare what Justice Blackmun deferred: life begins at fertilization and all humans possess human rights that should be protected by the State.

Maybe I’m tilting at windmills, but I would like to see Texas defy Roe v Wade and pass HB 896.

I’ve disabled comments on the blog. Please leave your comments on my Facebook page, “Beverly Nuckols.”

“KITTENS,” before humans

I didn’t believe the opinion article by Tony Perkins of the Family Research Council, that claimed that a Democrat who voted against last month’s S311, the “Born-Alive Abortion Survivors Protection Act,” had then submitted a Bill to prevent the euthanasia of kittens used in scientific research. I assumed it was a spoof or hyperbole.

KITTENS before babies

But no, a simple search proved that Oregon’s Dem Senator Merkley absolutely opposed the Act, even posting a press release and giving his reason in Twitter, @SenJeffMerkley

The Act would not have criminalized anyone. It would only reinforce and clarify the 2002 “Born Alive Infant Protection Act,” by requiring the doctor performing an abortion to provide the same care for a born infant who is unexpectantly delivered alive during a late term abortion that would be provided to any other child in the same circumstances.

The CDC estimates that about 150 babies are born alive during abortions, each year, while acknowledging that the estimate may be low.

Merkley came up with a cute name for his Bill: “Kittens in Traumatic Testing Ends Now.” It’s a shame he didn’t give as much thought to human babies.

“KITTENS,” before humans

I didn’t believe the opinion article by Tony Perkins of the Family Research Council, that claimed that a Democrat who voted against last month’s S311, the “Born-Alive Abortion Survivors Protection Act,” had then submitted a Bill to prevent the euthanasia of kittens used in scientific research. I assumed it was a spoof or hyperbole.

KITTENS before babies

But no, a simple search proved that Oregon’s Dem Senator Merkley absolutely opposed the Act, even posting a press release and giving his reason in Twitter, @SenJeffMerkley

The Act would not have criminalized anyone. It would only reinforce and clarify the 2002 “Born Alive Infant Protection Act,” by requiring the doctor performing an abortion to provide the same care for a born infant who is unexpectantly delivered alive during a late term abortion that would be provided to any other child in the same circumstances.

The CDC estimates that about 150 babies are born alive during abortions, each year, while acknowledging that the estimate may be low.

Merkley came up with a cute name for his Bill: “Kittens in Traumatic Testing Ends Now.” It’s a shame he didn’t give as much thought to human babies.

“KITTENS,” before humans

I didn’t believe the opinion article by Tony Perkins of the Family Research Council, that claimed that a Democrat who voted against last month’s S311, the “Born-Alive Abortion Survivors Protection Act,” had then submitted a Bill to prevent the euthanasia of kittens used in scientific research. I assumed it was a spoof or hyperbole.

KITTENS before babies

But no, a simple search proved that Oregon’s Dem Senator Merkley absolutely opposed the Act, even posting a press release and giving his reason in Twitter, @SenJeffMerkley

The Act would not have criminalized anyone. It would only reinforce and clarify the 2002 “Born Alive Infant Protection Act,” by requiring the doctor performing an abortion to provide the same care for a born infant who is unexpectantly delivered alive during a late term abortion that would be provided to any other child in the same circumstances.

The CDC estimates that about 150 babies are born alive during abortions, each year, while acknowledging that the estimate may be low.

Merkley came up with a cute name for his Bill: “Kittens in Traumatic Testing Ends Now.” It’s a shame he didn’t give as much thought to human babies.

Please comment on my “Beverly Nuckols” Facebook page.

Rough pro-life waters (#weshootourown)

Calling allies “cancer” and divisive is about as malignant and divisive as it gets!

Mark Crutcher and Troy Newman have co-authored a blog piece over at Life Dynamics that does exactly what they accuse others of doing. They manage to insult sidewalk counselors and Crisis Pregnancy Centers and groups like New Wave Feminists and And Then There Were None. Add in the dark graphics and the sanctimonious, unyielding tone to the accusations, and it’s no wonder our movement hits wall after wall.

What differentiates these two from their designation of “Grandstanders?” Talk about your purity test! 

My instinct as a proponent of “Can’t we all just get along?” was to remember my Mama’s advice: if you haven’t done the bad things they talk about, the scolders aren’t talking about or chastising you. 

And let’s face it, there’s a kernal of truth there: some people are all about power and fundraising and we’ve got to continually educate both new and old activists to focus on our goal of ending abortion.

However, Crutcher and Newman go too far to be too specific and don’t give any consideration – much less kudos – for the possibility that there are effective exceptions within the groups.  While I could point out examples of each of the people they describe, I can easily name more exceptions.

Instead of the negative analogy to cancerous growths, I prefer the picture drawn by my friend, Joe Pojman, PhD., of Texas Alliance for Life. 

Think of our pro-life efforts as attempts to rescue the unborn and their mothers from the sinking ship that is legalized elective abortion. We each have a boat which we use to make trips to bring as many to safety as we can. Every boat is different: Some boats are old and leaky, some are a bit nicer or newer,more or less efficient or are captained by people who wander around a lot and keep making detours, but none of the boats that we have today is big enough or fast enough to save everyone, so we make trip after trip as fast and efficiently as we can. If some of our sympathisers spend time on the shore shooting holes in everyone else’s boat – or anyone else’s boat – fewer lives will be saved. That’s real “mission drift.”

But we can bail water and plug those holes if they’ll just give us a chance.

Clichés are repeated because they prove true, time after time.  Remember this one: “The enemy of my enemy is my friend.” But do we really “educate” with wide condemnation of the efforts of others who approach our goal from a different angle or do we create more of the very harm we are warning about?

Keep building those coalitions, looking for common ground, and plugging along!

Graffiti philosophy

I visited the “dames” (ladies’ room) at the Sorbonne, and closed the door to find the Rosetta Stone for liberal causes.  The back was covered in hand written graffiti and pre-printed stickers: “My body , my choice, etc.,” “Feminist,  and “solidarité” Sharpied in both French and English, and “Antifasciste” and something about student power (it’s my first day) in printed stickers. There were several calls for “Justice” for different causes and individuals.
My first thought was to write a rebuttal to the “My body” claim, then realized that I didn’t have a Sharpie or regular pen and that I’m still a “good girl” who can’t bear to deface someone else’s property.

Besides that, the inalienable right not to be killed isn’t enshrined in the French founding documents as it is in the Declaration of Independence. And the pro-life community doesn’t have ready little bumper sticker phrases that are well known and convey more than the surface meaning.

Why don’t we? If you could, what would you have printed on a 3×5 sticker to win hearts and influence young minds?

The wrong abstinence lesson

About that private Christian high school that refused to allow a girl to walk at graduation. Okay, I get it: you have rules and worry about the influence on younger students.

Yeah, ’cause if your teaching about sin doesn’t prevent other students from premarital sex, not getting to walk at graduation will! Or at least not to let you know about it.

Well, for one thing, this girl has already proven that actions have consequences!

How about the one without sin casting the first stone? Is there no place in your world view for, “Go, and sin no more?”

You’re not celebrating her pregnancy. You’re celebrating her fulfilment of the requirements for graduation. And demonstrating what it means to follow Christ.

 Why not turn this into a lesson on loving the sinner, on promoting life, on the fact that her life isn’t over and even though it will be harder, she can achieve, even without killing her child by intentional interventional elective abortion?

It’s a “March for Life”

2017 Theme March for Life

But if you want information about the (correction,  it’s Friday,  not Thursday,  repeat as necessary  ) Friday , January 27, 2017 March, you probably should search for “Anti-abortion March.”

The New York Times managed to “report” that Kellyanne Conway will speak at the 2017 National March for Life in Washington, DC on Friday , without once calling the March by its proper name. The only time the organization responsible for 44 years of the “Anti-abortion March” is named, is when giving the job title of the president of March for Life, Jeanne Mancini.

2009 National Rally for Life

This year’s March wasn’t held on the anniversary of Roe v. Wade, as it has been in the past, due to the inauguration events on Friday and, I suspect, the Women’s March on Saturday. The inauguration events didn’t prevent us from attending the 2009 March the day after Barack Obama was sworn in, but I imagine the concern about the two opposing groups clashing in front of the Supreme Court was just too much this year.

Friday  is probably not the best day for families, school groups and people who have regular jobs, but I expect it will be well attended, since we’ve been promised a “heavy administration presence.” There have been related Marches for Life all over the country all week (Idaho, San Francisco, Tulsa and Raleigh, where it was noted that both the Women’s March and the March for Life were held at the same time – but across town from one another.)

You might also search for “Rally for Life,” as the Texas Rally for Life will be held in Austin on Saturday, January 29.  Beginning at 12:00 – 1:00 PM, marchers will gather at 18th & N. Congress Ave. and then begin the short march to the South Steps of the Texas State Capitol.

(Edited to correct the day of the week of the March for Life in Washington,  DC.  BBN) 

Honk if you love pizza and abortion!

​Perfect pro-abortion slogan: “Honk if you love pizza and abortion!”

Because, equivalent, yes? And illogically proud of it – see the young woman in the left lower quadrant. That sign certainly is evidence that “reproductive rights” advocates are, indeed, “pro-abortion.” 

The Texas Tribune is providing its usual biased coverage of the Texas Legislature. The editors allowed the banality of a pro-abortion sign equating the love of abortion and pizza to creep into their report on the fears of the groups who make a profit from ending the lives of the most vulnerable humans and their advocates. 

There’s no logic in claiming that an abortion doesn’t end the life of a human. With current science and technology, it’s anti-science to make such a claim. Proponents of elective abortion deny that every human is endowed with inalienable rights. Instead, they defend the falsehoods that embryos and fetuses are less than human and definitely not human-enough to possess inalienable human rights. 

As to the complaints about insurance coverage for abortion? It’s called, “Elective abortion.” Insurance shouldn’t pay for “elective” procedures. And seriously: “a rider” to pay for elective abortion?  How fiscally responsible is that?  

“Heart” if you (heart) graphic proof of illogic and irresponsibility

I hope you can recall this

The future includes so much more than a 10 year old video, for people who don’t have memory problems.

Forget the Clinton’s sale of nights in the Lincoln Bedroom and misplaced furnishings from the White House and, later, the State Department offices. Go ahead, laugh at the “Reset button.”

But don’t forget the pay-for-access that continues to this day. Please don’t dismiss Clinton’s complicity with the sale of US uranium and her own dismissal of the deaths of four Americans at Benghazi or of “our posterity” in the case of the unborn children whose lives are ended by elective, intentional abortion.

These recollections make a difference today and for the future.

What place will there be in a Clinton II Administration for people who oppose abortion or who prefer to continue to include “under God” in the Pledge of Allegiance? Can we tolerate another 4 years of IRS discrimination against conservative non-profits? Do we need to have more lawsuits against nuns or regulations forbidding Christians from praying in the name of Jesus?

We certainly won’t be invited to any closed door meetings on HillaryCare. And there’s no telling how many boxes of FBI files and billing records will disappear never to be “recalled” if Clinton gets another shot at the White House.

I would much rather hold Donald Trump to his promises than watch Hillary Clinton keep hers.

Beverly B Nuckols, MD

RedState vs. Pro-life

​There is only one candidate on the November ballot for President this year who states that he is pro-life.  Even if Donald Trump is inconsistent – and he is, I’ll admit – the fact is that Hillary Clinton and Gary Johnson are very consistent in their advocacy for legal elective abortion. Trump may have said that Planned Parenthood does good work, but Clinton campaigns with Cecile Richards.

RedState has lost all relevance as a reliable source for conservative commentary, in their zeal to defeat Donald Trump.

First, the moderators began banning commenters who simply questioned RS authors during the Primary. Now,  Discus and comments have disappeared entirely  from the site, and any public feedback  is moved to the ephemera on Facebook. 

The latest supposedly #NeverTrump move is an attack on pro-life
organizations by the editor, Leon Wolf, who once stated that he would vote for Clinton over Trump in a close race for President. 

Yes, Pro-life Bills are often weak, incremental compromises. We face the reality of needing to win at least some Dem votes and the probability of vetoes. The Press invariably paints usas evil. As Wolf pointed out – and the Supreme Court ruling on Texas’ HB2 clearly showed – the current Courts are stacked against us.

One of my friends acknowledged the weak Bills and compromises that our legislative efforts sometimes become, likening our efforts to lifeboats.  Rather than big, shiny, well-crewed ships to use to rescue the unborn, we are forced to borrow any thing that floats. Our crafts are ugly and leak, and we constantly have to worry that we will sink. This is all we have, but we go back again and again, to rescue as many as we can without each trip.

Leon Wolf just shot a few new holes in our efforts, from his safe harbor at RedState.

Human rights for this class of persons?

How human is human enough for human rights?

Justice Taney on slavery, in the ruling on the Dred Scott case:
“”

The question before us is, whether the class of persons described in the plea in abatement [people of Aftican ancestry] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. “

Nevertheless,  today’s Supreme Court hearing didn’t deal with the question of whether the zygote/embryo /fetus is human enough. It dealt with the regulations for abortion businesses and the doctors who work for them. These are essentially the same rules imposed on Federally Qualified Healthcare Centers.

Doctors must offer continuing care and the buildings should allow safe egress and sanitary standards of care.  The challenge is against State protections for the women who have chosen abortion.

Posted from WordPress for Android. Typos will be corrected!

“Inaccurate and misleading” (Cruz attacks on Rubio)

At the Faith and Family conference, Senator Ted Cruz claimed that Senator Marco Rubio had not supported the defunding of Planned Parenthood by not voting against the annual budget vote in September, 2015.

I don’t know if most of my readers can understand what a big step it is for a group like National Right to Life to enter into this political debate between pro-life candidates. However, this accusation was enough to cause this statement to go out, as reported by Andrew Bair, @ProLifePolitics :

https://mobile.twitter.com/ProLifePolitics/status/698321269687775232/photo/1

“The following may be attributed to Carol Tobias, president of National Right to Life:

“Marco Rubio voted to defund Planned Parenthood before Ted Cruz ever got to the U.S. Senate (see roll call on H. Con. Res. 36, April 14, 2011). Since Ted Cruz joined the U.S. Senate, both he and Sen. Rubio have voted the same on every roll call that National Right to Life regards as pertinent to defunding Planned Parenthood. To suggest that Rubio voted wrong or missed meaningful votes on the Planned Parenthood issue is inaccurate and misleading. National Right to Life is pleased that all of the major Republican candidates for president, Sens. Rubio and Cruz included, have stated that, if elected, they would work to derail Planned Parenthood’s government gravy train. “

Jury Indicts Two Antiabortion Activists Linked to Planned Parenthood Videos – WSJ

Ethics 101: The man and woman who were indicted for their actions exposing the harvesting of baby parts by Planned Parenthood were doing our duty to protect the right to life.

Rights impose duties on third parties, privileges do not.

Abortion, especially elective abortion of healthy babies in healthy mothers, is not a right. It is an illicit privilege granted by an act of law. No one has a duty to enable or act to cause an elective abortion at the request of a woman.

It is an “illicit” privilege, since the right not to be killed is an inalienable right. Each of us in society has a duty imposed by that right to prevent its infringement.

http://www.wsj.com/articles/grand-jury-indicts-2-anti-abortion-activists-linked-to-planned-parenthood-videos-1453761641

Edited 1/27/16 to clean up grammar and add links. BBN

The Ethics of Texas’ Advance Directive Act

Laws relating to medical ethics debates are generally behind medical advances.

Unfortunately, those debates often become emotional and heated, and the individuals who are affected often face the “hard questions” of ethical dilemmas while reacting to life and death emergencies. When law-making is controversial, it’s best to go back to the basics of ethics for guidance: the inalienable rights to “Life, Liberty and the Pursuit of Happiness,” the Declaration of Independence, and Constitution.
All laws limit our rights, but good laws are based on the fact that these inalienable rights are negative rights: they are meant to prevent one person – or the government – from infringing the rights of another. Ethical laws strike a balance between seemingly conflicting rights. They prohibit or punish harmful actions, but they don’t compel a desired action against the will.
However, since there is a hierarchy of rights (the right to life trumps the right to liberty and property, liberty trumps property, etc.), there are very rare circumstances when it is appropriate for laws to compel individuals to act for the benefit of another. These laws should only go so far as to protect the life and freedom of the vulnerable patient or client, for a limited time with the goal of allowing safe transfer of the obligation to someone else.

For instance, parents are required to care for and protect their minor children since they are helpless and unable to legally consent or make contracts. And State laws require that doctors and lawyers be licensed, obtain certain levels of education, and follow specific, positive actions when they wish to withdraw from a professional relationship with or refuse the request of a patient or client.
That brings us to the controversy over the Texas Advance Directive Act of 1999 (“TADA” or “the Act”). In addition to describing “Advance Directives to Physicians” (also known as a “Living Will), TADA also attempts to outline the procedure for resolving any disagreement between a doctor and patients or their surrogates regarding medical treatments, especially concerning end of life care.
When I first read the Act, I (naively) thought it was malpractice protection for doctors who did not want to withdraw or withhold care. There have actually been a few “wrongful prolongation of life” lawsuits against doctors who – knowingly or not – used CPR when the patient had a Living Will.
Most of the time, however, TADA is invoked when the attending physician “refuses” a request to actively administer medical treatment that he or she believes is medically inappropriate. The steps laid out in the law involve the doctor’s notification of his refusal to the patient or the surrogate, the rules for assisting with transfer of care to another doctor who believes the treatment request is appropriate, and asking for a medical or ethics committee to be convened at the hospital. If no other willing doctor can be found and the committee agrees with the doctor, the treatment can be withheld or withdrawn (after 10 days). During that time, full life-sustaining treatment must continue and the hospital is required to provide medical records and to actively assist in looking for another doctor and/or hospital.

The law does never allow patients to be killed by intentionally stopping breathing. The law does prohibit withholding of pain medicine or comfort care and the removal of “artificially administered nutrition and hydration.”
Medical judgment is how doctors utilize our education, experience, and consciences as we plan and anticipate the effect of each medical intervention or treatment. “Life sustaining treatments are not “basic” or “usual care.” Nor are they one-time events without consequences. The interventions require a physician to administer and maintain. They must be monitored by observation and tests, and adjustments need to be made intermittently so that the treatment is effective and not harmful. They may lead to further more invasive and aggressive interventions and the need for the skills of other doctors in other specialties.

In some cases, patients and their advocates report trouble finding other doctors willing to provide the treatment that the first doctor thought was inappropriate. In my opinion, that difficulty is due to physicians’ common education and shared experiences – to medical reality, not ill intent.

Texas law is clear that only doctors may practice medicine by diagnosing and treating patients directly or “ordering” other medical personnel. Although TADA outlines specific duties for hospitals and hospital medical or ethics committees who determine whether or not the care is medically inappropriate, the process can only be invoked by the “attending physician” who is being asked to act against his medical judgment. The committee acts as a safeguard, to uphold medical ethics and the standard of medical care. In a formal meeting, the committee members review the case and either agree or disagree with the doctor as to whether he or she is correct about what is “medically inappropriate” treatment, for the patient.

Unfortunately, the Act has become known as the “Texas Futile Care Law,” and divides even the pro-life community. One side claims that doctors, hospitals and hospital committees are biased and should not be allowed to determine medically inappropriate care, and that doctors are obligated to give any and all desired treatment “until transfer.” Others want each case to go to court, where lawyers, judges and juries would settle every difference of opinion about “medically appropriate treatment.”

Ultimately, even the lawyers would need to consult doctors, unless the judges start writing orders for doctors, nurses, and medical professionals.

Our laws normally prohibit actions and only very rarely compel people to act. Under the conditions laid out in TADA, it is possible that the doctor can be forced to act against his medical judgment, but only for a limited, stated period of time. TADA is an attempt to balance conflicting rights: the patient’s wishes for medical intervention with liberty of the physician to practice medicine to the best of his judgment and conscience.

(Edited 03/11/18 to add a missing quotation mark. BBN)

Texas Supreme Court Rules on Judicial Bypass for Minors’ Abortions

I am glad that the rules are explicit about the duty to report sexual or physical abuse.

Here’s a statement from Texas Alliance for Life, with links to the ruling:

Austin, TX — Today the Texas Supreme Court released rules for how courts handle judicial bypass proceedings regarding secret abortions on minors girls without parental notification or consent. The rules were created in response to HB 3994, authored by Rep. Geanie Morrison (R-Victoria) and sponsored by Sen. Charles Perry (R-Lubbock) and strongly supported by Texas Alliance for Life.

The following statement is attributed to Joe Pojman, Ph.D., executive director of Texas Alliance for Life:

We are pleased with the Supreme Court’s strong rules regarding the judicial bypass process for abortions on minor girls. These bring to fruition a 10-year effort by Texas Alliance for Life and a coalition of pro-life organizations to protect minor girls in Texas from abortion. In 2005, the Texas Legislature passed a bill requiring doctors to obtain the consent of a parent before performing abortions on minor girls. In 2015, the Legislature passed, and Gov. Abbott signed into law, HB 3994 to reform the judicial bypass process by which a judge can allow abortions on minors without parental consent. The reforms closed loopholes and increased protections for the minors from abuse. The Texas Supreme Court has faithfully implemented House Bill 3994 in a way that will best protect the well being of minor girls.

Here is a link to the Texas Supreme Court’s order issuing the rules: http://www.txcourts.gov/media/1225647/159246.pdf.

HB 3994 was one of five major pro-life bills and numerous other pro-life provisions passed in 2015. Here is a summary.