Passing the Buck on Abortion Law in Texas

Hunter Biden remains a problem.

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187

Dispatch Senior Editor John McCormack makes his Roundtable debut with Sarah, Steve, and Mike. They cover:
—The Biden impeachment inquiry;
—House Republicans and Donald Trump 2024;
—The Haley-DeSantis war;
—The Texas abortion controversy and Republicans’ unwillingness to stake out a position; and
—Proper karaoke etiquette.

Show Notes:
—Advisory Opinions on the Texas abortion case
—The Texas Supreme Court ruling

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Comments (187)
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  1. Avatar photo
    O.W.L.

    A bit late to this party but I have been angry about this random dude who just handwaves away risks to the mother and thank you Sarah for standing up to him. I think his name was John? I was so enraged by his ignorance I could not be bothered to find out who he was. People who are that ignorant are not worth listening to.

    In terms of maternal risks Mr. Ignorant--do you know why so many women have C Sections nowadays? It is because even a tiny risk to either the baby or the mom is unacceptable. As in---there is a 5% risk that a prolonged labor will result in oxygen deprivation to the fetus. No question about what will happen--Doc will say here's what we need to do, mom will agree and there is a C section and if all goes well a sore mom, a healhty baby, and a relieved doctor. Now...let's say that the Texas legislature decrees that C sections are against the Bible, because after all God said that women had to suffer in childbirth as a result of Eve's sin. Doctors can no longer just recommend a C section, talk to the laboring woman about the risks and possible outcomes and then do whatever is decided by that conversation. C sections can only be performed if there is an imminent loss of life or major bodily function by either the mom or the baby. Doctors can no longer just make the recommendation and get the OK in the moment--they'd have to submit their recommendation and any input from the patient to a medical review board. If circumstances were iffy, the board would have to go to a court or to another adjudicator. Meanwhile, back in the labor and delivery room, nobody can help the mom or the baby if things go sideways. Well, they COULD but as we know, OB practice is notoriously risk averse. This is why we got a sniveling request to the court instead of an OB going full cowgirl and doing Kate Cox's abortion and telling Paxton to sue her.

    Whoever you are Mr. defending Texas person you have no idea what you are talking about.

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  2. Jen.Crouch

    Sarah, physician heal thyself. Early in this podcast, you said to John that you wanted to know what the strategy should be for taking down the Trump campaign. You heard what the strategy should NOT be, but what should the strategy be? Later, you vehemently stated that the Texas legislature could have written a detailed statute but didn’t. We heard all about what you think the statute should NOT be, but we never heard what you thought it should be. And I think that’s what Steve was pressing you for. I enjoy your intellectual and informed commentary in several different podcasts every week. This seemed like a point on which you could have offered more.

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    1. Avatar photo
      Anthonyjohnmartyr

      ...or, much as I love you, disqualified yourself from the discussion as not even close to a disinterested observer.

      The result being she recommended that abortion be illegal, but always written with gaps you could drive a truck through so as such always available with a venal doctor and a determined mother.

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  3. Gsalas72

    The u-turn of conservatives regarding legislative precision if radical but not surprising. Whether the "don't say gay" law in Florida or this anti-choice law in Texas, they leave the applicability boundaries blurred enough to intimidate parents, teachers, women, doctors, etc. from bringing a book to school or recommending an abortion lest they get on the crosshairs of an AG trying to make a political point.
    Its embarrasing.

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  4. Avatar photo
    Gibby

    So I learned from this:

    1. Steve Hayes cares deeply about Karaoke. I don't think I have thought that in depth about any topic. Steve's analysis reaches an expertise that only Guy Denton could outdo when talking about a KISS cruise.

    2. I now know not to engage in karaoke if it is ever presented at a Dispatch live event so as not to have Steve Hayes looking awkwardly at his shoes.

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  5. Avatar photo
    EmmyCab

    Thank you, John, for your contribution here. After reading the other 140+ comments here... Sheesh. I'm not sure whether or not I'm allowed to even have an opinion on the topic abortion: I have a uterus (which would suggest that I AM allowed to have an opinion), but I've never given birth (which would suggest I'm NOT allowed to have an opinion), and I'm 50 which means I never will give birth (which according to the comments section, also suggests that I am NOT allowed to have an opinion). So two out of three Comments Section Abortion Conversation Qualifiers put me in the Man Camp of Irrelevant Opinions despite the fact that I'm a woman. So instead of trying to contribute anything substantive here, I'll just say "Thank you!" once again to John for your work on this.

    I also really appreciated your December 13th piece on this topic. I live in Texas, and that piece explained this case better than anything else I've come across. I appreciate you!

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  6. Cjohansen7

    There are at least two groups of people who hate karaoke:
    1. musicians/music lovers. Anyone who cares deeply about music recognizes the whole concept of amateurs performing in public, singing along to a play-along jukebox, as insulting to any musical tradition.

    2. ) conservatives. The conservatives of The Dispatch have earned the respect and trust of their readership when it comes to politics, law, and many other fields. Their expertise does not extend to the field of music, however. A true conservative view of music is deeply skeptical of innovation, rock and roll, and the avant garde. And they sure as hell don’t waste their time with something as faddish and juvenile as karaoke.

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  7. Avatar photo
    Nathan

    John is far more convincing than Sarah on abortion laws. We all know by experience that almost any concession to the mother's health that allows for a doctor's discretion will be turned in a loophole large enough to drive a truck through. If this law is so obviously bad, is it so much to ask that we be shown an example of a good law?

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    1. Avatar photo
      Gibby

      I think I agree with you Nathan. John was a rock star on this issue.

      However Sarah's point is about "who decides". And that was a point I couldn't get past. Many times in government bad decisions are made but we preserve freedom by staying in our lane.

      John had a command of all the facts (as usual for the prolife side). But the strongest defense for the pro choice side is who should decide when it is a matter of doubt.

      I mean I have no trust in medical predictions. I can't tell you how many times I meet people who are told that they will be dead in five months and were told that 20 years ago. "you will never walk again if you don't have surgery" and 30 years later they are walking fine. I mean medicine just doesn't have the exactness that we would like.

      So when the statute says that..........who decides? The system will have situations where some tragedy happens so who should decide which way we should go? Unlike Sarah I don't trust the doctors judgement but if not them then who?

      It's a point it's hard to get past

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      1. SkyDoc

        I'm a doctor involved in the obstetrics game. The facts of this case were not difficult from a medical standpoint. Such cases *do* exist, and it is completely reasonable to defer to the parties involved to reach a decision their consciences can allow.

        This doctor in this case was using tortured logic to get to "abortion". And keep in mind that every pro-abortion, well...*abortionist* is, perversely, an obstetrician.

        Pregnancy isn't a disease. It has risk, just like every other human function and activity. Only by refusing to accept that fundamental reality could one get to a place where every pregnancy's risk toward subsequent pregnancies is a medical reason to terminate a life.

        Despite what Sarah kept insisting, this *was* an unwanted pregnancy. We know this because as soon as the baby's disease was known, the mother wanted it gone. What she wanted (what we all want) is a healthy baby. She lacked the courage to face the trial of a baby with Edwards Syndrome. This is the same logic that celebrates the "eradication" of Down Syndrome in certain European nations.

        I, unfortunately, understand the terror of facing the disability and death of one's own child. It is an awful thing. It is also the most important part of being a parent to give that deep part of yourself to your offspring. If not you, then who?

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    2. Aecrowder

      I agree with Sarah. I would much rather these decisions be made between a woman and her doctor, with the doctor being able to do what they think is best based on their conscience and not because they are fearful of being prosecuted.

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      1. SkyDoc

        Doctor here.

        This doctors logic sure as hell wouldn't get past my institution's ethics board. Pregnancy has risks like every other human activity and function, but it isn't a disease. Using baseline risks of a normal function in this way is not only a clear departure from the intent of the statute, it is an obvious attempt to tear down any barrier at all.

        There *are* ambiguous and difficult cases that ought to be left alone. This wasn't one of them.

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      2. Avatar photo
        Tracie

        That's what's been called a "pro-choice" view since the 1980s or so. That's my view and I call it "pro-privacy." However unhappy it made legal scholars, the "right to privacy" cited in Roe v Wade made perfect, intuitive sense to me. However, it's consistent with what I know about the Founders that they wouldn't concern themselves with womens' issues, or universal issues of bodily autonomy when so many people were legally in bondage at the time, so it's probably not specified by the Constitution.

        What I think is difficult if not impossible for those of us who are pro-privacy to empathize with: "pro life" people believe they are advocating for the rights of the embryo or fetus, and do not trust the woman and her doctor to make the correct choice.

        In my conversations, it makes intuitive sense to most women that these decisions should be private, and that women with difficult pregnancies, especially, shouldn't have to hire lawyers.

        "Pro life" advocates, in my view, have long seen this issue as much simpler than it's turned out to be.

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        1. Slowdave1

          When other people are killed, inte tionally, we don't give those perpetrators their privacy. So many of these pro-choice viewpoints completely disregard the position of the pro-life side that abortion is the taking of an innocent life. I take into consideration that the pro-choice side feels restrictions are an invasion of their privacy, doctor-patient relationship, and "bodily autonomy", which makes it very tough to find good compromises. But the pro-choice side generally speaks as though they have never heard that some people consider the fetus a human being and the implications thereof.

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          1. Avatar photo
            Tracie

            I respect that it's an irreconcilable difference. "Pro life" advocates believe that the life or potential life of the fetus, whatever it's effect on the woman carrying it, outweighs her rights to bodily autonomy and medical privacy. That is not ultimately a difference that can be bridged.

            I suspect most of the Founders considered pregnancy and midwifery completely out of their realm of concern. Medical doctors were sometimes involved with pregnancy and delivery in the 1700s, but I know of no signatory to the Constitution who had anything to say about the subject.

            It's only modern medicine and the arrival of "women's issues" under the purview of the law that causes us to have to make decisions about whether legislators and/or judges, or women (or girls) and doctors should make these individual choices. And how they should be judged after the fact.

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        2. Aecrowder

          Love the “pro-privacy” term! Pro-choice and pro- life label are so lacking in nuance.

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  8. Adam Rosser

    Hi all, I am late to the party on this comment thread. Sorry.

    I find these comments interesting because they are split so strongly between Sarah is domineering and wrong, or John is domineering and wrong.

    I had the benefit of hearing Sarah's views on AO first (and David French's), so maybe I am coloured by that. My thought is that John was missing the legal and practical point that Sarah was making.

    I understand that John is strongly pro-life. He seemed to accept that judgment about risks to life and health are medical questions, but was unhappy with the consequence of leaving any discretion up to doctors personally. He wanted detail in the law, or detail in guidance from the medical board/profession.

    To me, while guidance would be great, it sounded like John wanted a (short) defined list of conditions or risks that would allow abortion, with the implication that pro-life activists would then get the chance to second guess or challenge the list. While great for clarity, I suspect it would be a disaster politically.

    The point from the Texas case, as I read it, is that the judges wanted to state that the decision on abortion was a medical one, but did not want to be seen to approving this abortion or any risk factor in particular. They found a (questionable) way out of that problem.

    As an outsider (Australian), the there are two things I don't understand about abortion jurisprudence or ethics in the USA:

    1. Why it is treated differently to self-defence. If a woman has a reasonable fear of death or serious injury from an 'attacker', then self-defence is permitted. Simply apply the same rules to abortion. Reasonable fear -- then abortion is legal.

    2. The reasonable fear test applies to the woman, not the doctor, so it should be the woman who is at criminal risk if acting unreasonably. Putting the risk on the doctor just distorts all of the incentives. The doctor might have some accessorial liability, perhaps.

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    1. Slowdave1

      In response to #1, the "reasonable fear" is a defense to prosecution when one had to defend themselves at the moment and there was no time for a thought out conclusion. In contrast, if I have "reasonable fear" that my neighbor is plotting to kill me in a month, it does not give me license to walk over and shoot him, even if I'm not sure when in the next month it might happen. That defence is relevant only when the situation is immediately imminent. That's why I don't believe it is relevant to the abortion situation.

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    2. Avatar photo
      Kmregan7

      For whatever reason those on the anti-abortion side, despite many believing abortion is murder, do NOT want to take their beliefs to the logical conclusion and prosecute women for procuring a ‘murder.’ They do not have this view of women who hire hit men to murder other people (and that is what they believe a Z/E/F is) so I can only assume they cynically know it will not go over as well as prosecuting doctors (which still isn’t a great look) and therefore their anti-abortion beliefs aren’t taken to the logical conclusion of prosecuting these murderous women for hiring some to kill their ‘child.’

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      1. Slowdave1

        I think everyone realizes that the woman in these cases is already under tremendous pressure and difficulty and adding potential criminal prosecution to her situation is not palatable. And yes, it's also not palatable from a political (voter) perspective.

        So if you want to attempt to reduce abortions through the legal process, the place remaining is the supply side.

        I know it would be wonderful for the pro-choice side if pro-lifers would go after prosecuting the mothers. But that's just not reasonable from a human sympathy standpoint.

        p.s. I'd rather not threaten anyone with prosecution. Just want to see abortions reduced.

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        1. Avatar photo
          Kmregan7

          She’s hiring someone to “murder” her “unborn child.”
          Doesn’t that warrant legal consequences?
          To me that speaks to the underlying idea that women just can’t be trusted- to make medical decisions, to know her own life best, to have moral/religious agency and freedom, or to even understand what abortion is…that so many who are against abortion seem to have often without realizing it.

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          1. Slowdave1

            You're making the "to me that speaks to..." part out of clear air. Pardon my sympathy for the mother with a problematic pregnancy and not wanting to prosecute her.

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  9. Avatar photo
    Patrick

    The pro-life position needs to eliminate the threat of jailing doctors.

    It needs to instead adopt the position of routine, after-the-fact oversight of all decisions made to abort. If a doctor is found to be using *unreasonable* standards on a consistent basis, the doctor loses his or her medical license.

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    1. Dave

      Would we use the same standards about pediatricians whose patients are dying at a consistent rate?

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        Patrick

        Eh, I think medical malpractice laws are sufficient for doctors who are only dealing with a single patient.

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  10. Avatar photo
    Jonmckny

    Why do we have The Skiff if we didn’t get a podcast of the Dispatch holiday karaoke party? These seems like a big miss, this is the kind of content that will drive membership.

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