The nondiscriminatory abortion legislation needs to pass

Outside of the unborn child aspect, the nondiscriminatory abortion legislation also serves an equally important secondary purpose of protecting emotionally vulnerable mothers from undue pressure by doctors.  As many readers here know, my son has Down syndrome and nearly died after routine surgery after birth.  His story is exactly why the nondiscriminatory abortion legislation needs to pass.  This is going to be a long post telling his story, and then going through a legal analysis as to the objection raised by Texas Alliance for Life.

A bit of background information for context is needed here.  My law practice is Social Security disability law, so I spend my days reading medical records, researching medical conditions through medical journal articles, and learning how to read raw medical reports. That will help to explain the activities that happened in the NICU after he had surgery.

Pregnancy and Complications

While not the typical crisis pregnancy scenario, our story is one of a pregnancy in crisis.

We were advised that Kenshin likely had Down syndrome early in the pregnancy. However, my wife refused to accept the diagnosis, and it was not until she was 8 months pregnant that a complication from the Down syndrome was discovered and she accepted the diagnosis. A routine ultrasound at 8 months showed a double bubble, a classic sign of atresia.

To make the situation worse, the obstetrician who had been with us since the beginning said that the atresia made the pregnancy high risk, and that she could no longer provide care. The hospital where we were scheduled for delivery also said that they could not handle the high risk pregnancy. Both dropped my wife and the baby as patients. To further exacerbate the sudden problems the referrals they made were to a facility that was out of network. If the situation was not overwhelming enough, all of this was taking place with Hurricane Harvey approaching.

This left my wife in an emotionally fragile state; overwhelmed from the diagnosis, the late transition to a new treatment team, insurance difficulties, and the impending disaster with the hurricane. This caused her to withdraw and try and handle the situation herself. With father’s having no say in medical decision making I could not intervene to try and assist her with the problems we were facing. To say we were stressed to the breaking point is not hyperbole in this situation. It would have been very easy for someone in her situation to decide to have an abortion to eliminate all the stress that was suddenly present. This is the scenario that this legislation is designed to protect babies from.

We are devoutly Catholic and would never consider abortion, and all the treating sources knew this so abortion was never mentioned to us. However, we obtained the medical records after birth and abortion was discussed in the records. That is a chilling thought – abortion was brought up in the medical records, seemingly as a matter of course, after the diagnosis of Down syndrome was diagnosed. Although we never had to face pressure from the doctors to abort, that is not always the case. Ask members of the various Down Syndrome Associations in the state and they will readily be able to provide stories of members who were pressured by their doctors to have an abortion when the diagnosis made. Some of these cases will show that it wasn’t only a single suggestion, but rather an ongoing “suggestion” to abort over the protestation of the patient.

The parents of the disabled baby already have enough stress to deal with in association with the diagnosis, especially considering the absolute dearth of legal assistance available until the baby is born. Doctors with an agenda who don’t respect the woman’s choice are not acting in the best interest of their patient. The current legislation not only protects the vulnerable babies, but it also protects emotionally fragile women from pressure by their doctor.

Complications from Routine Surgery

In case anyone questions that doctors don’t write off disabled babies to die, here’s what happened to Kenshin after birth.

He was born full term and over 3,500 grams. He needed routine surgery at one day old. In that situation a 3.00 millimeter endotracial tube is supposed to be used during surgery to provide oxygen. Inexplicably, the anesthesiologist used a 2.5 millimeter tube, which is appropriate for a 20 week preemie. Somehow he survived the procedure.

Around 7:00 P.M we get a call stating all is well. The next morning we get a call to come to the NICU since he may not survive. We rush up there and two things are clear. One, he is in dire danger. Two, he was obviously being left to die by the doctors that night.

Remember, I practice disability law and am well versed in reading medical records so know what’s right and not from looking at readings. Kenshin is cyanotic looking. The podside display showed inverted T-waves – an indication that heart muscle is dying.

I immediately start a confrontation. The response is to change the lead display. It’s important to note the original display was not lead aVR where the T-wave should be inverted. Rather than address the issue, the response was to try and hide the issue.

From a rational thought standpoint, if an individual is able to identify inverted T waves and the importance of the inversion on the spot it should be a sign they know how to read telemetry displays (which I do.) Yet, rational thinking wasn’t used. Hide the issue reasoning was used. Change the display.

I explode, and the charge nurse comes over to see what the issue is. I explained the issue and response, and identify my law practice and that I know that the treatment isn’t appropriate. The nurse tries to redirect me. I point out that she is not addressing how to remedy the crisis. She attempts to redirect again. I say that I want a copy of the medical records. She tries to redirect. I tell her that I know she’s trying to redirect the conversation and the only two issues we are going to discuss are how to remedy the crisis and when I will get the medical records.

At that point she leaves to go confer with others. She comes back and tries to redirect again. At this point I am frantic that they are simply waiting for Kenshin to die, and tell her if the next words she says are anything other than how to address the crisis or how I can get the records she’s going to find out how miserable life can be with an angry attorney going after her. Only then does she give release of information contact information.

While this is occurring, the surgeon comes down for rounds. She sees Kenshin and lights into the nurses for not notifying her of the current status. Her exact words were, “You didn’t think I needed to know about this?” The surgeon points out that he is in respiratory acidosis and asks why sodium bicarbonate has not been administered. They see that I am in listening range and move.

While they are away, a respiratory technician arrives. They increase the oscillator settings and Kenshin immediately improves. A blood draw is taken with increased settings. The medical records show that the arterial oxygen saturation improved from low 30s% to 82.5%.  Ending the crisis was simply increasing the setting on the oscillator.

At this time the neonatologist appears. He tries to calm the situation and says that Kenshin needs to be transferred to a different facility that can give a higher level of care. Mind you, this is the morning after the 7:00 called where he said all is well and we don’t need to go up there. The medical records show that the hypoxic event was ongoing when he called.

He departs, and the transport team comes in and gives the appropriate warnings, and we give written consent for transfer. The neonatalogist returns and has the gall to ask if I am upset. I confront him regarding the level of care given. He is concerned about CYA matters rather than trying to address the harm that has occurred. He tries to say care was appropriate. A group has surrounded us at this point. I tell the doctor that if he wants to go down the appropriate care route that I will enumerate the issues in front of everyone. He thinks I am bluffing so I start.

He then gets angry and launches into all the ways Kenshin could die during transport. This is already after we had been given precautions and consented to transfer. He simply was being malicious because he had been called out, appropriately, in front of the crowd. Kenshin was hypoxic for so long that ultrasound of the brain showed diffuse watershed bleed.

Some doctors are upstanding people who do what they can to protect life. Some are the ones who “cared” for Kenshin and were willing to let him die in the NICU. Disabled babies aren’t always seen as worthy of life by doctors as our experience showed.

Texas Alliance for Life’s Objection

Texas Alliance for Life is circulating opposition to the legislation. They state their opposition as:

HB 2434 Rep. Matt Schaeffer, SB 1033 Sen. Kelly Hancock

• Bans abortions on non-viable babies for discrimination reasons (sex, race, ethnicity, disability) and on babies who will die before or shortly after birth because of a “severe fetal abnormality” regardless of medical treatment. The Supreme Court does not permit states to protect non-viable babies from abortion.

The proffered reasoning is at best disingenuous, and is a misrepresentation of both the effect of the legislation and misstates the standard of review for abortion related legislation. (See https://www.texasallianceforlife.org/2019-texas-legislature/).

Whenever section is used, it refers to a specific section of the Texas Health and Safety Code.

Although their talking point linked to above doesn’t spell out the sections objected to, reading the legislation suggests it is section Section 175.052 and possibly 175.053 which read:

Sec. 170.052.  DISCRIMINATORY ABORTION. A person may not:

(1)  knowingly perform or attempt to perform on a pregnant woman an abortion based on the race, ethnicity, sex, or probability of diagnosis of or of having a disability of the woman’s preborn child; or

(2)  use force or the threat of force to intentionally injure or intimidate a person in order to coerce the performance or attempted performance of an abortion based on the race, ethnicity, sex, or probability of diagnosis of or of having a disability of the woman’s preborn child.

Sec. 170.053.  CRIMINAL PENALTY. (a) A person who violates Section 170.052 commits an offense. An offense under this subsection is a Class A misdemeanor.

The law here in Texas is very chaotic in what happens at 20 weeks.  Back before the right to life movement diverged all agreed that then House bill 2 regarding treating abortion facilities as ambulatory surgical centers was constitutional and a good piece of legislation.  (I did not agree regarding the Constitutionality.)  That piece of legislation also had a provision banning abortions after 20 weeks, section 171.044.  While the surgical center requirements and admitting privileges aspects of the law were challenged and struck down by the Supreme Court, the 20 week portion of the law was not challenged and is still in effect.

Although the three time periods is a fine point, it is an important point.  Under current law, up until viability a woman need not give a reason as to why she wants the abortion.  A simple “I don’t want the baby” suffices to allow her to have an abortion.  However, we have the 20 week law still in effect, so we have a time period where the baby is not viable, but existing, unchallenged, state law still prohibits abortion.  Viability is not a bright line time period, but the 50% chance of survival mark typically occurs during the 24th week.  This leaves a month where the baby, more likely than not, is not viable but abortion is prohibited.

Judicial Remedy Requires Restraint

The month long window is important because the remedy for unconstitutional statutory provisions is well settled law.  Justice O’Connor, no friend of abortion, wrote the opinion in Ayoette v Planned Parenthood of Northern New England, (546 US 320.)  In Ayoette the Court’s first paragraph is telling:

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.

In section III the Court states:

We turn to the question of remedy: When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force.

As she was wont to do, Justice O’Connor laid out clear guidance for future cases.  Here, she established three considerations, the third of which is:

[T]he touchstone for any decision about remedy is legislative intent, for a court cannot “use its remedial powers to circumvent the intent of the legislature.” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part); see also Dorchy v. Kansas, 264 U. S. 286, 289–290 (1924) (opinion for the Court by Brandeis, J.). After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all?

It is safe to say that even if the time period before 20 weeks is unconstitutionally restrictive the legislature would want the prohibition after 20 weeks to stand.  It’s also safe to say the legislature would want the other substantive portions of the law to stand.

Standard of Review

Before looking at the substantive sections of the law, it’s important to accurately discuss the standard of review.  Roe is case law discussing viability. Carhart and progeny is the current standard for judging abortion related legislation. The standard of review set forth in Carhart is, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

Carhart also notes what an undue buden is, “[b]efore viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.””

In order for the courts to find the legislation unconstitutional a claim has to be alleged that shows some vehicle for the unconstitutionality alleged. Since Texas Alliance for life didn’t cite any legal vehicle for unconstitutionality we must use history as a guide to try and establish what legal vehicle the legislation’s opponents will raise to argue unconstitutionality. Using the current dismemberment abortion arguments as a guide vagueness and undue burden challenges with be the vehicles raised to claim unconstitutionality.

The standard for vagueness set forth in Carhart is:

Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983) ; Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525 (1994) . The Act satisfies both requirements.

The language in the legislation could be better to address this point head on. Carhart notes, “The Court has made clear that scienter requirements alleviate vagueness concerns. Posters ‘N’ Things, supra, at 526; see also Colautti v. Franklin, 439 U. S. 379, 395 (1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea”). The amendment process should add subsection (c) to section 170.053 which reads (c) it is an affirmative defense to prosecution if the exception found in section 171.002 (b) exists. Adding the affirmative defense creates scienter requirements and “alleviate vagueness concerns.”

The other legal vehicle to obtain an unconstitutional finding is alleging undue burden. Carhart establishs that the state is able to act to regulate abortion noting, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

Just as important Carhart also notes where the limits to an undue burden allegation lie. The Court noted, “[p]hysicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.” Carhart also notes, “Considerations of marginal safety, including the of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations.”

Texas Alliance for Life’s Objection is a Heckler’s Veto

This guidance on remedy is what makes Texas Alliance for Life’s objection a heckler’s veto.  The legislation contains much more than the mere “[b]ans abortions on non-viable babies for discrimination reasons” alleged.  Even if they are correct regarding the constitutionality of the statute before 20 weeks, the legislation contains much more substantive law.  Outside of the discriminatory abortion prohibition large sections of the legislation deal with other matters.

The first area of substantive law in the legislation relates to perinatal palliative care.  The legislation states:

SUBCHAPTER X. PERINATAL PALLIATIVE CARE

Sec. 161.701.  PURPOSE OF SUBCHAPTER. The purpose of this subchapter is to ensure that:

(1)  a pregnant woman who receives a diagnosis of a life-threatening disability of the woman’s preborn child is informed of the availability of perinatal palliative care; and

(2)  a pregnant woman who chooses abortion after receiving a diagnosis of a life-threatening disability of the woman’s preborn child makes a fully informed decision.

Sec. 161.702.  DEFINITION. In this subchapter, “perinatal palliative care” means the provision of comprehensive, supportive care to reduce the suffering of a pregnant woman, her preborn child, and her family, from diagnosis of the preborn child’s life-threatening disability through the delivery and possible death of the child as a result of the life-threatening disability. The term includes medical, social, and mental health care, including counseling and health care provided by maternal-fetal medical specialists, obstetricians, neonatologists, anesthesia specialists, specialty nurses, clergy, social workers, and other individuals focused on alleviating fear and pain and ensuring the pregnant woman, her preborn child, and her family experience a supportive environment.

The legislation also imposes a twenty four hour waiting period before performing an abortion after the diagnosis of a life threatening disability.

If the pregnant woman’s preborn child has been diagnosed with a life-threatening disability, the physician who is to perform the abortion shall, at least 24 hours before the abortion or at least two hours before the abortion if the pregnant woman waives this requirement by certifying that she currently lives 100 miles or more from the nearest abortion provider that is a facility licensed under Chapter 245 or a facility that performs more than 50 abortions in any 12-month period:

(1)  orally and in person, inform the pregnant woman of the availability of perinatal palliative care, as that term is defined by Section 161.702; and

This provision relates to protecting emotionally vulnerable mothers from undue pressure by doctors.

Lastly, the second provision regarding discriminatory abortions prohibiting the

 use force or the threat of force to intentionally injure or intimidate a person in order to coerce the performance or attempted performance of an abortion based on the race, ethnicity, sex, or probability of diagnosis of or of having a disability of the woman’s preborn child.

doubtless is Constitutional.

These three aspects of the law will not come to pass if the legislation is defeated.  Under the standard for remedies set forth in Ayoette they would remain even if the prohibition on discriminatory abortion ultimately fails.

It’s not academic

In the midst of all the political maneuvering and academic analysis we need to stop and remember what we are discussing. This is Kenshin, to put a face to what the bill is trying to protect.

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