Update: Nicolette and Kenan arrived today.
Senate Bill 1173 “prohibits discriminatory abortions on the basis of race, ethnicity, sex, probability or confirmed diagnosis of Down Syndrome or probability or diagnosis of a disability in Texas; closes the fetal abnormality loophole for late-term abortions while maintaining an exception for medical emergencies; and requires that perinatal palliative care information be provided to a pregnant woman at the time of diagnosis of a severe fetal disability so the woman may make a fully-informed decision.” per the Author/Sponsor’s Statement of Intent.
Regular readers here know my son, Kenshin, has Down syndrome. What almost no one knows is Rochelle is presently in the hospital for preterm labor with twins, Kenan and Nicolette, and Kenan potentially has a genetic disorder. The difference in the way Kenshin and Kenan were handled shows exactly why Senate Bill 1173 is needed.
Much of the medical community is made of hard working individuals who do their best to preserve health and cure their patients. However, there is a portion of the medical community which seems to be willing to write off disabled individuals. Last legislative session I wrote about what happened to Kenshin after birth and how he almost died at one day old and appeared to simply be written off. The short version is he needed surgery at one day old, the wrong sized trach tube was used for surgery – the size appropriate for a 20 week preemie not a full term delivery – and how although his arterial blood gas was sub 40% we were called and told all was well and no need to come up to the hospital.
The callous indifference described two years ago isn’t limited to disabled babies after they are born. Kenshin’s prenatal medical records at the time repeatedly mentioned abortion. The issue wasn’t raised because the Down syndrome diagnosis wasn’t obtained until after 20 weeks, and the medical records noted that abortion was not allowed post viability. That’s a stark contrast to what happened with Kenan.
Last week we have a prenatal imaging appointment. We had been told in the past that there was going to be some issues, namely scoliosis, and advised that it was more likely that not from intrauterine remodeling. That makes sense, a small mother carrying twins can have space issues. However, last week the visit was completely different. Rather than scoliosis we are told scoliosis, misshapen head, curved long bones in the arms and legs, arm and leg growth is at the 2nd percentile. This was followed up with a declaration that it was likely a genetic disorder.
This occurred at 31 weeks 6 days. Not good news, but with one child having a genetic disorder it was simply something we accepted and carry on. However, at this very late date abortion was raised. Rather than answer the question we deflect, and ask future oriented questions. The asking future oriented questions should be a tactful way of dismissing the issue, but the issue kept coming up until we flatly say abortion is not an option.
The stress from this event caused Rochelle to have contractions the next day. We call her treating physician and are told if they do not resolve within an hour to go to the hospital. They spontaneously resolved, but when we have the next prenatal office visit we are told she is dilated to the point that we are to go straight to the hospital. That’s not the end of the story though. Stress from the sudden trip to the hospital and she starts contracting again. Once those are stopped she has become dilated to the point that it’s not safe for her to come home. This means we are stuck here for an indefinite amount of time trying to prevent premature birth.
Having to stay at the hospital means that there’s plenty of time for more ultrasounds to further evaluate Kenen’s condition. The further ultrasound gives a very unexpected answer – we’re not sure what they were seeing; this is a normal variation twin to twin. There may be an issue, but it’s not significant. Abortion was initially raised at 31 weeks 6 days and not stopped being raised until flatly rejected for what is functionally a mild condition.
Legal Theories
Of course, if a law passes and it is not upheld at the appellate and Supreme Court level then it’s of no avail. With a 6-3 Supreme Court it’s hard to try and say what will happen. Anyone who tries to tell you what will occur at the Supreme Court in relation to abortion legislation isn’t trustworthy because we are in a period of uncertainty.
n June Medical Services Chief Justice Roberts joined the four liberals and sided against Louisiana. However, he gave some interesting statements in his concurring decision. He stated, “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” He reasoned, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.” He then went into a detailed discussion as to why stare decisis is important.
This suggests that if a different legal argument were presented the door is opened for him to uphold a different legal theory as to why abortion should not be allowed. A second avenue for upholding Senate Bill 1173 is simply the numbers. The Supreme Court is now 6-3. The same coalition that upheld June Medical Services is insufficient to strike down Senate Bill 1173.
Senate Bill 1173 could be upheld, especially if it were couched as a different legal theory. No one really knows if it will be, and we really can’t know until a case makes it up to this Supreme Court, but there’s enough room for hope that passage isn’t a doomed conclusion like House Bill 2 was.
Unlike most of the right to life organizations in the state I don’t operate under the theory that Roe should be reversed. Rather, I operate we need to use Roe as a guide to achieve a different result. It is the public policy for the state of Texas that the unborn child is recognized as a distinct person from the moment of conception. The state should simply argue that Texas is empowered to declare when personhood occurs, and chooses to do so at conception. As a result the unborn baby has rights.
In Roe, the Supreme Court tracked the history of laws touching on abortion, created a right to privacy, and implemented standards on when abortion could and could not be regulated in light of the right to privacy using the history of the laws to find that it is not a long held prohibition. Texas should present a theory that many states have recognized rights for the unborn, and just as Roe dictates society has advanced to where after viability unborn children are recognized to have rights and that Roe requires that new standards be implemented to where the unborn baby’s rights be recognized. That follows the same blueprint of Roe, and is a novel legal theory to present to the Supreme Court. Senate Bill 1173 fits this legal theory because the author’s intent specifically indicates the intention is to close the late term abortion loophole.
“Rather than scoliosis we are told scoliosis, misshapen head, curved long bones in the arms and legs, arm and leg growth is at the 2nd percentile. This was followed up with a declaration that it was likely a genetic disorder.”
That’s horrible, and I’m so sorry your family has been saddled with this. I feel for you, I really do. That said, it sounds like all options for what to do when severe birth defects are present were given to you. You get to make a choice for your child, and for yourselves.
Having said that, I don’t think it’s right that that choice be denied to other parents in the future. There are religious, morality, and quality of life issues at play. That’s why, when speaking about abortion, even many anti-abortion folks make exceptions for birth defects and rape.
I hope for the very best outcome for your child and your family. Stay strong.
I fully associate myself with Bill Daniels’ comment above. I feel, however, that I must point out that your position in support of Texas declaring that an unborn child has rights is ludicrous in view of the fact that Texas is among the most cruel and unsupportive of states with regard to children AFTER they are born and to the families on whom the care for a disabled child will fall. It’s almost like Republicans are pro-forced birth but run for the hills after that. THAT’S why your position on this issue is untenable; all women realize this and I doubt that Republicans can be convinced to rationalize this deplorable philosophical conflict.
Jasmine, your comment is utterly absurd in the context of the argument presented. Texas has very favorable laws for disabled children, which is the context of the argument presented.
A disabled child’s parents can earn upto 300% of the poverty line and the disabled child is Medicaid eligible. Then a cost-benefit analysis occurs and if it is less expensive for the state to pay for the parent’s insurance for the child the state picks up the cost of the insurance.
Since a disabled child is a dependent on the parent’s policy the parent’s portion of the insurance is paid for by the state also. While it would be helpful if more funds were available for Medicaid waivers the MDCP program is finder and operates efficiently to bring the medically fragile to the front of the waiting list and the allocated funding fo MDCP recipients is substantial.
The help is there for disabled children, the argument presented. A person just has to seek out the help.
While I appreciate the insurance information you bring to the discussion it ignores all the other financial and psychological impacts that can and do impact existing families who would be denied the decision of whether to bring to term a severely disabled fetus.
The latest information I can find says that just over 50% of all families below the poverty line in Texas are headed by single women. Why do you want Texas to tell them — or any other family — that they must bear a severely disabled child or a child which will inevitably die shortly after birth? Who are you to tell these mothers that you and Texas have usurped their reproductive rights in such ghastly circumstances? Your outlook on this issue seems based on your personal circumstances and blissfully unconcerned about those families whose lives you seek to control. Stop trying to impose your reality on others; keep your decisions to yourself.
Jasmine, again you don’t address the argument presented without expanding the issue to try and make your point. Viability is a defined term in the Health and Safety Code, and is defined as:
“Viable” means the stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case, an unborn child possesses the capacity to live outside its mother’s womb after its premature birth from any cause. The term does not include a fetus whose biparietal diameter is less than 60 millimeters.
If a child will “inevitably die shortly after birth” that’s not a viable baby.
You then bring up poverty. In this expansion you raise the argument you present is not supported by your warrant. We both know that Medicaid as well as other social services are available for those truly in poverty. WIC is available until the child is 5 years old.
“Stop trying to impose your reality on others; keep your decisions to yourself.”
You seem to be describing your behavior.
Nothing in law prevents the state from charging an offender with murder if they take an action that kills a wanted unborn child. The legislation is attempting to expand the unborn child’s rights to the realm of abortion. A conflict of rights exists, the rights of the child and the rights of the mother. As a society we have advanced enough to hold that the unborn child has some rights. If Roe is good law then Roe stands for the proposition that as society’s morals advance the rights of the parties involved change.
The question of does the unborn child’s rights include not to be aborted because of the child’s race, gender, or disability status is ripe for review *based on the standard set forth in Roe.* A child shouldn’t be aborted because they’re black (or Asian, or White, or Hispanic etc.) The inherent right of the child should prevent race from being a reason to abort.
A child shouldn’t be aborted because they have a *suspected* genetic condition, such as what was suggested in our case. We aren’t even talking about an amniocentesis proven genetic condition. We’re talking about ultrasound based abnormalities that are suspicious for a condition in the third trimester. It’s time to ask whether the evolving law standard set forth in Roe protects the children post viability outside the scope of a medical emergency.
No one can know how this issue will resolve. However, it’s not unreasonable to think that society has evolved to a point where Roe’s standard dictates that the entire situation be reviewed to see the status of the child’s rights in light of the changed legal and moral standards in society, just as Roe dictates.