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.
Obviousley there’s a significant typo. The sentence regarding Justice O’Connor should read, no opponent of abortion.
That picture of Kenshin is to die for. What a cute and lovable child. Greg, you and your wife are blessed.
Happy Baby! Put a smile on my face…..
What an amazing gift God has given you in that precious child. Thank you for sharing your story.
Attorneys often make the Constitutionality question too complicated. The Constitution mentions neither abortion nor murder. Therefore, the States have all authority to punish it as they decide under the 10Th amendment
We thank Mr. Degeyter for his commitment to the pro-life issue. However, his criticism of Texas Alliance for Life’s position on HB 2434 by Rep. Matt Schaefer and SB 1033 by Sen. Kelly Hancock (banning discrimination abortions) is incorrect on three counts.
First, Mr. Degeyter misrepresents our position on HB 2434/SB 1033, claiming that we oppose it. That is not true; we do not oppose it. However, we are not recommending it to the Legislature.
On our website, https://www.texasallianceforlife.org/2019-texas-legislature/, we describe bills of interest in three categories: “Bills We Recommend to the Texas Legislature,” “Bills We Are Not Recommending,” and “Bills We Oppose.” There in a huge difference between the latter two, and inside the Capitol, legislators recognize this distinction because it is used by any number of issue groups. Furthermore, we will base our scorecard on votes on Bills We Are Recommending and Bills We Oppose, but not on Bills We Are Not Recommending.
Second, Mr. Degeyter misses the actual reason we do not support SB 2434/SB 1033. Its ban on pre-viability abortions will not survive a federal court challenge resulting in a significant setback to the pro-life movement.
Since the passage of HB 2 in 2013, Texas has banned virtually all abortions after 20 weeks (measured post fertilization) which corresponds to 22 weeks gestation measured from the first day of the mother’s last menstrual period). (Mr. Degeyter seems to confuse the two metrics.)
Viability for a healthy baby born in an excellent institution is generally recognized as beginning at 21 weeks post fertilization (23 weeks gestation). In other words, Texas has already banned all post-viability abortions, including abortions on babies with disabilities (e.g., Down syndrome, spina bifida, and cleft palate) as well as abortions for sex or race. Abortions on babies with a “several fetal abnormality,” are terminally ill and, sadly, are not viable. Supreme Court precedent prevents states from protecting them from abortion.
The real issue is whether HB 2434/SB 1033 would survive a federal court challenge as applied to abortions performed on unborn babies before 20 weeks, all of whom are pre-viable, including abortions on babies in the first trimester (before 12 weeks) and the early second trimester.
The parts of HB 2434/SB 1033 that ban abortion on babies who are not viable would not survive a federal court challenge. The result would be more bad precedent, which we do not need. It would also result in thousands or millions of dollars paid by the State of Texas to the plaintiffs for their attorneys’ fees, as required by federal law, thus strengthening the abortion industry and the organizations that represent them in court, including the ACLU and the Center for Reproductive Rights.
The net result would be a significant setback, not advancement, for the pro-life movement.
Current Supreme Court precedent, as defined in Roe v. Wade (1973) and Planned Parenthood v Casey (1992), prohibit states from banning or limiting abortion by imposing an “undue burden” on a woman seeking a pre-viability abortion. In Casey, the Court wrote, “A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Also in Casey, the Court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.”
Losing abortion cases in court weakens the pro-life cause and strengthens the abortion industry. The bad precedent of a loss is used to strike down more pro-life laws in Texas and other states. The 2016 loss in Whole Woman’s Health v. Hellerstedt in which the Supreme Court struck down safety regulations at abortion facilities has been used to strike down a number of laws in other states. Furthermore, Texas may be required to pay $4 million or more to the attorneys for the plaintiffs, including the Center for Reproductive Rights whose annual income is $1.5 million.
The State of Indiana has banned abortions for those same reasons. The federal district court struct that ban down, and the 7th Circuit Court of Appeals affirmed that decision in Planned Parenthood of Indiana and Kentucky v. Commissioner of Indiana State Department of Health (2018). The Court wrote:
“The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.”
Thus, states may not — for any reason — protect unborn babies who are not viable from abortion. While this standard is extremely unjust and inconsistent with modern science, it has required lower courts to prevent enforcement of countless pro-life laws in the 46 years since Roe.
Unfortunately, for the reasons described above, the portion of HB 2434/SB 1033 that bans discrimination abortions would not survive a federal court challenge. Mr. Degeyter’s analysis gives nothing to suggest otherwise.
Third, Mr. Degeyter unfairly claims we fail to support the parts of the bill that would survive a federal court challenge. He is correct that the certain aspects of the bill would be untouched by the federal courts, including the 24 hour waiting period (which Texas has required since 2003) and information regarding palliative care (which many hospitals already provide).
These aspects of the law could and should have been offered in the separate bill, and we would support such a bill. When we made that suggestion to Rep. Schaeffer, he rejected it. We also spoke with Sen. Hancock’s office which demonstrated no interest. Unfortunately, the deadline for introducing new bills has passed. Had Mr. Degeyter talked to us before publishing this piece, we could have explained that.
We also point out that the part of the bill that criminalizes forcing a woman to have a discrimination abortion is already law. Last session the Legislature passed HB 2552 that, among other provisions, created a third-degree felony for assaulting a pregnant woman to force her to have an abortion of any kind.
Joe Pojman, Ph.D.
Executive Director
Texas Alliance for Life
If you feel that your analysis is correct and mine is not then perhaps you are willing to have a debate on right to life issues with me where we can discuss the issues and everyone can come to their own determination?
Dr. Pojman it saddens me that you would not recognize that you made statements of law that are not accurate and require that your erroneous statements be brought to light. However, you have not corrected your misstatements and instead elected to engage in drive by argumentation.
Let’s begin with your claim regarding the third degree felony. You are referring to the assault code as set forth in Texas Penal Code 22.01. However, it’s only a third degree felony if 22.01(a)(1) applies. Bodily injury is necessary for this subsection. If there’s no injury the assault results in a class a misdemeanor. Take a common scenario. A pregnant woman’s father/mother/boyfriend takes her by the arm and forcibly brings her to a vehicle to go to Planned Parenthood (or the like) to have the abortion against her will. No injury results, so the offense is not a felony.
This isn’t a matter of nuance; it’s basic statutory interpretation. I bring this point up to show that your statements regarding law are facially untrustworthy.
Next, your statement, “The real issue is whether HB 2434/SB 1033 would survive a federal court challenge as applied to abortions performed on unborn babies before 20 weeks, all of whom are pre-viable, including abortions on babies in the first trimester (before 12 weeks) and the early second trimester[]” is a classic heckler’s veto and not the standard that will be used to judge whether the discriminatory abortion aspects of the law survive or fail.
The legislation will be resolved under the standard set forth in Ayotte. To determine the intent of the legislation the courts look at the intent of the legislators who supported the legislation. Your narrowing the issue doesn’t accurately reflect the intent of the legislation. While ideally the legislation stopping all abortion based on race or disability is the outcome that will arise from the legislation, if the end result is race and disability cannot be considered under the excessively permissive standard set forth in Doe v Bolton the legislation serves to establish an important limitation to the New York types of laws.
It’s interesting that you chose to argue Casey in support of your position that the legislation fails. Casey does note undue burden, but it also states:
No evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking… Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe’s view that a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims. Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990); cf., e. g., Riggins v. Nevada, 504 U. S. 127, 135 (1992); Washington v. Harper, 494 U. S. 210 (1990); see also, e. g., Rochin v. California, 342 U. S. 165 (1952); Jacobson v. Massachusetts, 197 U. S. 11, 24-30 (1905).
If Casey is the standard, the evolution of legal principles can erode Roe’s doctrinal footings. With the composition of the Supreme Court markedly different than last term it’s an open question as to whether the current Court will recognize that the evolution of legal principle has eroded Roe’s doctrinal footings. Carhat moved the needle in regards to government regulation versus personal autonomy and bodily integrity. The Court noted, “the Act’s prohibition only applies to the delivery of “a living fetus.” 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.” This means that the baby’s right to bodily integrity was elevated enough that it controlled over the mother’s right to have an intact D&E procedure.
We don’t know how far that change in rights extends, but it is at least an open question. When the dismemberment abortion case is finally resolved that will give a greater degree of clarity. Either the baby’s rights continue to advance, or we have our bright line. However, with the Carhart Court noting that “an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure[]” the issue is at least an open question, unlike your testimony regarding that legislation declaring the dismemberment legislation will fail judicial review.
Outside of the suspect statements of law you offered the explanation you offer on your stance regarding opposition to the legislation is to deny plain language.
SB 1033, Bans abortions before viability. Texas Alliance for Life is not supporting this bill, and we are not recommending that the Legislature pass it because it will not survive a federal court challenge.
If that’s not opposition to the bill then you are not using the plain language meaning of oppose. The dictionary defines oppose as
oppose (verb) – disapprove of and attempt to prevent, especially by argument.
The use of equivocation after the fact to cloud the issue speaks volumes.
Again, it saddens me to point these issues out. I wish you would have accepted the offer of debate to clarify the issues, or at least corrected the statements. Texas Alliance for Life holds sway at the capitol. It’s important that legislators be able to accept your statements at face value. More importantly, though, your statements have an impact on shaping the prolife debate within the right to life community. Making misleading statements of law, even innocently, and equivocal statements of intention only serves to confuse and create wedges. In the end, that will drive away public engagement as those who cannot independently break down the conflicting legal analysis and diverging opinions on whether an action is likely to promote or harm the cause choose not to act.
Here is a more complete explanation of why Texas Alliance for Life does not recommend theban on discrimination abortions.
https://www.texasallianceforlife.org/why-tal-doesnt-recommend-a-ban-on-discrimination-abortions/
Joe Pojman, Ph.D.
Executive Director
[email protected]
512.477.1244
Dr. Pojman, you are being intellectually dishonest at this point. You are opposed to the bill based on a reason different than the bill’s supporters put forth as their reasoning. That’s a hacker’s veto, and the tactic that Planned Parenthood uses.