By Kathleen Brown
How do you spell hypocrisy? R-E-P-U-B-L-I-C-A-N
Thursday, Aug. 25, 2022, all those who could become pregnant in Texas had not only their reproductive rights stripped away, but their privacy rights and the ability to access competent obstetrics care jeopardized.
Nineteen years ago, a Republican controlled Texas legislature took away mothers’ rights to sue doctors whose negligence caused a miscarriage. In justifying this action, Republicans “claimed” such violation of the Open Courts Doctrine of the Texas Constitution was necessary to assure women had access to obstetrics care. The legislature decried a “medical malpractice crisis,” warning that the high cost of liability insurance was driving high risk practices such as obstetrics and gynecology out of Texas.
Fast forward to 2022, now Texas Republican politicians have completely abandoned all reason, compassion, and common sense when enacting the “triggering law” of HB 1280 and “heartbeat bill.” (SB 8).
HB 1280 and SB8, together with the 1925 abortion ban, work together to criminally punish any person who assists a woman in obtaining an abortion.
What makes these 3 abortion laws so dangerous is how they incentivize literally any person to file a suit against a doctor, nurse, pharmacist, pharmacy, or hospital that treats pregnant women, and how 2 of these laws severely punish health care providers who provide needed medical care to pregnant women.
Texas anti-abortion laws will have a chilling effect on proper prenatal, perinatal, and postnatal care. Specifically, health care providers will decline high risk pregnancy patients, or practice medicine defensively, often to the patient’s detriment.
For example, just one of the many complications of pregnancy is placenta abruption. On average, 1 in 100 pregnancies are complicated by placenta abruption. If severe, the mother must be treated urgently by delivery. If the fetus is not viable, the fetus will die. However, this complication arises after 20 weeks, when most women are noticeably pregnant.
So, how do these 3 bills work together to guarantee an exodus of Texas obstetrics?
STEP 1: SB8
Random Stranger notices that a woman was pregnant one day and not the next. So, Random Stranger hires an attorney, or figures out how to file himself, a Rule 202 petition. (Texas Rules of Civil Procedure Rule 202). After all, there is a $10,000 pay off if he is successful in prosecuting a claim under SB8.
What is a Rule 202 petition you ask? Well, it’s a procedure that allows Random Stranger to demand a woman’s medical records and subject her to hours of invasive questioning to find out why she is no longer pregnant. Once Random Stranger gets the name of the physician who ended the pregnancy, Random Stranger then seeks another 202 petition to depose the doctor.
STEP 2: HR1280
HR 1280 makes it a first-degree felony to perform an abortion. Random Stranger in his zeal to control women, reports the terminated pregnancy to the district attorney. The District Attorney up for re-election in a 90% republican district, wants to make a name for himself. What better way to get re-elected than to make a spectacle out of these new Texas anti-abortion laws?
STEP 3: Harass Physicians
OB-GYNs now must respond repeatedly to requests for medical records from people who are not the patient, cooperate in criminal investigations against them, and have to report all of these occurrences to their insurance carrier, the licensing board, their employer, and the hospitals and clinics where they have medical privileges.
STEP 4: Mass Exodus
Even if the doctor ultimately isn’t sued, she knows that she is likely going to have to hire an attorney, or a whole slew of them, specializing in both civil and criminal cases, to defend her actions in saving her patient’s life. Her premiums skyrocket, and she finds she spends more time responding to Texas Medical Board inquiries and peer review committees than she does caring for women. Alternatively, she can move next door to New Mexico.
STEP 5: Texas Women Die
Even with protections from lawsuits obstetrics and gynecology have enjoyed in Texas over the last 19 years, Texas women still suffer the highest maternal mortality rate in the developed world, at 38.5 deaths per 100,000 births. And the mortality and morbidity rates are continually rising. Even more women will die as they find no doctor willing to treat a high-risk pregnancy, assuming there will be any doctors left in Texas who will care for pregnant woman at all.
Kathleen Brown is the Democratic nominee for U.S. House District 13.