'In other words, according to the Fifth Circuit, a provider does not have to stabilize the patient if the state outlaws stabilizing the patient.' This is what Dobbs hath wrought. State governments are intent on getting women killed, and SCOTUS gave them the green light when it decided women aren't protected under the constitution. I don't know when or how this abomination ends, but until then it's going to keep getting worse.
It's hard to respect federal judges when they do this. And this is on the Dobbs Five. The majority in both cases is thanks to Trump and the Republicans. While we watch the Supreme Court go about their business in other cases, this hangs over everything. Thanks for the details.
Not directly, but there is absolutely the same sort of language in parts of the opinion. This runs parallel to it and supports it, IMO, but it can't directly be used as a springboard.
At least it doesn't make it directly worse. It's hard to tell for a layperson because the whole ruling and the fact it made it to court in the first place sounds completely insane.
All I have to hear is "Fifth Circuit" to start screaming in frustration. Between this and that absurd injunction preventing border agents from doing their job...there is no rule of law in the Fifth.
This is absolutely going in the direction of laying a legal foundation for the trend of a statutorily created "fetal personhood" paradigm. We lawyers can dance with the angels on the heads of APA (admin law) pins on the implicated issues surrounding regulatory rule-rule making process-but what we are really saying is that the mother's life doesn't matter and the fetal life "trumps" (yeah-that was intentional-no one should ever forget that is what started this shitshow) mother's right to survive. WTF are we doing here. Remember how the "Repeal the Eighth" movement in Ireland came to be: some fully grown life-in-being had to die over this type of scenario.
A pair of conjoined twins are in a serious, if improbable, car accident. Both are alive, but one is comatose and unlikely awaken, even assuming they survive the most critical period. After a period of consultation and with significant grief, the awake twin consents to be surgically separated. The state in which treatment is occurring forbids euthanasia, and the comatose twin does not have a DNR or similar document. What are the hospital's obligations under EMTALA, and how long do they take to kick in? Is the awake twin's consent *ever* sufficient, or will they be imprisoned in a hospital until their sibling starves? Begins to dehydrate? Requires intervention to breath?
Alternative scenario constructed because the Fifth Circuit is apparently incapable of reasoning about situations that involve even hypothetically viable babies.
"The New Federalism" does not work; and "Right to Life" as applied by the anti-abortion cult would be correctly stated to say "right to live" which shows their inherent lack of integrity.
How is it that they are deemed to have standing ? One approach is a US Constitutional Amendment "Life begins at birth and ends at death". But section 1 of the 14th A US Const. proscribes the States:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" the same sentence continues "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".
So everyone has come to have a rough idea of what "attorney client privilege is" so what about "doctor patient privilege" - the question as Chris has correctly stated is, to whom does the privilege apply? The correct view IMHO is that in the 1st case it applies to The Client otherwise what protection under the law have they from a crooked lawyer? viz., "The Honest Trustee" because there is a "relationship of confidence and trust" between the attorney and the client. Having it work both ways (as it's 'interpreted') annihilates the protection of the client in regards to a crooked lawyer, leaving the client with one choice, fire the attorney be abused as a pro se or go hunt down one you can 'trust'. i.e., the equities are not equal. The same ought to apply to Doctor patient - protection is accorded to The Patient. Both are "relations of confidence and trust".
But what about this relationship in regard to "fundamental rights" viz., "Life, Liberty and Property". Barron v Baltimore was a bad decision and so was The Slaughterhouse Cases. Consider
Article VI, clause 2 "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding".
So the proponents of "The New Federalism" don't believe that "The Supreme Law of the Law" governs the conduct of the States
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. 8”
Magna Carta June 15, 1215
They don't believe that Due process is the supreme law of the land nor that clients of Attorneys or Patients of doctors have any protection from the unequal relationship which is even more pronounced in regards to a woman that requires a doctor to assist her. So the anti-nationalists, anti-federalists however you wish to refer to them skirt these issues by saying that both constitutional provisions are dead letters unless Congress enforces the 14th A via sec 5 thereof - and if that's the case how are they different than Parliament?
42 USC 1983 fills what ever imagined interstice they long to manifest into existence viz.,
" the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" i.e., is the supreme law of the land - it transcends the semi-colon - in other words the privilege is a constitutionally protected right.
...by EMTALA and there shouldn’t be any conflict. The remedy for EMTALA violations entails Medicare funding. So exactly how this “conflict” would play out is very speculative.
The question isn’t what happens when there is something permitted under Texas law. The question is what happens when there is something covered under EMTALA that is *not* covered under the Texas exception. (Which I think you are reading more broadly than the Texas Supreme Court will end up reading it, in any event.)
The SCOTX says (maybe hypocritically) that it’s up to reasonable medical judgment. Also both Tx and Idaho cases seek preenforcement injunctions--by US in Idaho and against US in Tx. Quite a tangle.
There’s a larger case in Texas still pending that will determine the scope of the exception. I believe you’re referring to the ruling in the Katie Cox case, which was discussing what you’re talking about in concluding that the lower court lacked jurisdiction to issue an injunction because *it* couldn’t conclude that she qualified for an exception where the doctor had failed to do. (Even that was questionable in the court’s ruling, but it wasn’t ruling on the exception itself.)
I agree it’s highly likely, but they might, strategically, prefer to let the Texas case sit — maybe seek en banc to drag out time and keep the case alive — knowing they’re likely to win at the Ninth and let Idaho take it up to SCOTUS. It’s ultimately *not* a ruling striking down a federal law, so it’s not quite as clear cut, IMO.
I need to eat some crow. Having now actually read the relevant parts of EMTALA, it seems there’s both civil damages and injunctive relief available for violations. So we could conceivably see a Cox type case in federal court, seeking an order to provide abortion care. God bless Judge Winmill!
The “exceptions” contained in Texas (and other states) are artificial, not true exceptions. They are written in a vague and undefined way so that medical providers do not feel safe to use them. After all, the state of Texas can criminally charge providers who can be sentenced to 99 years in prison for performing an abortion. The laws are doing exactly what the Texas legislature desires- stopping women from receiving abortions- for any reason. We have seen this play out in Texas (and other states) over and over again. In the face of deteriorating health, women are being told- that as long as there is a fetal heartbeat present- they aren’t quite “sick enough” to receive an abortion. They are often sent home and told to return at some unknowable point- when their sickness has advanced. This is playing Russian roulette with women’s health and wellbeing. It’s all working just as the Texas legislature knew it would.
One would think, except that they don't permit abortions at all, as we've seen in Zurawski v Texas and the Kate Cox case. The psychotic state of Texas decides whether a doctor exercised "reasonable medical judgment" or if they performed a felony with a life sentence and civil liability attached. This is all bullshit designed to allow the state to keep legally torturing pregnant women.
'In other words, according to the Fifth Circuit, a provider does not have to stabilize the patient if the state outlaws stabilizing the patient.' This is what Dobbs hath wrought. State governments are intent on getting women killed, and SCOTUS gave them the green light when it decided women aren't protected under the constitution. I don't know when or how this abomination ends, but until then it's going to keep getting worse.
I don't think you can be half-alive or half-free so I would say no.
Thanks for making this comprehensible for people like me who are following the coverage but have no legal background.
This is ludicrous. It's the 21st fucking century and women are having to fight to get necessary medical care. We're regressing folks😕
It's hard to respect federal judges when they do this. And this is on the Dobbs Five. The majority in both cases is thanks to Trump and the Republicans. While we watch the Supreme Court go about their business in other cases, this hangs over everything. Thanks for the details.
Really appreciate the explanation to cut through the outrage headlines (or should I say better explain the outrage).
This can't be used to springboard 'fetal personhood' can it?
Not directly, but there is absolutely the same sort of language in parts of the opinion. This runs parallel to it and supports it, IMO, but it can't directly be used as a springboard.
Thank you so much <3
At least it doesn't make it directly worse. It's hard to tell for a layperson because the whole ruling and the fact it made it to court in the first place sounds completely insane.
All I have to hear is "Fifth Circuit" to start screaming in frustration. Between this and that absurd injunction preventing border agents from doing their job...there is no rule of law in the Fifth.
Ugh
This is absolutely going in the direction of laying a legal foundation for the trend of a statutorily created "fetal personhood" paradigm. We lawyers can dance with the angels on the heads of APA (admin law) pins on the implicated issues surrounding regulatory rule-rule making process-but what we are really saying is that the mother's life doesn't matter and the fetal life "trumps" (yeah-that was intentional-no one should ever forget that is what started this shitshow) mother's right to survive. WTF are we doing here. Remember how the "Repeal the Eighth" movement in Ireland came to be: some fully grown life-in-being had to die over this type of scenario.
A pair of conjoined twins are in a serious, if improbable, car accident. Both are alive, but one is comatose and unlikely awaken, even assuming they survive the most critical period. After a period of consultation and with significant grief, the awake twin consents to be surgically separated. The state in which treatment is occurring forbids euthanasia, and the comatose twin does not have a DNR or similar document. What are the hospital's obligations under EMTALA, and how long do they take to kick in? Is the awake twin's consent *ever* sufficient, or will they be imprisoned in a hospital until their sibling starves? Begins to dehydrate? Requires intervention to breath?
Alternative scenario constructed because the Fifth Circuit is apparently incapable of reasoning about situations that involve even hypothetically viable babies.
"The New Federalism" does not work; and "Right to Life" as applied by the anti-abortion cult would be correctly stated to say "right to live" which shows their inherent lack of integrity.
How is it that they are deemed to have standing ? One approach is a US Constitutional Amendment "Life begins at birth and ends at death". But section 1 of the 14th A US Const. proscribes the States:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" the same sentence continues "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".
So everyone has come to have a rough idea of what "attorney client privilege is" so what about "doctor patient privilege" - the question as Chris has correctly stated is, to whom does the privilege apply? The correct view IMHO is that in the 1st case it applies to The Client otherwise what protection under the law have they from a crooked lawyer? viz., "The Honest Trustee" because there is a "relationship of confidence and trust" between the attorney and the client. Having it work both ways (as it's 'interpreted') annihilates the protection of the client in regards to a crooked lawyer, leaving the client with one choice, fire the attorney be abused as a pro se or go hunt down one you can 'trust'. i.e., the equities are not equal. The same ought to apply to Doctor patient - protection is accorded to The Patient. Both are "relations of confidence and trust".
But what about this relationship in regard to "fundamental rights" viz., "Life, Liberty and Property". Barron v Baltimore was a bad decision and so was The Slaughterhouse Cases. Consider
Article VI, clause 2 "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding".
So the proponents of "The New Federalism" don't believe that "The Supreme Law of the Law" governs the conduct of the States
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. 8”
Magna Carta June 15, 1215
They don't believe that Due process is the supreme law of the land nor that clients of Attorneys or Patients of doctors have any protection from the unequal relationship which is even more pronounced in regards to a woman that requires a doctor to assist her. So the anti-nationalists, anti-federalists however you wish to refer to them skirt these issues by saying that both constitutional provisions are dead letters unless Congress enforces the 14th A via sec 5 thereof - and if that's the case how are they different than Parliament?
42 USC 1983 fills what ever imagined interstice they long to manifest into existence viz.,
" the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" i.e., is the supreme law of the land - it transcends the semi-colon - in other words the privilege is a constitutionally protected right.
And has to be interpreted as such
...by EMTALA and there shouldn’t be any conflict. The remedy for EMTALA violations entails Medicare funding. So exactly how this “conflict” would play out is very speculative.
The question isn’t what happens when there is something permitted under Texas law. The question is what happens when there is something covered under EMTALA that is *not* covered under the Texas exception. (Which I think you are reading more broadly than the Texas Supreme Court will end up reading it, in any event.)
The SCOTX says (maybe hypocritically) that it’s up to reasonable medical judgment. Also both Tx and Idaho cases seek preenforcement injunctions--by US in Idaho and against US in Tx. Quite a tangle.
There’s a larger case in Texas still pending that will determine the scope of the exception. I believe you’re referring to the ruling in the Katie Cox case, which was discussing what you’re talking about in concluding that the lower court lacked jurisdiction to issue an injunction because *it* couldn’t conclude that she qualified for an exception where the doctor had failed to do. (Even that was questionable in the court’s ruling, but it wasn’t ruling on the exception itself.)
I was thinking of Cox and you’re right that it’s probably a shell game by the court.
PS the injunction v US is permanent so an appeal seems inevitable.
I agree it’s highly likely, but they might, strategically, prefer to let the Texas case sit — maybe seek en banc to drag out time and keep the case alive — knowing they’re likely to win at the Ninth and let Idaho take it up to SCOTUS. It’s ultimately *not* a ruling striking down a federal law, so it’s not quite as clear cut, IMO.
I need to eat some crow. Having now actually read the relevant parts of EMTALA, it seems there’s both civil damages and injunctive relief available for violations. So we could conceivably see a Cox type case in federal court, seeking an order to provide abortion care. God bless Judge Winmill!
If Texas permits abortion in case of reasonable likelihood of fatality/serious harm to maternal health, that would seem like an emergency covered by E
The “exceptions” contained in Texas (and other states) are artificial, not true exceptions. They are written in a vague and undefined way so that medical providers do not feel safe to use them. After all, the state of Texas can criminally charge providers who can be sentenced to 99 years in prison for performing an abortion. The laws are doing exactly what the Texas legislature desires- stopping women from receiving abortions- for any reason. We have seen this play out in Texas (and other states) over and over again. In the face of deteriorating health, women are being told- that as long as there is a fetal heartbeat present- they aren’t quite “sick enough” to receive an abortion. They are often sent home and told to return at some unknowable point- when their sickness has advanced. This is playing Russian roulette with women’s health and wellbeing. It’s all working just as the Texas legislature knew it would.
One would think, except that they don't permit abortions at all, as we've seen in Zurawski v Texas and the Kate Cox case. The psychotic state of Texas decides whether a doctor exercised "reasonable medical judgment" or if they performed a felony with a life sentence and civil liability attached. This is all bullshit designed to allow the state to keep legally torturing pregnant women.
Woooow.