Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Abortion politics has been fought in the US Supreme Court since 1973 with Roe versus Wade. Roe codified a woman’s right to an abortion with limitations. 

Roe established a ”right to privacy” that protects a pregnant woman’s right to choose whether or not to have an abortion. But it also ruled that this right is not absolute, and must be balanced against the government’s interests in protecting women’s health and protecting prenatal life. 

Roe’s progeny, Planned Parenthood versus Casey, established that state laws cannot create an “undue burden” on a woman’s access to obtain an abortion.  

Select state legislatures have chipped away at the contours of what “undue burden” actually means. They pass laws. The courts intervene to get an interpretation of the law before the law goes into effect. The defendant in such cases is typically a state official charged with enforcement – such as the Attorney General. If the courts conclude the law posed an undue burden, the law does not take effect. Lather, rinse, repeat. 

The only judicial body entitled to overrule Roe and Casey is the Supreme Court (SCOTUS). SCOTUS can ignore prior precedents. For example, Plessy versus Ferguson (1896) codified the constitutionality of racial segregation under the “separate but equal” doctrine. Brown versus Board of Education decades later (1954) concluded that racial segregation in public schools violated the 14th Amendment. SCOTUS can always change its mind.  

The other way to retire Roe and Casey is with a Constitutional Amendment.  

That’s been the conventional thinking since the 70s.  

Until the Texas Heartbeat Act.  

The Texas Heartbeat Act creates a private cause of action if a patient obtains an abortion in Texas after six weeks – when a fetal heartbeat can be identified. The private cause of action accrues to any citizen. Importantly, there is no public official in the loop. There is no enforcement arm who can serve as a defendant in an injunction pre-empting the law taking effect.  

SCOTUS took a pass on preventing the Texas law from being birthed.   

The law took effect. 

Those in favor of restricting abortions applauded this new chapter. 

Those opposed gasped in horror.  

The law is clever on its face. Legal pundits are scratching their heads, wondering how the status quo can be restored. It is the legal equivalent of an M.C. Escher drawing – a hand drawing a hand drawing a hand.  

I’m going to take a crack at the gaping loopholes in the law. Please note, I’m only addressing the mechanics of the law and not taking a position on the pro-life versus pro-choice debate. If you want to debate the politics of pro-life versus pro-choice, please do it elsewhere.  

The basics. 

If a woman has an abortion in Texas after the fetus’ heartbeat can be detected, Joe Citizen can sue select people for $10k plus legal expenses. Who can Joe sue? Well, the doctor, the clinic, its staff. As the debate goes, Joe Citizen can sue ANYONE who aided and abetted this act. Even the Uber and Lyft driver who knowingly drove the woman to the clinic.  

Note, importantly, Joe Citizen cannot sue the woman who obtains the abortion. 

Yes, there is an exception to collecting the bounty – and it’s not trivial.  

Sec.171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a)Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter. 

Is “Medical Emergency” defined in the statute? 

Nope.  

It comes down to the physician’s reasonable belief.  

Could a physician determine that the mere condition of pregnancy constitutes a “medical emergency?” 

Maybe. 

The risk of death associated with childbirth is approximately 14 times higher than that with abortion. Similarly, the overall morbidity associated with childbirth exceeds that with abortion. 

Raymond E., Grimes, D. The comparative safety of legal induced abortion and childbirth in the United States. Obstet Gynecol 2012 Feb; 119: 215-9. 

Further, under state by state ranking, the maternal mortality rate in Texas is worse than the national average.  

Here are the 10 states with the highest maternal mortality:  

Louisiana (58.1 per 100k) 

Georgia (48.4 per 100k) 

Indiana (43.6 per 100k) 

New Jersey (38.1 per 100k) 

Arkansas (37.5 per 100k) 

Alabama (36.4 per 100k) 

Missouri (34.6 per 100k) 

Texas (34.5 per 100k) 

South Carolina (27.9 per 100k) 

Arizona (27.3 per 100k) 

Alternatively, the patient can just lie about (or embellish) their past medical history. Do patients ever lie about or embellish their medical history? Uh-huh. 

“Doc, my last pregnancy, I had a deep venous thrombosis. Almost died.” 

“Doc, my last pregnancy, I developed near-fatal eclampsia.” 

“Doc, yesterday I experienced giant clots. I’m worried I’ll bleed to death.” 

A patient is under no obligation to obtain prior records for her current physician. And generally, a patient needs to give signed authorization to access past records. There are exceptions under HIPAA to getting records without the patient’s authorization if needed for “treatment.” But if the patient explicitly tells the prior physician not to share records, their hands are tied.   

Remember, Joe Citizen cannot sue the woman who obtains the abortion.  

How is any of this relevant? 

In a civil case, the burden of proof is on the plaintiff. Here, Joe Citizen must prove that the patient obtained an abortion after a heartbeat was detectable and there was no medical emergency. How is Joe Citizen going to do that without the medical record? And even if he gets the medical record, how will he be able to determine whether a genuine medical emergency existed?

I do not believe Joe Citizen can successfully access the record by subpoena. He’ll try. I think he’ll fail. The subpoena will be quashed. HIPAA, a federal law, will probably keep the plaintiff from accessing the record. If there’s no record to support a case, the case will probably be dismissed. 

Are there exceptions to HIPAA? 

Yep.  

The State Medical Board does not need a patient’s signed authorization to access records. They can subpoena records to determine compliance with existing state laws. Remember how clever the law was in keeping the state out of any enforcement mechanism. The State Medical Board is an arm of the state. If State Medical Board subpoenas the records, it can be a defendant in a requested injunction to reverse the law until it can be adjudicated on its merits by SCOTUS.  

Very few legal theories are bulletproof at inception. That’s why a standard contract to buy a house is often longer than the Bible. That’s why the standard terms of use for licenses to use Apple or Microsoft services are longer than War and Peace. At one time, such legal documents were shorter. But clever lawyers found a way to get around the pesky restrictions. 

Time will tell whether clever lawyering will be trumped by more clever lawyering. 

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.