When the Supreme Court overturned Roe v. Wade, it claimed to be removing the judiciary from the abortion debate. In reality, it simply gave the courts a macabre new task: deciding how far states can push a patient toward death before allowing her to undergo an emergency abortion.
On Tuesday, the U.S. Court of Appeals for the 5th Circuit offered its own answer, declaring that Texas may prohibit hospitals from providing “stabilizing treatment” to pregnant patients by performing an abortion—withholding the procedure until their condition deteriorates to the point of grievous injury or near-certain death.
The ruling proves what we already know: Roe’s demise has transformed the judiciary into a kind of death panel that holds the power to elevate the potential life of a fetus over the actual life of a patient.
Who is using unlawful force against the pregnant person here?
I want to stress that my focus is on the insane consequences of this court’s ruling, and how it potentially drags the abortion issue into the realm of self defense. I am not advocating that the appropriate solution to this problem is force, let alone deadly force. This problem should be rectified by either the state or federal legislature, or the Supreme Court reversing the 5th circuit’s decision. We should not need to resort to the laws governing use of force to resolve this problem.
The only ways the law has of authorizing lethal force to be used against her are through warfare, defensive force, and the death penalty. She is not a combatant, so warfare is out. Nor has she has not been convicted of a particularly heinous crime. With the exception of the fetus, none of the other people involved are imperiled, so are not justified in using defensive force against her. The fetus is imperiled, but by its own failure to thrive, not from any act of the mother. The fetus is imperiling the life of the mother without a legal justification to do so.
The source of the criminal act against her is either the fetus trying to kill her, or the doctors refusing to treat her, or the threats of punishment against the medical personnel trying to save her.
If it is the fetus causing the threat, the doctors are free to use lethal force to stop it as soon as she reasonably believes her life is in danger, and no alternative to force exists. This is the “imminent” standard. “Imminent” does not refer to a specific period of time, but to the causal chain. Being tied to active train tracks is an imminent threat of death or grievous bodily harm, even if there won’t be a train passing by for another day. Upon finding yourself tied to the tracks, and only able to escape by using deadly force, you (and anyone acting on your behalf) are justified in using force now; you (and anyone else) are not obligated to wait until the train is in sight before acting.
In refusing to help her, the doctors and the executive agent are arguably attempting to commit a “depraved heart murder”; they are arguably engaging in “depraved indifference to human life” by observing the threat against her, being able to act, but refusing to act. Should she survive that “threat” against her life, their act of refusal still arguably constitutes “reckless endangerment”.
A person reasonably believed to be facing a credible, criminal, imminent, threat of death or grievous bodily harm justifies the use of any level of force, up to and including lethal force, they reasonably believe is necessary to stop that threat. Under self defense standards, any person would be justified in using force (or threat of force) against either the executive agent or the doctor, if they reasonably believed that use of force necessary to stop the harmful act.
Again, I am not advocating threats against the executive agent or the doctor. I am attempting to demonstrate the insanity of this ruling. As it currently stands before its inevitable appeal, this issue appears to have been thrown into the realm of defensive force.
You haven’t answered the question. Texas Law circumscribes when self defence is a justification for the use of lethal force, and the situation is laid out as above: there must be someone who is or is believed to be about to unlawfully use force against the person being protected.
The foetus is not “trying” to kill the mother, and even if it were doing so, no court or reasonable person would describe it as an “unlawful use of force.” It’s just growing, presumably in a way harmful to the mother’s life. Growing naturally is not “using force” and there’s no law against it, so even if it were it wouldn’t be unlawful.
Doctors, by declining medical care, are not using force, and unless there is a statute requiring them to provide care, also wouldn’t be doing so unlawfully. If there were such a statute, it and the abortion ban would be in conflict, which is a more realistic way the ban might be struck down in the courts.
In the case at hand the likelihood of the mother actually dying should in fact be low - not almost certain as would be required for a charge of depraved heart murder.
You are talking in general terms about self defence standards instead of the text of the law on Texas’ books.