“It Would Be A Crime To Give Her An Abortion”

New: Josseli Barnica is one of at least two pregnant Texas women who died after doctors delayed emergency care. She'd told her husband that the medical team said it couldn't act until the fetal heartbeat stopped. https://t.co/8qxo6obNP4

— ProPublica (@propublica) October 30, 2024

 To start with, this happened three years ago:

Like all states, Texas has a committee of maternal health experts who review such deaths to recommend ways to prevent them, but the committee’s reports on individual cases are not public and members said they have not finished examining cases from 2021, the year Barnica died.

What should be done differently has yet to be reported. What was done is this:

Josseli Barnica grieved the news as she lay in a Houston hospital bed on Sept. 3, 2021: The sibling she’d dreamt of giving her daughter would not survive this pregnancy.  

The fetus was on the verge of coming out, its head pressed against her dilated cervix; she was 17 weeks pregnant and a miscarriage was “in progress,” doctors noted in hospital records. At that point, they should have offered to speed up the delivery or empty her uterus to stave off a deadly infection, more than a dozen medical experts told ProPublica. 

But when Barnica’s husband rushed to her side from his job on a construction site, she relayed what she said the medical team had told her: “They had to wait until there was no heartbeat,” he told ProPublica in Spanish. “It would be a crime to give her an abortion.” 

For 40 hours, the anguished 28-year-old mother prayed for doctors to help her get home to her daughter; all the while, her uterus remained exposed to bacteria. 

Three days after she delivered, Barnica died of an infection.

"Miscarriage” is the lay term. The medical term is “spontaneous abortion.” It does not mean “a willful act of murder.” It means a premature termination of pregnancy. In this case, the willful act of murder was refusing proper medical treatment of a condition. The crime was not providing medical care.

And three years later we haven’t heard about it because the mother was not a blonde, white woman whose husband was a white, English speaking professional.  She was, in fact, from Honduras. This wasn’t a fetus discarded by an uncaring abortionist. This is a family discarded by an uncaring system. It’s only surprising that they aren’t still invisible, and unheard.

After reviewing the four-page summary, which included the timeline of care noted in hospital records, all agreed that requiring Barnica to wait to deliver until after there was no detectable fetal heartbeat violated professional medical standards because it could allow time for an aggressive infection to take hold. They said there was a good chance she would have survived if she was offered an intervention earlier.

But:

Though proponents insist that the laws protect both the life of the fetus and the person carrying it, in practice, doctors have hesitated to provide care under threat of prosecution, prison time and professional ruin.

Feature, not bug. This is the outcome the Texas Legislature wanted. Because they got it; and they aren’t trying to change it. 

Many noted a striking similarity to the case of Savita Halappavanar, a 31-year-old woman who died of septic shock in 2012 after providers in Ireland refused to empty her uterus while she was miscarrying at 17 weeks. When she begged for care, a midwife told her, “This is a Catholic country.” The resulting investigation and public outcry galvanized the country to change its strict ban on abortion. 

But in the wake of deaths related to abortion access in the United States, leaders who support restricting the right have not called for any reforms.

Of course, until today, who had heard of Josseli Barnica?

Feature, not bug.

Last month, ProPublica told the stories of two Georgia women, Amber Thurman and Candi Miller, whose deaths were deemed “preventable” by the state’s maternal mortality review committee after they were unable to access legal abortions and timely medical care amid an abortion ban. 

Georgia Gov. Brian Kemp called the reporting “fear mongering.” Former President Donald Trump has not weighed in — except to joke that his Fox News town hall on women’s issues would get “better ratings” than a press call where Thurman’s family spoke about their pain.

Colin Allred is campaigning against Texas’ draconian (i.e., devilish) abortion laws. Gov Abbott’s only comment on the situation has been to accuse Allred of trying to turn Texas into California.

Feature, not bug.

And this is America. It’s money that matters. Ms. Barnica was a patient in an HCA hospital:

Some HCA shareholders have asked the company to prepare a report on the risks to the company related to the bans in states that restrict abortion, so patients would understand what services they could expect and doctors would know under what circumstances they would be protected. But the board of directors opposed the proposal, partly because it would create an “unnecessary expense and burdens with limited benefits to our stockholders.” The proposal was supported by 8% of shareholders who voted. 

The company’s decision to abstain has repercussions far beyond Texas; the nation’s largest for-profit hospital chain has said it delivers more babies than any other health care provider in America, and 70% of its hospitals are in states where abortion is restricted.

HCA  will not offer any help to doctors accused of the crime of abortion.  And medical malpractice insurance doesn’t cover criminal charges. A “jury of your peers” is not guaranteed to understand what the term “abortion” means to a doctor. And when the choice is between your liberty, and a Medical Board which is not going to suspend your license, the duty to your patient takes a back seat.

Which is how the state wants it.

In 2023, Texas lawmakers made a small concession to the outcry over the uncertainty the ban was creating in hospitals. They created a new exception for ectopic pregnancies, a potentially fatal condition where the embryo attaches outside the uterine cavity, and for cases where a patient’s membranes rupture prematurely before viability, which introduces a high risk of infection. Doctors can still face prosecution, but are allowed to make the case to a judge or jury that their actions were protected, not unlike self-defense arguments after homicides. Barnica’s condition would not have clearly fit this exception.

An affirmative defense is not exactly a “Get Out Of Jail Free” card. And patients? Fuck you, you're on your own.

This year, after being directed to do so by the state Supreme Court, the Texas Medical Board released new guidance telling doctors that an emergency didn’t need to be “imminent” in order to intervene and advising them to provide extra documentation regarding risks. But in a recent interview, the board’s president, Dr. Sherif Zaafran, acknowledged that these efforts only go so far and the group has no power over criminal law: “There’s nothing we can do to stop a prosecutor from filing charges against the physicians.” Asked what he would tell Texas patients who are miscarrying and unable to get treatment, he said they should get a second opinion: “They should vote with their feet and go and seek guidance from somebody else.”

So the next time you’re in the middle of a spontaneous abortion and the baby is crowning and the doctors are waiting for the baby to die, get up, get dressed, and try to find another hospital. But don’t try to leave the state; Ken Paxton wouldn’t like that. And if you die in the effort, well….

At least the Great State of Texas didn’t allow you to have an abortion.