Kamala Harris and ProPublica are lying to you about why Amber Nicole Thurman died.
Kamala Harris and ProPublica are lying to you about why Amber Nicole Thurman died.
I t takes a species of chutzpah rarely found outside of liberal and progressive politics to blame the harm done by your own policies on the people who oppose them. But that’s exactly what Kamala Harris and other pro-abortion politicians and journalists are doing right now with the deaths of Amber Nicole Thurman and Candi Miller. Both women died of complications after taking the abortion pill — and, worse, taking it without the medical supervision that was required by the FDA until the Obama and Biden-Harris administrations stripped away those safeguards. In Miller’s case, the pill was shipped by mail in violation of a federal statute that the Biden-Harris administration refuses to enforce.
There ought to be no question about whose hands are marked with the blood of these two women. Rather than face any introspection about the costs of their determination to promote abortion at all hazards, Harris and pro-abortion journalists instead say that deaths traceable to the abortion pill should be blamed on pro-life laws. Not only are these people inverting reality; they are flatly misrepresenting the law. This is falsehood from top to bottom.
The icing on the cake is that they are doing so based on private medical information obtained and published in violation of federal law — the same federal law that the Biden administration is using to prosecute a whistleblower in Texas who was far more protective of patient privacy. Without violations of the Health Insurance Portability and Accountability Act (HIPAA), Harris would not be telling the public about the conditions surrounding Thurman’s death. But laws are for enemies, not for friends. So Harris is leading chants of the patient’s name:
Kamala, who has never said Laken Riley's name, leads a chant of "Amber Nicole Thurman" in Georgia — in the same speech where she falsely claims that Amber died due to a pro-life law. pic.twitter.com/o3spNowPzZ
— Mary Margaret Olohan (@MaryMargOlohan) September 20, 2024
In this column, I’ll examine ProPublica journalist Kavitha Surana’s report on Thurman’s case. In a second column, I’ll look at Miller’s case and the egregious hypocrisy regarding HIPAA violations.
Changing the Subject
Before diving into the facts and the law, it’s crucial to understand Democrats’ narrative goal. They and other champions of abortion have strategically chosen, as a major theme of their attacks on Dobbs and pro-life laws, that these supposedly risk mothers’ lives by depriving them of abortions that they “need.” The Thurman and Miller cases have been publicized in ProPublica by Surana, who has made it her mission to promote the narrative that “abortion bans have made pregnancy more dangerous in America.” That strategy, like the strategy of focusing on cases of rape and incest, is a distraction: Cases in which women seek abortion because of grave health risks are (like rape and incest cases) a tiny fraction of all abortions. It’s a smoke screen designed to obscure the vast majority of cases such as Thurman’s, in which no such risks are at issue.
Moreover, this is not a situation in which exceptions make a broader point about the policy or show that its diffuse costs are not worth the heavy burden it imposes on a few. First, we should remember what these laws are about: Every abortion takes at least one human life, by definition. As with any law against homicide, there are exceptions for justifiable cases — but the cost of every exception is measured in deaths. Second, as with exceptions for rape and incest, there are ways to write abortion bans to account for such situations, and every such ban in existence in the U.S. right now has at least some such exceptions. Harris and others are not asking for exceptions to be redrawn; they are claiming that any need for any exception shows that the laws should not exist at all.
This approach is openly admitted by Michelle Goldberg in her New York Times column “It Was Only a Matter of Time Before Abortion Bans Killed Someone.” Here’s Goldberg’s description:
As in other states where women have been denied routine abortion care, Georgia’s ban includes an exception for procedures “necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function.” But as we’ve seen again and again, hospitals aren’t sure how to interpret this language, especially with the threat of prison time hanging over everyone involved. So medical staff sometimes hesitate to act until the threat to a woman’s life is undeniable, at which point it may be too late.
You would think, from reading this, that Georgia’s abortion ban represents a novel intrusion of the law into the otherwise Ayn Randian paradise of American medicine, which has heretofore been innocent of encounters with legal rules. Nothing could be farther from the truth. Georgia hospitals, like hospitals all across the country, operate in an Amazonian jungle of laws and regulations, federal and state, and comply with extensive standards of judge-made tort law. The rules of the Georgia Medical Board alone run 261 pages. Hospitals typically employ a significant number of lawyers, whether in-house legal departments or regular outside counsel, all of whom are deeply versed in the intersection of law and medicine. Does Goldberg honestly believe that words and concepts such as “medical” or “lifesaving necessity” or “physical impairment” are either novel innovations in the law or words of such ambiguity that courts and lawyers cannot practically define? Of course she doesn’t. But she expects her readers to buy it.
This is obvious bad-faith nonsense. Hospitals and doctors practice medicine every day knowing that they can be sued for medical malpractice, sanctioned by the state medical board, or denied payment by Medicare or Medicaid or private insurance if they fail to adhere to prevailing medical standards, fail to provide medically necessary care, provide medically unnecessary care, or provide substandard care. More than 10,000 medical-malpractice claims are filed in the United States every year, many of them asserting that doctors failed to do something necessary to save a life. Medical-malpractice law can be traced as far back as the Code of Hammurabi; common-law courts have decided such cases for centuries, and such lawsuits have been commonplace since the 1960s.
Even a brief perusal of Georgia statutes and Georgia case law shows courts’ ruling on these issues and on analogous ones, such as instances when parents have had to pay for the medically necessary care of their children or when sheriffs have had to provide medically necessary care to inmates. Each of these cases requires line-drawing. To pick a few examples: Georgia Code § 49-4-152.6 commands that a state agency “shall provide Medicaid coverage for any prescription drug prescribed to an adult patient and determined by a duly licensed practitioner in this state to be medically necessary for the treatment and prevention of mood disorders with psychotic symptoms,” while Georgia Code § 51-14-5 provides that the statute of limitations for an asbestos claim “shall not begin to run until the exposed person . . . obtains, or through the exercise of reasonable diligence should have obtained, prima-facie evidence of physical impairment” (emphasis added).
This is not to say that nothing can be done to make exceptions clearer and lines brighter. Some states have done better than others in drafting their laws, and some state attorneys general and state medical authorities have been more helpful than others in explaining precisely where the lines are. That’s the nature of written law, which should always aim for clarity. But if you asked people such as Surana and Goldberg which laws are clearest or what a clear law on this topic would look like, they would claim that such a thing could never be possible. Like sovereign-citizen tax protesters, they write as if the concept of law itself is an alien one. If that were the case, most of America’s many thousands of laws on thousands of topics would be too vague to enforce.
Amber Thurman’s Case
Unsurprisingly, given her open agenda, Surana bends reality to fit her narrative. She ignores the fact that nothing in Georgia’s law made pregnancy dangerous to Thurman: The story describes her as a healthy 28-year-old single mother who got pregnant with twins and sought an abortion “to preserve her newfound stability,” not for any health reason. The good outcome in this case, according to Surana, would have been the deaths of both twins. Had Thurman carried them to term and put them up for adoption, she’d almost certainly still be alive today.
What happened? She took the mifepristone-based abortion pill, which was handed to her at a clinic in North Carolina. She would not have died if she hadn’t taken it. It is worth recalling here who legalized that pill and who stripped away regulations around its use:
The original rules written when the drug was approved in late 2000, in the last months of the Clinton administration, required three visits to a doctor. In 2016, in the waning months of Barack Obama’s term, the FDA dropped the required number of visits to one and allowed a visit to any health-care provider — without even defining what sort of provider would qualify. It also stopped requiring reports of any adverse reaction from the drug short of death. In 2021, Biden’s FDA used the Covid emergency as an excuse to temporarily waive the requirement of a physical examination entirely. A few months later, it cited the absence of adverse health reports as a basis to make the Covid-emergency exception last forever, even if that resulted in more deaths and serious injuries to women from failure to detect conditions (such as an ectopic pregnancy) in which use of the drug would be dangerous.
Goldberg acknowledges, as if this is a thing of little concern, that “in about 3 percent to 5 percent of cases, women end up needing either another dose of misoprostol, one of the two drugs in the regimen, or surgery.” That means that one woman out of 20 or 25 could bleed out if she isn’t fully informed and prepared for the consequences of a drug that Goldberg describes as “safer than penicillin or Viagra,” and which other enthusiasts regularly describe as “safer than Tylenol.” Surana calls it “a rare complication,” as if it’s an exotic disease rather than the completely predictable risk of a pill. A 3 to 5 percent chance of death from sepsis, if untreated, seems like a hazard that ought to be communicated to women by a doctor with some urgency.
How rare is 3 to 5 percent? It’s much more common than the share of abortions that result from rape or incest. It’s much, much more common than the proportion of guns used in a violent crime, let alone a school shooting.
This spring, the Supreme Court turned away lawsuits by pro-life physicians who argued that the FDA’s loosening of these rules was dumping more bleeding women into their emergency rooms. The narrow grounds for the ruling was, in effect, that it was no particular harm to the doctors if the pill killed their patients. The justices may sleep well at night, knowing it’s not their job to right every wrong if there’s no proper lawsuit. The people who wrote these rules, however, will have to live with the consequences of their choices. Do they care?
Surana tells us that “a clinic employee” gave Thurman the pills, and “Thurman sat through a counseling session in which she was told how to safely take the pills and instructed to go to the emergency room if complications developed. She signed a release saying she understood. She took the first pill there and insisted on driving home before any symptoms started.” Notice that, because of the revised FDA rules, no follow-up was required, and no details are provided about whether she actually met with a doctor.
Thurman, per Surana, found that “days after she took the second pill, the pain increased and blood was soaking through more than one pad per hour,” because she “had not expelled all of the fetal tissue from her body,” and needed “a routine procedure to clear it from her uterus, called a dilation and curettage, or D&C.” Even though “it should have been clear that she was in danger” when she went to Piedmont Henry Hospital, it took “20 hours for doctors to finally operate.”
Under Georgia law, unless there’s something Surana is misreporting or leaving out of her account, this is almost certainly medical malpractice, and it would likely be treated as such by the Georgia courts. The committee reviewing her case cited Piedmont’s “lack of policies/procedures in place to evacuate uterus immediately.” Surana finds that it’s “not clear from the records available why doctors waited to provide a D&C to Thurman.”
At this point, Surana flatly misrepresents Georgia law: “Just that summer, her state had made performing the procedure a felony, with few exceptions.” “The procedure” here refers to D&C. Here’s what Surana claims to find confusing:
[Georgia law] prohibits doctors from using any instrument “with the purpose of terminating a pregnancy.” While removing fetal tissue is not terminating a pregnancy, medically speaking, the law only specifies it’s not considered an abortion to remove “a dead unborn child” that resulted from a “spontaneous abortion” defined as “naturally occurring” from a miscarriage or a stillbirth.
Of course, Surana doesn’t include the full definition of what is an abortion under the law:
“Abortion” means the act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child; provided, however, that any such act shall not be considered an abortion if the act is performed with the purpose of: (A) Removing a dead unborn child caused by spontaneous abortion [which the law defines as “the naturally occurring death of an unborn child, including a miscarriage or stillbirth”]; or (B) Removing an ectopic pregnancy.
In other words, while the law is careful to explicitly make it legal to perform a D&C following a miscarriage, or to treat an ectopic pregnancy, the definition of abortion in the first place covers only procedures to “terminate a pregnancy” knowing that the termination will “cause the death of an unborn child.” Besides, Georgia’s law only prohibits such abortions for a child with “a detectable human heartbeat.”
The law goes further. It provides an additional exception when “a physician determines, in reasonable medical judgment, that the pregnancy is medically futile,” defined as a situation in which, “in reasonable medical judgment, an unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.” By contrast, “in conducting an abortion, if the child is capable of sustained life, medical aid then available shall be rendered.” The civil-damages portion of the law provides a defense if a doctor or nurse caused “accidental or unintentional injury to or death of an unborn child.” All three provisions fortify the clear statutory definition that it is not an abortion to remove from the womb a child who is already dead.
Any lawyer who argues that the language of the Georgia heartbeat law outlaws a D&C after the child has already been aborted and is dead ought to be disbarred. It would be either a deliberate misreading of the law or imbecility of a disqualifying degree. No sane or decent lawyer would advise a client that the Georgia courts would read the law in such a way. Even Surana concedes that “no doctor has been prosecuted for violating abortion bans,” let alone for performing a D&C when the child is already dead.
So far as I can tell, neither Surana nor Goldberg is a lawyer (Harris has no such excuse). Surana asks doctors how they construe the law but never quotes any lawyers. Shockingly, Surana suggests that the hospital made no effort whatsoever to ensure that its medical staff knew what the law provided:
Piedmont did not have a policy to guide doctors on how to interpret the state abortion ban when Thurman arrived for care, according to two people with knowledge of internal conversations who were not authorized to speak publicly. In the months after she died, an internal task force of providers there created policies to educate staff on how to navigate the law, though they are not able to give legal advice, the sources said.
Surana points to the patient-education section of Piedmont’s website, which informs patients:
Dilation and curettage (D&C) is a fairly common, minor surgical procedure. D&Cs are used to remove the lining of the uterus. A D&C may be performed to obtain tissue samples to diagnose a condition, treat irregular or heavy bleeding, remove fetal and placental tissue following a miscarriage, and as an infrequently used abortion method. . . . Following a miscarriage or “missed” miscarriage, a D&C is used to remove fetal and placental tissue.
Nothing in this description would alert a patient that the hospital believes that there is any legal obstacle to performing a D&C following a miscarriage. That suggests that the hospital does not actually see any such obstacle. It is also damning evidence that Piedmont is telling the public one thing if it is then doing another when patients arrive in the emergency room.
Did Piedmont delay Thurman’s treatment because of uncertainty about Georgia law? Surana can’t say. But if it did, that would amount to medical malpractice by means of legal malpractice. Hospital administrators can’t simply refuse legal advice and leave their staff hanging about what’s legal and what’s not. That’s what the law calls “willful blindness”: shutting your eyes so you can claim ignorance. It’s no defense. This is why Florida has issued a “Notice to Providers” in the aftermath of this controversy, warning them:
Health care facilities and providers must be aware that a physician providing life-saving treatment for pregnant women does not violate Florida law and that failure to do so may constitute malpractice. Additionally, a miscarriage is not an abortion. Section 390.011(1), Florida Statutes, defines “abortion” to mean the termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus. A miscarriage does not produce a live birth. Providers are reminded that Florida requires life-saving medical care to a mother without delay when necessary, and the Agency for Health Care Administration and the Florida Department of Health will take regulatory action when a provider fails to follow this standard of care.
More states should be doing this, even though it should not even be necessary to remind doctors to do their jobs or remind hospitals to ensure that doctors know what the law requires and what it permits. According to Surana, it was only years later that the state board reviewing Thurman’s case “recommended all hospitals implement policies ‘to treat a septic abortion on an ongoing basis.’” Why hadn’t hospitals already thought to have policies about this “routine” situation?
It is hard not to see the specter of massive resistance. Brown v. Board of Education was so unpopular in some quarters that its opponents and detractors simply took every possible opportunity to read the law in bad faith and ensure that they’d have to be dragged kicking and screaming, one case at a time, to conformity. If doctors and hospitals in Georgia and other states intend to comply with the law while continuing to provide necessary medical care to patients, they would already act as if that is their intention. They’d ask a lawyer what the law means, and they’d notify their staff. They wouldn’t sit around waiting for someone to die so they’d have something to complain about while attacking a law they hadn’t bothered to read.