There is probably little reason to engage with a writer who dismisses Princeton professor Robert P. George as an “amicus brief spider monkey.” (I have no idea what that might mean; it appears to be very vile slang, but perhaps I’m missing a more innocent alternative.) In any event, Dahlia Lithwick’s screed on the Kate Cox abortion controversy illustrates yet again that reading Lithwick will only make the ill-informed reader even dumber.
Just a few observations:
1. Lithwick complains that “not-medically-trained people … made the medical determination that terminating Kate Cox’s 20-plus-week-old pregnancy would not fall under an approved exception” to Texas’s ban on abortion. But what she calls a “medical determination” instead obviously involves both a legal and a medical determination. Doctors make the medical determination. Within very broad bounds, those applying the law will defer to that medical determination.
As the Texas supreme court made clear in its ruling, it’s up to a woman’s doctor to exercise “reasonable medical judgment” to decide whether the medical-necessity exception applies. But Cox’s doctor, the court explained, did not in fact determine that the exception did apply. So the trial court had no basis to make the legal determination that the exception had been satisfied. As NR’s house editorial explains, the court “is obviously correct in its reading of Texas law.”
2. Lithwick’s confusion between the legal and the medical pervades her screed. She slams Justice Alito’s opinion in Dobbs for “arrogat[ing] vast sums of medical authority to himself, his colleagues, eminent historical medical experts such as Sir Matthew Hale(M.D. ostensibly received from Witch Burner College sometime in the 17thcentury), and amicus brief spider monkey Robert George.” But Alito was describing the historical legal treatment of abortion, and he cited Hale as an expert on the common law.
As I’ve pointed out, Justice Kagan and Justice Breyer also cited Hale as one of a few “eminent common-law authorities” (Kagan) and as among “four preeminent common-law jurists” (Breyer). So did Justice Blackmun in Roe v. Wade itself.
Hale’s account of the common-law treatment of abortion stands or falls independent of his own virtues or vices, and it’s a gross ad hominem to fault Alito for citing Hale.
3. Lithwick asserts:
While noting in their opinion that “a pregnant woman does not need a court order to have a life-saving abortion in Texas,” the great minds of the court determined that Ms. Cox could not receive a life-saving abortion in Texas without a court order.
There is nothing in the Texas supreme court ruling that remotely supports Lithwick’s claim that the court “determined that Ms. Cox could not receive a life-saving abortion in Texas without a court order.” The court held only that she was not entitled to the order that she received from the trial court that would bar the state from enforcing its abortion law against her. It did not in any way indicate that she needed a court order before she could obtain a “life-saving abortion.”
4. Having wrongly faulted “not-medically-trained people” for making a medical determination they did not make, Lithwick leaps to play doctor herself. She claims that Cox’s baby received “a diagnosis incompatible with life.” She later states, somewhat less inaccurately, that trisomy 18 “virtually always results in miscarriage, stillbirth, or infant death.”
Let’s move past the fact that a baby’s life expectancy does not factor into the medical-necessity exception. There is no doubt that trisomy 18 is a devastating diagnosis. But as John McCormack reports (in an excellent piece on the same matter that is very much worth reading), the prospects aren’t quite as dire as Lithwick claims:
[Trisomy 18] usually results in the death of the child during pregnancy or within the first year of birth.
“Of those pregnancies surviving into the third trimester, nearly 40% of babies diagnosed with Edwards syndrome (trisomy 18) don’t survive during labor,” according to the Cleveland Clinic. Among those who are born alive, “no more than 10% survive past their first year.”
It’s a tragic, but not always fatal, diagnosis: Bella Santorum, the daughter of the former U.S. senator and presidential candidate Rick Santorum, was born with trisomy 18 and is now 15 years old. “Not only do some of these children survive, they survive with a pretty good quality of life,” Dr. Robert Marion, director of the Center for Congenital Disorders at the Children’s Hospital at Montefiore Medical Center, told ABC News in a 2012. “In children who are doing reasonably well, we will perform surgical procedures or provide more aggressive feeding therapy in order to give the kids a chance to make it.”
Here is a photo of beautiful Bella Santorum on her 13th birthday:
There’s also some evidence that current U.S. medical practices for treating infants with trisomy 18 could be much improved. According to a recent article (Colleen Malloy, Monique Chireau Wubbenhorst & Tara Sander Lee, The Perinatal Revolution, 34 Issues in Law and Medicine 15 (2019)), “in Japan, where intensive intervention is often provided for infants with Trisomy 13 and Trisomy 18, one-year survival rates approach 56% in some centers.”