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Dumbfounded?

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Today in appalling innovations in abortion law:

Utah Gov. Gary Herbert just signed a law that will require doctors to ignore best medical practice and give some women unnecessary anesthesia for abortions. This is the first time any state has tried this, even during a veritable boom of creative anti-abortion lawmaking at the state level.

The idea behind SB 234, or the Protecting Unborn Children Amendments, is to prevent a fetus from feeling pain during an abortion at 20 weeks or more. It requires a doctor performing an abortion at this stage to “administer an anesthetic or analgesic to eliminate or alleviate organic pain to the unborn child.”

The problem? Thorough reviews of medical evidence reject the idea that fetuses can actually feel pain at 20 weeks. They don’t fully develop the proper neurological structures to feel pain until later, around 29 to 30 weeks in the third trimester.

The bigger problem? There’s really no such thing as “fetal anesthesia” in standard medical practice. And the law doesn’t specify how doctors are supposed to make it happen.

“I’ve emailed the governor and asked him to tell me what to do, because I don’t know what to do,” Dr. Leah Torres, an OB-GYN and abortion provider in Utah, told Vox. “It’s like saying, ‘Take someone’s widget out using standard medical practice.’ I don’t know what that means.”

Elizabeth Nash, a policy analyst at the Guttmacher Institute, told CNN that the law could amount to a “de facto” ban on abortions at 20 weeks or later, because no doctor would give a patient anesthesia who doesn’t need it.

And banning abortion after 20 weeks is exactly what Utah lawmakers were trying to do in the first place, the Salt Lake Tribune reports. The bill’s sponsor, Republican Sen. Curt Bramble, initially proposed a total ban on abortion after 20 weeks but changed it after he was told the ban would be unconstitutional.

The headline for the story suggests Utah doctors are “dumbfounded” by the new law. Perhaps they are, but if they’ve been paying attention they shouldn’t be. What’s going on here should be fairly obvious, especially in light of Donald Trump’s gaffe (and uncharacteristically speedy and thorough walkback). They understand it’d be a political disaster for them if they tried to use the criminal justice system to punish women who seek abortions, but that doesn’t mean they have to give up on punishment altogether. Punishment comes in many forms. The story here isn’t “Utah Republicans have false beliefs which lead to bad, unnecessary law,” it’s one, or both, of the following: “Utah Republicans looking for backdoor ways to enact unconstitutional abortion bans”/”Utah Republicans use doctors as a tool to administer an extra-judicial punishment.”

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  • CP

    I swear to God, the movement conservative understanding of science reminds me of the reports you hear out of these African nations where a disproportionate share of the population still believes you can cure AIDS by having sex with a virgin.

    • D.N. Nation

      Recall that a bunch of AM radio/cable news wingnut shouting heads revealed during the fight over contraception that they actually didn’t understand how it worked at all. Cartman-voiced crybaby Mark Levin squealed that women had to take a brand new pill every time they made the sexytime.

      In a sane society, these poo-flinging weirdos would be shamed into learning a thing, but alas.

  • Ken

    Possibly a doctor can be found to create a test case: Administer a sugar pill fetal aesthetic orally just before the procedure. When challenged, say that you are unaware of any alternative but would be happy to use one, if someone can point to an FDA-approved procedure with published double-blind studies showing better results. You know, science-based medicine.

    • notahack

      I do wish. Doctors are pretty (small c)-conservative folk though. Risking one’s medical license is a big deal.

    • alex284

      yeah, if i had more faith in the legal system in utah, I would think that aspirin could be used as a fetal anesthetic because how is the state going to prove that it’s not when fetal anesthetic doesn’t exist and fetuses can’t feel pain? But the doctor would probably get locked away anyway.

  • calling all toasters

    Filing this under “irritable mental gestures which seek to resemble ideas,” case #38,127,053.

  • davidjoseph1

    The brief describing this law’s failure to surmount even a rational basis test writes itself.

    (Is there a legitimate government interest in moderating ‘human fetal pain’? Is there a legitimate government interest in mandating medical procedures be performed on people in certain legally defined situations, in the teeth of contrary medical knowledge?)

    • notahack

      “Is there a legitimate government interest in moderating ‘human fetal pain’?”

      Why wouldn’t there be?

      The fact that this law does, uh, absolutely nothing to advance that interest besides make it more likely that the woman dies on the table for wanting an abortion is definitely a bug and not a feature. Yep. That’s what we are going with.

      • “Is there a legitimate government interest in moderating ‘human fetal pain’?”

        Why wouldn’t there be?

        Uh…the non-existence of the purported phenomenon allegedly being moderated?

        One might equally well say that there is a legitimate government interest in ensuring the well-being of unicorns employed in interstate commerce, or in ensuring that generally accepted accounting procedures are maintained by those who count angels on pinheads.

        • BigHank53

          “Iffen it weren’t real, why’d we go and write a law about it and everything?”

          also see: reefer madness, subliminal lyrics in rock music, satanic ritual abuse, communist infiltration of Hollywood, sterilization of imbeciles, and witchcraft

        • liberalrob

          The harsh conditions suffered by our nation’s draft unicorns has gone completely unreported in the media, as have the pinhead sweatshops on Guam where legions of tiny angels are forced to crank out pinheads 24 hours a day. This shocking, outrageous state of affairs can only be due to the corporate takeover of media and regulatory capture of government oversight.

          • Origami Isopod

            where legions of tiny angels are forced to crank out pinheads 24 hours a day.

            So that’s where Trump voters come from.

  • Murc

    The story here isn’t “Utah Republicans have false beliefs which lead to bad, unnecessary law,” it’s one, or both, of the following: “Utah Republicans looking for backdoor ways to enact unconstitutional abortion bans”/”Utah Republicans use doctors as a tool to administer an extra-judicial punishment.”

    It can be all three. A lot of people think doctors are basically wizards.

    Interestingly, this view can often be found in people who also think doctors are not-to-be-trusted incompetents engaged in a widespread conspiracy against the public health.

    • djw

      The first account may be in some cases strictly speaking true, but I stand by “it’s not the story”. Insofar as the legislators are actually getting high on their own supply here, it’s a classic agnotology, and to understand why agnotology holds here, we must consult the second and third explanations.

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  • howard

    i understand that it’s possible to make a medical practice illegal (hence, anti-abortion politics), but is it possible legally to order a doctor to do something medically inappropriate?

    if the utah legislature wanted to pass a law that said doctors must feed a cold and starve a fever, would they be obliged to listen?

    as it happens, my mother’s (late) sister’s (late) husband’s (late) brother was convicted of providing abortions in 1968 (and apparently, i learned when hunting around for a link, was considered by the aclu for an action intended to go to the supreme court prior to roe v. wade). it is beyond comprehension to me that we are returning to those days.

    • Murc

      but is it possible legally to order a doctor to do something medically inappropriate?

      Yes. Absolutely. Many states already have laws compelling doctors to lie to patients.

      The constitutionality of those laws is questionable, but so far none have been struck down, to my knowledge.

    • D. C. Sessions

      i understand that it’s possible to make a medical practice illegal (hence, anti-abortion politics), but is it possible legally to order a doctor to do something medically inappropriate?

      Lying to the patient as ordered by the Legislature has survived Constitutional scrutiny, so I guess it’s possible.

      • los

        weren’t conservatives recently feigning concern that over-regulated businesses would flee to freer states?

  • King Goat

    This kind of thing is so obviously pretextual that it’s painful to see the courts dance around that out of a sense of assuming legislatures are acting honestly. This really came through at the recent SCOTUS oral arguments about Texas’ law.

  • D. C. Sessions

    I think that finally Utah (which is a major center for woo) may have found a legitimate use for “alternative medicine.” I suspect that ginger tea will do everything that the law requires with a minimum of risk to the patient.

  • I heard that they’re pushing to bring back bloodletting next.

    • so-in-so

      Trepanning. I suspect the legislature has been undergoing the practice.

  • Peterr

    Can you say “Practicing medicine without a license”? Sure you can.

  • Denverite

    Hey, I worked with Elizabeth Nash on something way back when! She was a huge help. Very smart and very nice. Good to see she’s still with Guttmacher. They do great work.

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  • KadeKo
  • efgoldman

    Has the lawsuit in federal court been filed yet?

  • gratuitous

    Very odd. Republican legislators decline to do anything to ameliorate global climate change because none of them are climate scientists, and their ears can’t hear, their eyes can’t read the findings of climate scientists. So nothing gets done.

    But boy oh boy, are they all medical wizards when it comes to making laws governing not only what women should do with their own bodies, but how ob/gyns should practice medicine.

    Some might see a contradiction here. But that just means you can’t be paid millions of dollars to opine publicly on the broadcast and cable channels.

  • Hogan

    In other Utah news:

    Appearing at a rally over the weekend for Sen. Mike Lee’s (R-UT) bid for re-election, Cruz commented that Lee “would look good” on the Supreme Court. Cruz compared Lee to Gollum, a character from Lord of the Rings, claiming that “For Mike, the Constitution is ‘my precious,’” according to the Salt Lake Tribune.

    Ted Cruz: comparing people he likes to insane twisted homunculi. As an ex’s stepmother once said of her (the ex’s) father, “This is why he has no friends.”

    • efgoldman

      “This is why he has no friends.”

      All available reporting suggests that Wacko Lee is Tailgunner Teddy’s only friend in the Senate, for some value of “friend.” That’s as good a reason for promising a non-existent SCOTUS appointment as any.

  • liberalrob

    Dumbfounded

    “Stupefied” would work too. Stupefied by the stupidity of the stupid.

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