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Thinking about the risks imposed by Texas Heartbeat Law, it occurred to me that a potential plaintiff with the very highest chance of winning a case would be the mother herself if she later regrets he choice. Is that idea legally supportable?

I think that without the consent of the mother, the existing medical privacy laws (like HIPPA) might make it hard for a real third party to show that a doctor had acted in a way prohibited by the law.

It seems like the doctors could mitigate their risk by adding some wording to the surgery consent form I assume they all require. For example, if the doctors required a tick in a checkbox saying "I have blank medical condition requiring an abortion." If someone without a medical condition wants an abortion bad enough, they can lie. If the doctor thinks the lie isn't believable, he refuses to do it.

Would the doctor then have a powerful defense (at least legally) due to the medical safety exception), against both 2nd party and 3rd party seeking to enforce through a civil suit?

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There are several questions here, but to try to address them briefly:

  • SB 8 allows "any person, other than an officer or employee of a state or local governmental entity in this state" to bring a civil action against an abortion provider. It doesn't say "any person other than the patient". So presumably the patient could bring such an action. Moreover, the patient's consent is not to be considered as a defense (171.208(e)(6)).

  • In an SB 8 action, I would assume the patient's medical records could be obtained by the plaintiffs by subpoena or court order. HIPAA doesn't forbid the release of medical records in response to a subpoena, though it does require that the patient be notified and given an opportunity to contest the subpoena. https://www.hhs.gov/hipaa/for-individuals/court-orders-subpoenas/index.html

  • The medical emergency exception in SB 8 is based on the "physician's belief" that an emergency exists. It doesn't say "reasonable belief" but that might be implied. It's unclear whether a physician could legally base such a belief on the patient's statement alone, especially if that statement was inconsistent with what was found on examination. Moreover, since proper medical treatment generally requires that patients speak honestly about their symptoms to their doctors, physicians would likely have an ethical problem with a system that would encourage patients to lie.

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