The ruling sought to clarify the medical exceptions in the state’s bans, and was in a response to a lawsuit from women who were denied abortions despite medical emergencies.
Who holds the burden of proof, though? Will the doctor have to prove that his choice was done in good faith to claim that his procedure was lawful, or will a prosecution have to prove bad fath? It might seem like semantics, but I bet a lot of doctors will be risk averse if they hold the burden of proof.
Regardless this seems like it will just be used by the state/wealthy organizations to drag doctors through court until they’re out of money. If I were a doctor in Texas I still wouldn’t even consider an abortion for fear of losing everything.
And it’s not just the doctors. Hospitals are businesses that are not interested in taking on financial and legal risk. Even if a doctor is willing, they won’t be able to, if they don’t have a hospital facility that will allow it
There would be the need to set up liability insurance and the procedures and premiums would just be too expensive compared to other states that won’t have those issues or hindrances.
It would be like telling you had to spend $300 on a fast food burger, when the other states only charge $10 - $15.
The current Texas law puts the burden on doctors; they have to PROVE that an abortion to save life of the mother was the ONLY option. Doctors do not want to risk jail time and a trial over this, so many necessary abortions were held back, endangering the mother. The court notes this which is why the ruling was issued. Texas AG is denying this reality and claiming the women are being hysterical.
Does the prosecution hold the burden of proof? Yes
Can a defense attorney technically sit there and say nothing during the entire trial? Well technically yes. Because the burden of proof is on the prosecution.
But the reality is the prosecution can make their evidence state anything they want. That exact quote comes from an attorney that I know personally. Evidence can always be made to say whatever you want in a court case.
So the reality is prosecution they lay out their burden of proof or their quote unquote evidence, another defense have to be able to prove that the prosecution is wrong. OK technically they don’t prove anything they just have to put calls in the other side story. But I say tomato tomatoe. At the end of the day it’s basically the same thing. The doctor is basically going to have to demonstrate why they did what they did. And because there are not clear set rules and clear set guidelines, the end result is a lot of doctors won’t do it.
There is a such a thing as an affirmative defense, though. An affirmative defense allows a person to commit an act that would otherwise be illegal under certain circumstances. However, as the name implies, an affirmative defense has to be argued by the defense. The burden is on the defense to prove that they acted under the circumstances permitted.
Consider murder, for instance. Self-defense is usually an affirmative defense. The prosecutor’s only burden is to prove that you killed someone. You have to demonstrate that you were acting in self defense in order to avoid the guilty verdict for murder.
So @vettnerk is asking a good question: will it be assumed that the doctor acted in good faith, or bad faith? Does the defense have to justify the abortion, or does the prosecutor have to demonstrate that it wasn’t necessary?
