The case of Kate Cox, the 31-year-old mother of two in Texas who sued to end a nonviable pregnancy heaped with health risks to herself, has attracted nationwide horror for its sheer brutality.
Her fetus, at best, might have a brief and painful life; in the process of giving birth, Cox could be seriously sickened and left unable to have more children in the future.
Hers is not a singular tragedy, an unforeseeable aberration that left her in the cracks of a warm and generous Texas regime. The Texas abortion ban, no matter what anti-abortion activists and lawmakers say, was meant to prevent women like Cox from getting abortions as much as it was to ban young women from ending unwanted pregnancies early in the first trimester.
The abortion rights movement, with good reason, has often focused on abortion bans lacking exceptions (for pregnancies from rape or incest, or for fetal anomalies) as proof of their cruelty. But any notion that exemptions would spare the Kate Coxes of the world was always fantasy.
In the Texas ban, the combination of subjective, non-medical language — when is a condition “life threatening”? When is a bodily function “at risk” of “substantial impairment”? — and hefty penalties — including first or second degree felony charges, $100,000 fines for each violation and loss of medical license — guarantees that health care providers will read the exceptions narrowly.
And by stripping the courts of any ability to make that judgment, the state Supreme Court is pretending that providers, lacking any true agency under threat of such dire punishments, have the freedom to make the call in the often quickly shifting and uncertain terrain of emergency health care.
“The law leaves to physicians — not judges — both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient,” the court hand-waved in a Monday night ruling against Cox’s right to get an abortion in-state.
But it just as quickly invalidated that professional discretion when it flowed against the court’s ideological preference. When Cox’s doctor was brave enough to express her belief that Cox needed an abortion to avoid the serious harms covered by the ban’s exceptions — in a way that protected herself from running afoul of the law, and spoke to the unpredictable state of Cox’s health — the court simply nitpicked her opinion away.
“By requiring the doctor to exercise ‘reasonable medical judgment,’ the Legislature determined that the medical judgment involved must meet an objective standard. Dr. Karsan asserted that she has a ‘good faith belief’ that Ms. Cox meets the exception’s requirements,” the court wrote, adding: “But the statute requires that judgment be a ‘reasonable medical’ judgment, and Dr. Karsan has not asserted that her ‘good faith belief’ about Ms. Cox’s condition meets that standard.”
If the exemption for a “life-threatening physical condition” and the “risk of substantial impairment of a major bodily function” doesn’t apply to Cox — who, per her lawyers, has been in and out of four emergency rooms in the past month and may lose her ability to give birth in the future — who does it apply to? And how can anyone feel confident that a pregnant patient in even more imminent danger than Cox would get an abortion, given how justifiably skittish doctors are in the state?
Texas’ exceptions themselves are also particularly ungenerous. Other states’ bans have carveouts for at least some fetal anomalies; Texas’ does not. This is a marker of a new battleground in the anti-abortion movement’s effort to outlaw abortion completely.
Activists have increasingly focused on sowing disinformation around fetal anomaly testing, as writer Jessica Valenti has detailed in her “Abortion, Every Day” newsletter. That includes using websites and pregnancy crisis centers, masquerading as non-ideological resources, to try to convince women that no test can be conclusive, that the companies behind the tests are out only for profit and that the trauma from discovering that a pregnancy is nonviable renders women unfit to make a decision. They instead try to push pregnant people towards “perinatal hospice services,” insisting that giving birth to a dead or deformed baby is preferable to getting an abortion, no matter the health risks the former may pose to those carrying the pregnancies.
“Every child is uniquely precious and should continue to be protected in law no matter how long or short the baby’s life may be,” Texas Right To Life said in a statement responding to the Cox lawsuit. “The compassionate approach to these heartbreaking diagnoses is perinatal palliative care, which honors, rather than ends, the child’s life.”
This shifting of the Overton window is completely predictable. While the anti-abortion movement may pretend that it only seeks to rein in the callous, promiscuous women who cavalierly stroll into and out of Planned Parenthood clinics — who, by the way, deserve reproductive autonomy too — the net has always been cast much wider. In many respects, abortion care is identical to miscarriage care, and restrictions have long hurt women who very much want to give birth. Abortion has also become inextricably tangled with medical treatments as seemingly far afield as cancer care and lupus treatment.
If there is any meaningful difference between so-called “elective” and “therapeutic” abortions — one being the choice to end an unwanted pregnancy, and the other being the choice made when medical complications are involved — abortion restrictions have never actionably differentiated between them. And Texas’ ban, as Cox’s case shows, certainly doesn’t now.
“No one disputes that Ms. Cox’s pregnancy has been extremely complicated,” the Texas Supreme Court intoned. “Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”
Suffering, injury, potential lasting damage, the will of an adult to prioritize her safety over a fetus that cannot survive — these are not important considerations in the state of Texas. Cox’s doctor’s “good faith belief” that she has a life-threatening condition that “places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions” did not rate.
Cox ultimately had to flee the state to get her abortion. Under this kind of regime, in a country where many others can’t do the same, hers must be considered a lucky experience.
