The conservative movement will pay any price to extend restrictions.
Kate Cox is a mother of two young children, and in that respect, she’s like the majority of women—60 percent—who seek an abortion. She wants to have a third child, but if the state of Texas had its way, it’s possible none of her children would have a mother at all.
On Monday, Cox fled Texas to seek an abortion, after the state invoked its authority to force her to carry a nonviable pregnancy to term. Pregnant with what they’d hoped would be their third child, Cox and her husband had learned that the fetus had a fatal abnormality, Trisomy 18, ensuring that even if delivered, the child would live a short, excruciating life and die a painful death. Yet she’d been told that, under Texas law, she could not get an abortion, even though carrying the baby to term would risk not only her own health but the possibility of getting pregnant again.
“The safest option to protect Ms. Cox’s health and future fertility was to get a D&E abortion,” a legal complaint filed by the Center for Reproductive Rights, seeking a restraining order on the Texas abortion ban that would allow her to get treatment, said. “But Ms. Cox’s physicians told her that because of Texas’ abortion laws, there was likely no one in the state who could provide her the procedure.”
From the January/February 2024 issue: A plan to outlaw abortion everywhere
Texas Attorney General Ken Paxton intervened, suing to overturn a court order that would have allowed Cox to go forward, even threatening hospitals that might have treated her. Paxton argued that she had not proved that her condition was “life-threatening” as demanded by Texas’s medical exception. As NBC News notes, “Physicians who violate Texas’s abortion laws can lose their medical licenses, face up to 99 years in prison or incur fines of at least $100,000.”
Cox pleaded with the court to allow her to proceed. “I do not want to put my body through the risks of continuing this pregnancy. I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days, full of medical tubes and machinery,” Cox said in her lawsuit. “I do not want my baby to arrive in this world only to watch her suffer a heart attack or suffocation. I desperately want the chance to try for another baby and want to access the medical care now that gives me the best chance at another baby.”
The Texas Supreme Court unanimously sided with Paxton. With no doctors in Texas willing to chance prosecution, Cox was forced to leave the state to avoid risking her life and ability to have another child. Having done so, her family now faces the legal risk that someone will seek to take advantage of Texas’s bounty law, which provides a financial payday for a plaintiff who sues anyone who “aids or abets” someone getting an abortion. An additional chapter is therefore possible in this grotesque spectacle, in which the government of Texas sought to inflict needless suffering on a mother and her family in order to force her to carry a doomed pregnancy.
“The truth is that it was remarkably brave and selfless of Cox to stay as long as she did,” the feminist author Jessica Valenti writes. “She was clearly fighting the good fight in Texas so that any women who come after her might have an easier time, but there’s only so long someone can put their health at risk.” Indeed, as the legal reporter Chris Geidner notes, Paxton’s vehemence in preventing Cox from having an abortion was likely rooted in the fear that if she succeeded, other women in similar situations would be able to as well.
So this was not just about Cox. Texas’s abortion laws have exceptions for the health of the mother, but Cox’s plight has made clear that they are unenforceable, and the governments of states with strict abortion bans would rather risk destroying a family than allow a mother to end a pregnancy, including one in which the fetus cannot survive. The purpose of the exemptions is to provide political cover for abortion bans so that they seem less strict, not for women who need them to be able to use them. Had Cox stayed, she might have shared the fate of Deborah Dorbert in Florida, forced to give birth to a child who could not live and to watch them die on the same day. As in Texas, the exception in Florida existed only on paper.
Caregivers who wish to invoke the exception to provide care live in fear of prosecution, and sometimes allow women to develop life-threatening conditions, as they did in Amanda Eid’s case. Eid developed sepsis and nearly died before doctors acted, despite the fact that her fetus had a fatal abnormality. As Valenti points out, now that Eid has joined with other Texas mothers in suing the state, its lawyers are insisting that the doctors are at fault for not acting sooner, even though it is the state that puts caregivers in the position of choosing between a person’s life and their own career, freedom, and livelihood.
Complications of childbirth happen all the time. Most of them are not as heartbreaking as a fatal abnormality, but as Valenti notes, there are some 120,000 such diagnoses every year. Many pregnancies, even successful ones, have problems that can put mothers’ lives at risk. In other words, these things can happen to anyone. They could happen to you or someone you love.
Once you understand how dangerous pregnancy is, how many things can go wrong, and how hard it is for everything to go perfectly right, these incidents in which state commissars see mothers and their families as little more than props in their own ideological holy war become even more perverse. The decades-long Republican control of Texas means that politicians decide how and when women carry pregnancies to term and whether they are likely to survive the process.
Cox was able to seek refuge elsewhere. But the Republican Party and the anti-abortion movement envision a nation where there is no refuge to seek. Anti-abortion leaders attacked Cox for engaging in “eugenics” and “discrimination,” as though mothers who do not wish to risk their own lives and fertility simply do not love their children as much as the self-righteous strangers urging the state to seize control of their bodies do. Republican lawmakers like the Cancun-enjoying Senator Ted Cruz and his senior colleague John Cornyn exercised slightly more message discipline, refusing to comment on her specific case.
Mary Ziegler: Harsh anti-abortion laws are not empty threats
Their circumspection is merely strategic, however. As my colleague Elaine Godfrey writes, Republicans hope that a second Trump administration will bring a nationwide ban on abortion. Trump is directly responsible for the Supreme Court appointments that led to Roe being overturned, after all. It is natural for the anti-abortion movement to vest their hopes in him a second time, whatever deception he might employ to appear moderate on the issue.
The anti-abortion movement believes that they can persuade Trump to issue an order reviving the Comstock Act, which “could be applied to prevent the transport of all supplies related to medical and surgical abortions, making it illegal to ship necessary tools and medications to hospitals and clinics, with no exceptions for other medical uses, such as miscarriage care,” as Godfrey reports. Under such circumstances, she writes, “conditions that are easily treatable with modern medicine could, without access to these supplies, become life-threatening.”
To those who sympathize with Cox’s plight—being persecuted by state authorities for not wanting to carry a doomed pregnancy to term, in order to preserve her ability to grow her family—Texas must seem like a dystopian horror. But in the eyes of the conservative movement, it is a utopia they hope to extend to the entire country. If some families are destroyed to advance that cause, it is a price they are willing to pay.
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