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The sliver of good news here is that Kate Cox, the Texas woman whose abortion was denied by the state Supreme Court in a ruling Monday evening, will obtain the procedure after all — by leaving the state. Cox went to court at 20-plus weeks pregnant, after discovering that her fetus has Trisomy 18, a genetic defect that almost certainly dooms the baby, either in utero or after birth. Because Cox had two previous Caesarean sections, the prospect of a third threatens to interfere with her future fertility, and she and her husband very much want more children.
Texas has an exception in its abortion law that ought to have allowed Cox’s abortion to proceed under this tragic circumstance. It permits abortion in cases where doctors, in the exercise of their medical judgment, believe that continuing the pregnancy would threaten the woman’s life or pose “a serious risk of substantial impairment of a major bodily function.”
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Excuse me, but I’ve given birth to two children, including navigating one complicated pregnancy that required emergency surgery, and it’s hard to think of a bodily function — beyond breathing — that has been more central to my life.
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A lower court judge granted Cox’s request for an order allowing her abortion to proceed. But Texas Attorney General Ken Paxton (R) appealed that finding to the state Supreme Court. The court’s brief ruling — seven pages almost entirely devoid of legal reasoning — is a masterpiece of intellectual dishonesty masquerading as judicial deference.
“Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical — rather than the legal — profession the decision about when a woman’s medical circumstances warrant this exception,” the court stated. Significant exception. Sounds reasonable, right?
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And there’s more: “Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. 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.” Again, sounds awfully reasonable. Nice use of italics to underscore the point about deference to doctors.
But the craft of judging is about applying the law to specific facts, and here is where the Texas justices fell woefully short. The court’s opinion never explains why it is not a reasonable medical judgment that abortion is advisable in this situation, in which Cox would otherwise be forced to continue with a doomed pregnancy and incur the risk of a repeat C-section or uterine rupture from vaginal delivery. It acts as if Cox’s obstetrician hadn’t determined that an abortion would be in her best medical interest, when in fact she had found just that. It all but writes the provision about impairment of a major bodily function out of the law.
Texas doctors and health-care providers are understandably terrified of running afoul of the state’s abortion law. Thanks to S.B. 8, the vigilante law that Texas passed even before Roe v. Wade was overturned, they face massive civil liability for performing abortions that might be deemed illegal. The criminal penalty for performing an illegal abortion is, in theory, as long as 99 years.
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And the scary lesson of the Cox episode is that health-care providers perform abortions in these terrible circumstances at their peril. Antiabortion advocates have contended that the raft of strict antiabortion laws that have sprung into place in the aftermath of the Supreme Court’s ruling in Dobbs aren’t problematic and don’t threaten women’s health because they contain exceptions along the lines of the Texas law. The Cox case puts the lie to that argument.
“The lesson the public should take is that there is no such thing as an exception to an abortion ban,” Cox’s lawyer, Molly Duane, told me. “If Kate Cox doesn’t get an abortion, if this bothers you, you should be against abortion bans entirely.”
Indeed. Theoretical exceptions are cold comfort to real women in excruciating circumstances, and without hope of getting the care they desperately need.
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Women of Texas, now you know: The state’s abortion law will not protect you in the case of a medical emergency. Not only will the state’s attorney general come after you, the all-Republican, Texas Supreme Court will contort itself to find that your situation doesn’t constitute an emergency that would allow an abortion to proceed. Never mind what your doctors say — courts know best, even as they purport to be deferring to medical judgment.
The sliver of good news here is that Kate Cox, the Texas woman whose abortion was denied by the state Supreme Court in a ruling Monday evening, will obtain the procedure after all — by leaving the state. Cox went to court at 20-plus weeks pregnant, after discovering that her fetus has Trisomy 18, a genetic defect that almost certainly dooms the baby, either in utero or after birth. Because Cox had two previous Caesarean sections, the prospect of a third threatens to interfere with her future fertility, and she and her husband very much want more children.
Texas has an exception in its abortion law that ought to have allowed Cox’s abortion to proceed under this tragic circumstance. It permits abortion in cases where doctors, in the exercise of their medical judgment, believe that continuing the pregnancy would threaten the woman’s life or pose “a serious risk of substantial impairment of a major bodily function.”
Excuse me, but I’ve given birth to two children, including navigating one complicated pregnancy that required emergency surgery, and it’s hard to think of a bodily function — beyond breathing — that has been more central to my life.
A lower court judge granted Cox’s request for an order allowing her abortion to proceed. But Texas Attorney General Ken Paxton (R) appealed that finding to the state Supreme Court. The court’s brief ruling — seven pages almost entirely devoid of legal reasoning — is a masterpiece of intellectual dishonesty masquerading as judicial deference.
“Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical — rather than the legal — profession the decision about when a woman’s medical circumstances warrant this exception,” the court stated. Significant exception. Sounds reasonable, right?
And there’s more: “Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. 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.” Again, sounds awfully reasonable. Nice use of italics to underscore the point about deference to doctors.
But the craft of judging is about applying the law to specific facts, and here is where the Texas justices fell woefully short. The court’s opinion never explains why it is not a reasonable medical judgment that abortion is advisable in this situation, in which Cox would otherwise be forced to continue with a doomed pregnancy and incur the risk of a repeat C-section or uterine rupture from vaginal delivery. It acts as if Cox’s obstetrician hadn’t determined that an abortion would be in her best medical interest, when in fact she had found just that. It all but writes the provision about impairment of a major bodily function out of the law.
Texas doctors and health-care providers are understandably terrified of running afoul of the state’s abortion law. Thanks to S.B. 8, the vigilante law that Texas passed even before Roe v. Wade was overturned, they face massive civil liability for performing abortions that might be deemed illegal. The criminal penalty for performing an illegal abortion is, in theory, as long as 99 years.
And the scary lesson of the Cox episode is that health-care providers perform abortions in these terrible circumstances at their peril. Antiabortion advocates have contended that the raft of strict antiabortion laws that have sprung into place in the aftermath of the Supreme Court’s ruling in Dobbs aren’t problematic and don’t threaten women’s health because they contain exceptions along the lines of the Texas law. The Cox case puts the lie to that argument.
“The lesson the public should take is that there is no such thing as an exception to an abortion ban,” Cox’s lawyer, Molly Duane, told me. “If Kate Cox doesn’t get an abortion, if this bothers you, you should be against abortion bans entirely.”
Indeed. Theoretical exceptions are cold comfort to real women in excruciating circumstances, and without hope of getting the care they desperately need.
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