Reginald Mathalone/NurPhoto via AP
The so-called exceptions to state abortion bans were never anything other than window dressing, attempting to trick a public that is overwhelmingly hostile to the Republican position.
One of the more gruesome legal spectacles in American history has played out over the past few weeks. Kate Cox, a pregnant Texas mother of two, learned recently that her fetus had a condition called trisomy 18, in which there is an additional copy of the 18th chromosome. Depending on how it is expressed, this causes systemic and severe birth defects that are fatal to the fetus about 95 percent of the time. For those that are born alive, only about 5 to 10 percent make it a year.
As Cox wrote in an op-ed, her doctors advised her that her fetus’s condition is incompatible with life. But she lives in Texas, where that’s not a good enough reason to be able to obtain an abortion.
Cox filed a lawsuit, attempting to get legal permission for an abortion under the exemption for people with a “life-threatening physical condition.” After all, a stillbirth—a near certainty in this case—can be very dangerous for any mother. According to the suit, she had already been to the emergency room four times, leaking what seemed to be amniotic fluid. Even if Cox made it to full term, she likely would have required a third C-section that could damage her uterus beyond repair, and she still wants another child. A Travis County district judge granted a restraining order allowing her to get an abortion.
In stepped Texas Attorney General Ken Paxton, fresh off escaping an attempted impeachment for egregious alleged corruption (he will be on trial next year for a securities fraud case, after eight years of delay), prevailing through the signature conservative combination of vicious cruelty and threats. He demanded that the Texas Supreme Court reverse the district court ruling, and separately threatened the hospitals where Cox’s doctors work, as well as any other medical provider that would give Cox potentially lifesaving care, mentioning “first degree felony prosecutions, and civil penalties of not less than $100,000 for each violation.” Sure enough, the Supreme Court did as Paxton asked.
Cox ended up fleeing to another state to get the abortion.
In sum, the Texas Republican Party, from the legislature to the executive to the judiciary, did its absolute utmost to force a woman to carry an utterly doomed and dangerous pregnancy to term. We must conclude that this is what Republicans want. If they can, they will force all pregnant people to carry their pregnancy to the bitter end, no matter where it came from, and no matter the risk to life and limb. If mothers and fetuses alike die as a result, so be it. And if anyone defies them, they will go to jail.
The case further reveals the two immediate problems with Republican abortion ban exceptions. First, when it comes to health, they are vaguely worded, with no clear guidance about what precisely constitutes a problem grave enough to qualify for an abortion. Liberal legal groups have tried to hash this out in various courts, with the usual inconsistent and glacially slow results, which do not match the urgency of needed care. That should be no surprise given that judges are not, as a rule, trained in medicine or science of any kind, let alone the knottiest problems of obstetrics.
Second, even when the exceptions are theoretically clear—like those for rape or incest, which exist in some but not all legislative bans—in no state have Republicans set up a clear process through which someone with health risks can apply for an abortion. On the contrary, they have done their absolute utmost even before Dobbs to harass state abortion providers out of existence, often assisted by terrorist violence. As soon as that decision dropped, for instance, the last remaining abortion clinic in Mississippi shut down. So when a 12-year-old girl in Clarksdale, Mississippi, was raped by a stranger and became pregnant, her only option was to drive nine hours to Chicago, something her impoverished family could not afford. Republican policy forced a seventh grader to bear and give birth to a baby conceived through rape.
The Texas Republican Party did its absolute utmost to force a woman to carry an utterly doomed and dangerous pregnancy to term.
It should therefore come as no surprise that the Texas Supreme Court ruled as they did. “Only a doctor can exercise ‘reasonable medical judgment’ to decide whether a pregnant woman ‘has a life-threatening physical condition,’” the judges write, in a ruling whose effect is to decide that question for a pregnant woman by judicial fiat. They argue that, while Cox’s doctor Damla Karsan did state that she believes Cox qualifies for an abortion under the Texas statute, “when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a ‘life-threatening physical condition.’”
First, one would think that the concept of logical implication would be covered at some point in Texas law school, but apparently not. Second, as Chris Geidner points out at his Law Dork newsletter, Karsan absolutely did assert those precise words in the initial complaint. It reads: “It is Dr. Karsan’s good faith belief and medical recommendation that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy …”
Either the judges are lying through their teeth, or they did not read the documents on which the court’s ruling was based. Both are plausible.
Anyway, it’s obvious what is happening here. These so-called exceptions were never anything other than window dressing, attempting to trick a public that is overwhelmingly hostile to the Republican position on abortion. When the exemptions are actually tested, the hacks and frauds constituting the ranks of Republican attorneys general and judges will spin up some Kafkaesque gobbledygook, or just outright lie, about why the answer is no. Regardless of the situation, they believe they should always get to barge into one of the most painful situations imaginable and dictate terms to mothers and doctors.
As President Biden said in a statement, “No woman should be forced to go to court or flee her home state just to receive the health care she needs. But that is exactly what happened in Texas thanks to Republican elected officials, and it is simply outrageous.”
It isn’t just Texas, either. As I was writing this article, the Associated Press reported that a Kentucky woman who had been suing the state to end her pregnancy “learned her embryo no longer has cardiac activity.”
And this might not be the end of legal liability for Cox and others. In addition to criminal abortion bans, Texas also has its infamous abortion bounty law, which allows anyone to sue people who “aid and abet” an illegal abortion for $10,000. Cox, her doctors, her lawyers, anyone who helped her leave the state, and possibly even the out-of-state hotels and doctors that helped her may be liable. Paxton’s history of vindictive cruelty against women who try to stand up to him suggests he may attempt this.
