Welcome to the New Jane Crow

If a nonviable, life-threatening pregnancy cannot satisfy the “exception” in Texas anti-abortion legislation, then what can?

Center for Reproductive Rights attorney Molly Duane at the Texas Supreme Court in Austin, Texas, on Nov. 28, 2023, arguing a case that seeks to determine when and whether doctors can terminate a pregnancy. (Suzanne Cordeiro / AFP via Getty Images)

The Supreme Court of Texas notched itself into a troubling tapestry of U.S. legal history when it overturned a district court ruling that would have allowed Kate Cox, a 31-year-old Texas woman, to end her nonviable pregnancy. 

District Court Judge Maya Guerra Gamble granted the exception based on copiously assembled facts offered in the case. She took seriously that Cox’s life would be in danger if the pregnancy advanced (it was already 20 weeks along). The judge noted that the current pregnancy is nonviable due to a fatal affliction with trisomy 18. She also referenced that any potential future pregnancy for Cox, a mother of two children, would also be threatened.

However, that robust record, so thoroughly detailed, could not overcome the challenge brought by the state. The state is committed to forcing Cox to remain pregnant, against her will and medical recommendations.

The court stated that it would defer to medical judgements in these instances, but dismissed the medical advice provided by Ms. Cox’s doctor which was part of district court’s deliberations.

The ruling itself exposes why Americans are losing confidence in their courts—especially as the opinion is troublingly mired in cognitive dissonance and legal doublespeak. Here are a few examples.

First, the Supreme Court of Texas acknowledged Cox’s pregnancy is undeniably ‘extremely complicated”—yet, it found Cox’s pregnancy did not pose the type of threat and danger anticipated in the state’s narrow exception.

Second, the Court stated it would defer to medical judgements in these instances, but dismissed the medical advice provided by Cox’s doctor, which was part of district court’s deliberations.

Third, the Court claimed that the Texas legislature “permit[s] a significant exception to the general prohibition against abortion.” However, the case itself, and now Cox’s decision to travel out of state to obtain the medical care she needs, proves the fallacy of the exception being “significant,” meaningful or accessible. Indeed, immediately following the district court order, the state’s attorney general Ken Paxton sent threatening letters to hospitals, warning them against providing the abortion. 

Finally, although the highest court in the state, the justices claimed they lacked any power to intervene. According to the order, the state’s abortion ban and its exception “reflect the policy choice that the Legislature has made, and the courts must respect that choice.” This lack of judicial independence and compassion should be alarming to all people in Texas.  

Granting no oral arguments in the case, the Supreme Court of Texas ordered Judge Guerra Gamble to “vacate” her ruling and made note that it would issue a writ “if the trial court fails to do so.” The Texas Supreme Court’s order—the first of its kind in 50 years—has ramifications for millions of women in Texas and may serve as a reference point for future litigation in other states with abortion bans. 

Women in Texas are living in a new Jane Crow.

Make no mistake: The Supreme Court of Texas can now count itself among Jim Crow courts that upheld unjust laws, sanctioned invidious discrimination, and claimed they lacked the authority and capacity to intervene against laws that thrust Black Americans into a vile and dangerous second-class citizenship. Judicial opinions in that era exposed a moral deficit incompatible with claims of equal rights and the full constitutional personhood of Black Americans.  States’ courts upheld myriad unjust laws denying Black Americans privacy, autonomy, and full personhood. Jim Crow laws banned interracial marriage; segregated schools, buses and eateries; and even prohibited Black people from swimming in the local pools. The risks of violating those laws could be severe—even death.

To escape those harsh realities, Black Americans had to flee Jim Crow cities and states … just as Kate Cox has done. 

Yet, it is worth noting, the Supreme Court of Texas’ fidelity to this type of shameful legacy, now resuscitated against vulnerable women, was not inevitable. Rather, it reflects a choice.

Women in Texas are living in a new Jane Crow. If a nonviable pregnancy, with life-threatening ramifications, cannot satisfy the exception in the state’s anti-abortion legislation, then what can, short of death? As reproductive freedom advocates warned, the Texas exception is more illusory than real. However, this should not come as a surprise: A decade ago, over the objection of her husband and parents, Texas forced Marlise Munoz, a brain-dead pregnant woman, to gestate a nonviable fetus for 62 days while her body decomposed and rotted in a Texas hospital.  

Abortion rights demonstrators protest outside the Bob Casey Federal Courthouse in Houston on June, 24, 2022, after the Supreme Court overturned Roe v. Wade. (Brett Coomer / Houston Chronicle via Getty Images)

Cox’s story, against the backdrop of the current anti-abortion litigation landscape, is sadly one of many—such that the new Jane Crow is not isolated, but rather a well-organized and funded movement that spreads its influence into states’ legislatures and increasingly funds judicial campaigns. 

Today’s Jane Crow politics seek to undermine the constitutional personhood and rights of women, girls and people with the capacity for pregnancy. It threatens, punishes, stereotypes and shames them and the people that support and love them.  

If you recently had an abortion, are seeking an abortion, or need legal support for your pregnancy outcome contact the Repro Legal Helpline at (844) 868-2812 for confidential legal information and advice. If you provide or support abortion care and have questions about your legal rights or have been threatened with legal action related to abortion, contact the Abortion Defense Network.

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Michele Bratcher Goodwin is a prolific thoughtleader on matters of constitutional law and health policy. In addition to Ms. magazine, Dr. Goodwin's commentary can be read in The Atlantic, The New York Times, the Nation, CNN and The L.A. Times, among others. She holds the Linda D. & Timothy J. O'Neill chair in constitutional law and global health policy at Georgetown Law School and serves as the co-faculty director of the O'Neill Institute for National and Global Health Law. She is the executive producer of Ms. Studios.