The Texas Supreme Court, including one judge who was arrested for protesting abortion clinics, just denied a potentially life-saving abortion for a woman whose fetus had a fatal diagnosis.
This story originally appeared on Jill.substack.com, a newsletter from journalist, lawyer and author Jill Filipovic.
Kate Cox was 20 weeks pregnant with her third child when her fetus received a devastating diagnosis: Trisomy 18, a genetic defect incompatible with life. If Cox didn’t miscarry late in pregnancy, she would give birth to a child who was stillborn or who would die soon after coming into the world. Continuing the pregnancy put Cox’s own health at risk—she ended up in the emergency room several times—and, doctors said, because of her previous C-sections could rupture her uterus and compromise her future fertility.
The state of Texas said: Too bad.
A doomed pregnancy is itself devastating. Being forced to continue one is torture: fielding congratulations and belly-touches from strangers; going through the pain and peril of pregnancy; risking your life in childbirth knowing your child will die—and then watching it happen. This is exactly why so many pregnant women who receive devastating diagnoses choose to terminate these wanted-but-cannot-be pregnancies.
But Kate Cox lives in Texas, and so she didn’t have a choice: Texas, like most states that criminalize abortion, allows no exception for severe fetal anomaly. So, with the backing of her doctor and the Center for Reproductive Rights, Cox petitioned the courts to allow her to end her doomed pregnancy, protect her own health and fertility, potentially save her own life, and certainly preserve her own sanity.
The Texas Supreme Court said no.
After a lower court agreed that Cox could have a necessary abortion, the state of Texas appealed, arguing that under Texas law, Cox must be legally forced to continue her pregnancy—the health issues it poses, the state argued, simply aren’t severe enough to warrant an abortion, and the fact that the fetus is going to die is immaterial to whether or not the state can force a woman to carry and birth it.
One of the justices who sits on the Texas Supreme Court and concurred with their ruling, John Devine, is a radical Christian fundamentalist who was embroiled in a lawsuit when he refused to remove a painting of the Ten Commandments in his courtroom. He’s also a rabid abortion opponent who has bragged that he was arrested 37 times for protesting abortion clinics, and has been convicted of committing crimes at those protests. And he ran for his Supreme Court seat on a campaign of glorifying women who are willing to die in order to continue doomed pregnancies:
[The campaign video] documents the birth of his seventh child, Elizabeth, which his wife carried to term despite the fact that the fetus had a condition likely to kill her. She survived, and the baby died an hour later. The video opens, “What if your beliefs were so powerful, they allowed you to fearlessly risk your life for the life of your unborn child?” and concludes, “Though Elizabeth died only an hour after she was born, her life began at conception.”
Devine’s wife is certainly within her rights to risk her life, and risk leaving her six children motherless, to carry a doomed pregnancy to term. I personally would not make that choice, and believe that choice to frankly be profoundly immoral, and if my partner were making that choice I would question their commitment to our existing children and their fitness as a parent.
But that’s the thing with reproductive choices: People should get to make their own. Devine, though, disagrees. He seems to think that every woman should be compelled by the state to do as his wife did—even though they may not be as lucky and may not survive.
And despite his long-standing anti-abortion activism, he did not recuse himself from this case.
In the lead-up to the court’s decision, Texas Attorney General Ken Paxton threatened to prosecute any doctor who performed the procedure, and sent letters to several hospitals threatening criminal and civil penalties if any of their doctors agreed that an abortion was necessary to save Cox’s life and performed one. The penalty for abortion in Texas is as long as 99 years in prison and up to $100,000 in fines.
Which makes the Texas Supreme Court’s ruling all the more egregious: In it, the court essentially argues that it is doctors who must exercise their “reasonable medical judgment” when deciding whether or not an abortion is necessary to save a woman’s life—even though, in doing so, doctors open themselves up to life imprisonment, loss of their license, hundreds of thousands of dollars in fines, and endless private lawsuits from any busybody misogynist who wants to target them. Courts, the ruling says, shouldn’t decide whether a woman can get an abortion; that’s up to the medical professionals:
A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. 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.
This is disingenuous beyond parody. It leaves out the fact that the Texas law makes medical necessity an affirmative defense to its abortion criminalization law—in other words, any abortion is automatically suspect and assumed to be a crime. A doctor can defend herself by demonstrating that the abortion was medically necessary, but at that point she could be under arrest, charged with a serious crime, and at trial. She’ll need more than simply her best medical judgment to maintain her freedom.
The lower court found that Cox’s doctor, Damla Karsan, “has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances. Dr. Karsan, however, cannot risk liability under Texas’s abortion bans and laws for providing Ms. Cox’s abortion absent intervention from the Court confirming that doing so will not jeopardize Dr. Karsan’s medical license, finances, and personal liberty.” (Emphasis mine.)
If she had performed the abortion, she would be subject to life in prison, and was already being threatened by the Texas attorney general with just that.
The lower court also noted that Cox is married, and that her husband and the father of her children wants to help her obtain an abortion, but also “needs assurances from this Court that doing so will not violate Texas’s abortion bans and laws.” After all, in Texas, helping someone get an abortion can land you in serious legal trouble.
The Texas Supreme Court simply rejected this out of hand, holding that Dr. Karsan had not asserted that, in her “reasonable medical judgment,” Cox needed an abortion. Never mind that one’s good faith belief, exercising one’s best medical judgment, certainly rises to the level of a “reasonable medical judgment.” And anyway, the Court said, if in the doctor’s reasonable medical judgment an abortion was necessary, she should have just performed one, not petitioned the courts for permission. What they don’t say is that, if she had performed the abortion, she would be subject to life in prison, and was already being threatened by the Texas attorney general with just that; Cox’s husband, too, could have would up imprisoned, bankrupted, or both if he helped his wife end this dangerous pregnancy. And so they asked the courts for help, or at least clarity. The Texas Supreme Court essentially said: If you think you’re so right, try it and see what happens.
Abortion criminalization laws are universally appalling. But the state of Texas could have written the law so as to allow doctors to make these kinds of difficult calls in good faith, using their best medical judgment. The law does not do this: Instead, it threatens doctors who perform abortions with a lifetime behind bars. Very, very few doctors are going to take that risk—even if they believe that the pregnant patient in front of them may die, lose her fertility, or experience some other preventable horror.
It’s not surprising: It’s exactly what happens when the theocratic, fundamentalist ‘pro-life’ movement seizes power.
Kate Cox has now left the state of Texas and is having a safe, legal abortion elsewhere. But that’s expensive and onerous. It’s not an option for many women with limited resources, nor those whose medical complications are severe enough to prevent travel.
And as Jessica Valenti points out, this dystopian reality in Texas is exactly what Republicans and anti-abortion advocates want for the whole country. The Republican “compromise” legislation of a 15-week abortion ban offers no exceptions for fetal anomaly, even though many of the most severe problems are not detected until a 20-week scan. And as far as I can tell, no major anti-abortion group in the nation favors exceptions to abortion bans that would allow for termination in cases like this one, where the fetus has a fatal defect, or where a pregnancy threatens a woman’s health or future fertility.
Many anti-abortion activists and organizations deny that pregnancy ever threatens a woman’s life, and argue that abortion is never life-saving—that there should be no exceptions at all to laws that make abortion a serious crime.
This is all grotesque and radically out of line with what we would expect of a reasonable advanced and humane society, but it’s not surprising: It’s exactly what happens when the theocratic, fundamentalist “pro-life” movement seizes power. The U.S. is far from the first nation in which women’s bodies have been rendered little more than incubators and women’s lives made inferior to those of fetuses—even fetuses that will not live. This is precisely what feminists said would happen, and what abortion opponents denied would ever occur (they lied).
Kate Cox is a hero. In a moment of the deepest grief imaginable, she stood up for herself, and for all of us. She could have quietly left the state and terminated in private, avoiding the anguish of a very public court case and the judgment of everyone from the public to the press to some of the most powerful men in the nation. I’m not sure I would have had her fortitude.
I’m glad she’s getting the care she needs. And her case wasn’t for naught. These noxious, misogynist, deadly laws are not going to change because the conservatives in power suddenly decide that they care if women die (just look at the track records of their states—the most “pro-life” places in America are also generally the most deadly for mothers and babies). These laws are only going to change once the public understands what they actually do and decides to fight back. By going public, Cox put a name, a face, and a devastating story into the broader discourse. No one except a true moral monster could hear her story and agree that she should be forced by threat of law to continue this pregnancy. And yet many monsters in our country’s high offices have done just that.
Cox fought back. The monsters won the battle. But that doesn’t mean they’ll win their war against women.
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