The Texas Supreme Court has made clear that its state is not a safe place to become pregnant. That is the bottom line of its astonishing decision that reversed a lower court’s order protecting a woman who wanted to end a dangerous and futile pregnancy.
Kate Cox, who is the mother of two young children, has had difficult pregnancies in the past. She recently learned that her fetus has a rare fatal condition called trisomy 18. If she carried the pregnancy to term, the baby would almost surely die in pain within a year and she might be unable to have any more children.
Texas bans abortion, but the statute has an exception in cases where “in the exercise of reasonable medical judgment, the pregnant female” has a condition that endangers her life or “poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” Childbearing is obviously a major bodily function.
But Texas law also imposes heavy criminal and civil penalties on a doctor who performs an abortion that is not within the exception. That led Cox’s doctors to state that their “hands are tied” until the fetus dies. She argued before a trial court judge that she is protected by the statute, and the court issued an order barring any such prosecution. “The Court finds that Ms. Cox’s life, health, and fertility are currently at serious risk,” the judge wrote. “The longer Ms. Cox stays pregnant, the greater the risks to her life.”
Texas Attorney General Ken Paxton responded by sending the doctor and the hospital a letter threatening prosecution. He appealed the trial court’s ruling to the State Supreme Court, which reversed the order protecting the doctor from prosecution. The court offered a lot of comforting language about the scope of the exception, which National Review’s Ed Whelan now quotes to show that the medical-necessity exception “is not as narrow as Cox’s lawyer and others contend.” Here is what the Supreme Court said:
the statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.” The exception does not hold a doctor to medical certainty, nor does it cover only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.
The determination of necessity, the court declared, is for doctors, not courts.
But then, why reverse the injunction? Dr. Damla Karsan stated her “good faith belief and medical recommendation” that Cox had “a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed.” The Texas Supreme Court wrote that “Dr. Karsan did not assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.” Please reread and compare those last two sentences. The Texas Supreme Court is either incompetent or lying.
After misrepresenting the record, the court declared that, even if the doctor did have that “good faith belief,” the doctor did not recite that her belief was a “reasonable medical judgment.” She also did not say that she is a member of the species homo sapiens, or that Texas is on the surface of the Earth. The court’s demand invites comparison with the racists who deployed weird technicalities to prevent Black Americans from voting in the Jim Crow South.
The court says sweetly that, if Cox in fact satisfies the statutory requirements, “no court order is needed.” But it makes clear that it will not permit Texas courts to issue such orders in the future, whatever the facts may be in those cases. Doctors can’t ever get any legal reassurance that they can safely terminate pregnancies. Even in the most life-threatening situations, they act at their peril. They must guess what the law is. The court says that it is respecting “the policy choice the Legislature has made,” but the legislature also wrote the exception, which the court largely nullifies.
The ancient Roman historian Suetonius tells us that during the reign of the mad emperor Caligula, “great grievances were experienced from the want of sufficient knowledge of the law.” Then, “on the urgent demands of the Roman people, he published the law, but it was written in a very small hand, and posted up in a corner.” Caligula was shortly afterward assassinated by his own troops, but evidently in Texas he still has some clout.
I’m emphatically not a member of the anti-abortion movement, but I’ve always admired its insistence that America undervalues childbearing and child-rearing. Texas law, on the other hand, regards mothers with punitive suspicion when their pregnancies go wrong, as inevitably happens in some cases. It recklessly endangers them by blocking their access to medical care — even when, like Cox, they are trying to protect their capacity to have more children. Its exception for a woman’s life or health is as bogus as other states’ rape exceptions.
Texan women considering pregnancy are well advised to flee — as Cox did, leaving the state to get the care she needed. OB-GYN doctors are leaving the state as well: There are none in two-thirds of the state’s counties. Texas is assuredly anti-abortion, but that doesn’t mean that it’s pro-life.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him @AndrewKoppelman.