The Anger Over Texas Abortion
Terry H. Schwadron
Dec. 13, 2023
The puzzle is whether what’s making me most angry is the failure of Texas officials to show a bit of merciful heart towards a woman in medical trouble or whether it is because of the hypocrisy for offering “exceptions” to the abortion-banning laws that never seem to kick in.
By now, you’ve become familiar with the case of Kate Cox, a mom of two whose 20-week pregnancy suffered a fatal genetic disorder that also put her life and her ability to have future children at serious risk.
She had been forced to turn to the courts to seek permission to end the pregnancy under the medical exceptions part of the abortion law, gaining a favorable ruling at a hearing only to face a wrathful Texas Attorney General Ken Paxton who both appealed the decision and threatened prosecution of any doctor or hospital stepping in to help her.
As the clock ticked for the Texas Supreme Court, all Republican justices, to consider the case, she finally fled Texas for an unnamed abortion-legal state. The court handed down its moot ruling anyway — denying Cox the legal right to an abortion law exception.
Paxton, who recently survived impeachment, has no medical training, but he clearly felt he had the legal and moral right to decide that Cox’s medical condition. His judgment was that a diagnosis that fetus faced a near-certain fatal illness, did not qualify for an exception in which “a pregnancy seriously threatens the health or life of the woman.” Just to clarify, Cox had been to the emergency room four times before leaving the state.
Apart from the debate over a society that thinks anti-choice views of a minority ought to be the law of the land, if there must be restrictive laws, ought we not be able to understand them?
Whose Medical Judgment?
Issue one here is whether political principle should overrule medical judgment in this case — or frankly in others more generally. In pursuit of the apparent Holy Grail of eliminating abortions for the sake of forced birth, the laws being passed by Texas and half of the states basically insist on doing exactly that.
That the Cox case had to end up in the courts with a medically troubled mother having to beg for medical treatment depicts a set of solutions that are out of line with our expectations for First World medical treatment. That the Texas justice system could take even that court intervention and basically ignore it to threaten prosecution of any doctor or hospital willing to carry out the court order goes well beyond legal consideration solely.
What is supposed to be behind a pro-Life movement is some caring about the living rather than strict and unbending consideration for a political principle.
If the harshest judgment here is that Texas has shown itself officially and legally insensitive to an individual exception proscribed by that patient’s doctors, the broader issue is that no one understands how these restrictive laws are supposed to work sufficiently to understand in plain language how exceptions are to be made.
The act of threatening doctors for taking actions — in this case abortions — based on medical opinions is frankly outrageous.
If the laws were clearly understood, there would be no need to appeal to a court for interpretation. If the laws were just, there would be no need to worry about a doctrinaire attorney general, now backed by a state supreme court, that an individual case would be lost to the failure of legislators to spell out exactly how their new rules recognize mercy.
Meaningful Exceptions
The outcry from choice advocates has been quick and strong, with the message being that even in those states where exceptions to abortion bans are considered, they are cloaked in legal uncertainty.
“I think it’s the clearest message you could have possibly received from an anti-abortion state that they never meant the medical exemption to mean anything at all,” Molly Duane, the Center for Reproductive Rights attorney representing Cox told interviewers.
That same Texas Supreme Court is considering arguments in a lawsuit brought by two doctors and 20 women who had been denied medically necessary abortions and were seeking to clarify the scope of emergency exemptions to the state’s ban.
As Michelle Goldberg in the New York Times reminds, among the plaintiffs is Amanda Zurawski, who was 18 weeks pregnant after a year and half of fertility treatments when her water broke. Although her pregnancy had no chance of surviving, she was denied an abortion until she became septic. Zurawski ended up spending days in an intensive care unit and her reproductive tract has been so damaged that it will be difficult for her to become pregnant again.
At stake is the question of clarity in exactly what the rules for exceptions are — something that never came about in the Cox decision.
The only things that are clear here are that we shouldn’t expect that justice systems here to show mercy, and that there is a reason why every state that puts these questions to voters rather than keep them in the hands of Republican-majority state legislatures opts for a system that leaves reproductive choice in the hands of women and their doctors.
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