Texas strict abortion law claims an exception for the mother's life, but in reality, "not so fast"

Echo Opinion published in the Los Angeles Times by Mary Zeigler: A Texas case shows how cruel and illusory the latest abortion-ban exceptions can be.

Unbelievable! A historic drama playing out in Texas ended when the Texas Supreme Court held that Kate Cox, a woman 20 weeks pregnant with a fetus with trisomy 18, an almost always fatal abnormality, could not legally end her pregnancy in her home state.

Cox had taken the rare step of petitioning for a court-ordered abortion. She succeeded in the lower court, prompting the Texas Atty. Gen. Ken Paxton to appeal and threaten local hospitals and Cox’s doctor with prosecution if she got the procedure. 

Nevertheless, the Texas Supreme Court quickly handed down its ruling: State law did not make an exception for fatal fetal abnormalities and Cox was not near enough to death or permanent impairment of a major bodily function to qualify for an exemption. She traveled out of state to terminate her pregnancy.

Cox’s loss in court illustrates the confusing, contentious state of abortion law since Dobbs vs. Jackson Women’s Health Organization overturned Roe vs. Wade in 2022. (The Supreme Court’s announcement Wednesday that it would take up challenges to medication abortion is another such indicator.) 

Abortion-ban exceptions are particularly fraught- at risk for undesirable outcomes. Their complexities and the current antiabortion playbook add up to an extraordinary reality: Present-day abortion-ban exceptions will fail to protect patient health, no matter how Americans may interpret them or the intentions of the legislators who passed them.

When states began criminalizing abortion in the 19th century, almost every ban had an exception for the life of the patient. In the 1960s, legislators introduced additional exceptions: for sexual assault, incest, fetal disability and certain health risks.

Even then, exceptions proved to be contentious and unworkable. Early on, before the 1940s and 1950s, prosecutions were rare unless a patient died. In practice, that gave physicians discretion to determine when there was a real threat to patients’ lives. But later, prosecutors began cracking down on a larger group of abortion providers. Hospitals and physicians responded by setting a high bar for legal abortion to shield themselves from criminal liability. Patients without money or connections had little luck, and it could be daunting, even traumatic, to try to convince physicians that a sexual assault had really occurred, or that a health threat was serious enough to qualify them for an exception.

The post-Roe generation of abortion-ban exceptions are even more gravely problematic. The legislators who passed “trigger bans” before Dobbs, or fresh bans afterward, have often authorized punishments for doctors — and others in women’s support networks — that are much harsher than any that were common before 1973, including life in prison, the penalty in Texas for doctors.

Many of the new abortion statutes copy model language developed by antiabortion groups anxious that any exception could become a loophole for abortion on demand. For example, an exception for sexual assault could invite women to “cry rape.” Or if health dangers included risks to mental well-being, it could be too easy for women to get permission to legally terminate a pregnancy.

The new bans seek to eliminate discretion for physicians as well. Some, creating so-called affirmative defenses, require doctors to prove they are innocent ❓ rather than mandating that prosecutors establish their guilt. (HELLO? Isn't this against the law?)

As important, leading antiabortion figures oppose exceptions as a matter of principle. They embrace the idea that a fetus is a rights-holding person, and therefore no exception can be justified if the unborn child is by law treated like the rest of us. Even though — as Cox’s case shows — Texas’ ban makes an exception almost impossible, for Americans opposed to abortion, it represents compromise.

In other words, the goal of the new bans is primarily to protect fetal life. Exceptions appear in virtually every law, but their purpose is more to deter patients viewed as undeserving — unless you can prove your imminent demise, for example — not to safeguard women’s health.

Cox’s lawsuit is far from the only attempt to clarify or challenge abortion-ban exceptions. A plaintiff in Kentucky has filed a class action seeking permission for an abortion. Lawsuits in Texas, Tennessee and Idaho argue that if state exceptions cannot be more broadly interpreted, then the laws themselves are unconstitutional. In some states, courts have already weighed in on the constitutionality of specific exceptions, with more cases likely to follow.

The same message emerges from these cases, whether plaintiffs like Cox win or lose, and perhaps especially if they fail. The exceptions Dobbs brought into effect do not work the way many Americans might have guessed, and may be designed not to work for patients at all. When the state’s interest in fetal life clashes with real health threats faced by women, patients will always find themselves on the losing side.

Mary Ziegler is a law professor at UC Davis and the author of “Roe: The History of a National Obsession.”

Senator Marsha Blackburn's constituent speaks: "And I vote!"

A Tennessee voter opinion letter echo published in the Chattanooga Times Free Press:

The fight for choice begins anew for us! Senator Marsha Blackburn's political wake up call! (Medusa needs a comb, ya think?)

Senator Marsha Blackburn must listen to her Tennessee constituents! By the way, does Senator Blackburn happen to own a comb?  She sure needs one.

Dear Editor: A Supreme Court stacked with partisan justices stolen by corrupt politicians has overturned Roe with its recent ruling on Dobbs and gutted the federal protection of abortion rights and control over women's bodies. I'm here to say that we won't go back, and we won't back down.

The Dobbs ruling will impact people of color and poor people the most. People of means and privilege, mostly white women, who can afford the travel, expenses and potential wage loss, will continue to get abortions. Make. No. Mistake.

I won't stop fighting for abortion justice, and I'm not alone. You'll hear us. Millions of us; our voices loud, fierce and united. You'll see us. Millions of us; strong, committed, continuing the fight for abortion rights in our cities, towns and state houses across the country.

We will go to the polls. We will vote for elected officials that support protective federal abortion legislation and abortion rights in our states. And we will fight until we defeat every candidate, every legislator, who wants to impose bans on our bodies. I will vote.

And I am not alone.

Shelby Cobb

The health and life of women in America are now at risk

"....the Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized. They didn’t limit it. They simply took it away. That’s never been done to a right so important to so many Americans," President Joe Biden.

Echo essay by Mary Ziegler, published in The Atlantic. 

For months and even years I have seen this coming, and yet the reality of the Supreme Court’s decision is still a shock. 

So, how can it be that people had a constitutional right for nearly half a century, and now no more? How can it not matter that Americans consistently signaled that they did not want this to happen, and even so this has happened?

No one should get used to their rights.

The Court’s answer is that Roe is different. Roe, the Court suggests, was uniquely, egregiously wrong from the beginning—a badly reasoned decision criticized by even the most ardent supporters of abortion rights, including the late Justice Ruth Bader Ginsburg. The majority suggests that the best comparison to Roe (and Planned Parenthood v. Casey, the decision that saved abortion rights in 1992) is Plessy v. Ferguson, the 19th-century decision that held racial segregation to be constitutional.

If this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights. Predicting with certainty which ones, if any, will go, or when, is impossible. But Dobbs v. Jackson Women’s Health Organization is a stark reminder that this can happen. Rights can vanish. The majority wants us to think otherwise. They tell us that a right to abortion is unlike other privacy rights, such as the right to marry whom you wish or to use whatever contraception you choose. Abortion, in their view, is distinct from these, because it puts someone else’s life on the line. And so if we believe the Court’s conservative justices, this is a reckoning about abortion and nothing more.

Even if this is the case, the Court’s decision is staggering. Emphasizing that no other rights will be lost—convincingly or not—suggests that there is no problem if this right disappears with the stroke of a pen. The majority opinion spends precious little time on the damage that reversing Roe will do.

Often, when the Court considers whether to reverse a past decision, the justices ask whether anyone has relied on the status quo—and whether unsettling it will devastate those people. The majority in Dobbs says almost nothing about the kind of disruption that is likely to come now that Roe is gone—and ignores the possibility that people have thought differently about intimate relationships, career decisions, and even how to make ends meet based partly on the idea that abortion is available. The Court stresses that it does not care about the public’s reaction to its opinion—the justices must simply do their jobs and interpret the law. The justices seem to simply not care if this decision breaks the country in two. Wrong is wrong, the justices declare. The rest hardly registers.

But if the Court can so blithely reverse Roe—when all that has changed is that conservatives finally had the votes—we should wonder whether this is just about abortion.


After all, this decision did not come about solely because Roe was a weakly reasoned decision. This opinion did not come down because Roe launched our culture wars (a comforting but completely ahistorical lie). This decision reflects decades of organizing by a passionate and savvy social movement that argues that fetuses have fundamental rights—and that, in fact, the Constitution does have a view on abortion, and that view is that abortion is unconstitutional. This movement has been brilliantly successful in its efforts to control the Supreme Court, influence the rules of campaign spending, and remake the GOP.

And America’s politics have changed too. Dobbs is a product of a deeply divided country. The laws emerging from conservative states would have once seemed politically toxic, but now the gap between red and blue states has widened to the point that once-unthinkable laws are the new normal. Dobbs shows that the Supreme Court reflects and reinforces the dysfunction and ugliness of our politics—and does so at a time when faith in democratic institutions is already fraying.

In some ways, this has long been true. Progressive scholars have criticized a system in which five judge can determine which rights we have. Others have written for years that courts are not engines of social change and do not meaningfully protect constitutional values, and that the Court has, throughout its many years, been regularly partisan and out of step with popular opinion.

But until recently, there were limits on what the Court would do. Historically, the justices seemed reluctant to do anything too radical, lest they cause a backlash that damaged the power and prestige of the institution.

One might have expected any such guardrails to be particularly effective at protecting Roe, the best-known of any Supreme Court decision, and one that many Americans seem to support. The Dobbs decision makes plain that those limits are gone. In their place is a kind of constitutional partisanship, dictated by the interpretive philosophies and political priors of whoever currently has a majority on the Court and nothing more.

The age of Roe was not a static one. In 1973, the Supreme Court declared a right to abortion—not just for the women who wanted an abortion but also in part for the doctors who performed the procedure. But within a matter of years, that consensus fell apart, and Roe became identified more narrowly with people who have abortions and the broader women’s movement. By peeling doctors away from the people Roe protected, lawmakers in red states and in Congress were able to sever abortion rights from access to the procedure, eliminating Medicaid reimbursement and then erecting a seemingly endless number of barriers to exercising the right that people theoretically had. More recently, the conversation about abortion has morphed once again: Reproductive-justice advocates, and especially activists of color, have argued that abortion should be understood neither as a matter of single-issue politics nor as a question of “freedom of choice” but as part of a broader social-justice agenda that helps everyone, and especially people of color, decide when to become parents and then receive support after they do.

Roe v. Wade is gone, but Dobbs is not the end of the story of abortion rights in America. If anything, the past five decades have demonstrated that the Supreme Court alone cannot forever put to rest the idea of a constitutional right to abortion. 

Indeed, the Court has a lot of power, but so do the American people, and they still have a lot more to say.

Mary Ziegler is a professor of law at the University of California, Davis. She is the author of Abortion and the Law in America: Roe v. Wade to the Present and Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.