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.”

Texas Attorney General Paxton is not a doctor but he is a Trumpziism clone

Echo opinion published in The Washington Post by Ruth Marcus:

I strongly support the right to abortion. But I believe that those on the other side are, for the most part, motivated by the sincere belief that abortion is the taking of a human life. And so, I try to write about this contested subject with respect for their views, and for the moral underpinning of their convictions.

Texas Attorney General Ken Paxton (who came close to being impeached) is an exception. 

Paxton deserves no such respect, only condemnation for his unnecessary, inexplicable cruelty. No moral person — no person with true compassion for life — could be launched on Paxton’s current crusade against a Texan named Kate Cox.

Cox is a 31-year-old mother of two, about 20 weeks pregnant with a third, very much wanted. But the fetus has Trisomy 18, a severe genetic disorder. Some 95 percent of such pregnancies do not make it to term or are stillborn. Half of those born with the condition do not survive beyond the first week; 9 out of 10 die within the first year.

This is worse than heartbreaking; it is dangerous to Cox’s health and future fertility. Because she has had two previous Caesarean sections, Cox would have to have a third C-section because of the risk of uterine rupture. A repeat procedure would make it more difficult for her to carry a successful pregnancy in the future. Cox’s doctors have advised her and her husband that abortion would be the safest choice to protect her ability to have more children.

“It is not a matter of if I will have to say goodbye, but when,” Cox has explained. “I do not want my baby to arrive in this world only to watch her suffer a heart attack or suffocation. I desperately want the chance to try for another baby and want to access the medical care now that gives me the best chance at another baby.”

But Texas has a “heartbeat” law: As long as the fetus has a heartbeat, Cox’s doctors have advised, they cannot perform the procedure for fear of criminal prosecution and other consequences. Cox and her husband went to court to contest this determination, citing a provision of the Texas law that provides for an exception to the abortion ban in situations that pose “a serious risk of substantial impairment of a major bodily function.”

On Thursday, the couple obtained a court order to allow the abortion to proceed — specifically, enjoining Texas from enforcing its abortion ban against Cox. “The Court finds that Ms. Cox’s life, health, and fertility are currently at serious risk,” Travis County District Judge Maya Guerra Gamble wrote. “The longer Ms. Cox stays pregnant, the greater the risks to her life.”

This should have been good enough for any human being with an ounce of compassion and common sense. Not for Ken Paxton. First, he issued a statement helpfully charting the ways around the court order — that while it applied to the state, it did not prevent private parties from suing (recall the Texas vigilante law, S.B. 8, which effectively stopped abortions in the state even before the U.S. Supreme Court overturned Roe v. Wade) or stop local district attorneys from acting.

If that wasn’t enough, the Republican Paxton dispatched a letter to three hospitals where Cox’s doctor has admitting privileges, warning them that the judge’s order would not protect them or their personnel against criminal or civil liability.

“We feel it is important for you to understand the potential long-term implications if you permit such an abortion to occur at your facility,” Paxton wrote. “We remind you that the [court order] will expire long before the statute of limitations for violating Texas’ abortion laws expires.”

And Texas raced to the state Supreme Court, which late Friday blocked the abortion from proceeding.

The message to Texas health-care providers: Care for your patient at your peril. Rely on a valid court order at risk of being jailed down the road. If you perform an abortion even under these extraordinary circumstances, Texas will come after you.

And for what earthly reason? We can disagree, fiercely, about whether women should be able to decide for themselves whether to continue unwanted pregnancies. But can we not agree that women with fetuses that are not viable, or women who are destined to lose the babies they so desperately want, should not be forced to risk their lives and health in service of … what? A disputed theological conviction about when life begins that elevates that theoretical life over the actual life of a woman suffering from sepsis?

Cox’s lawyers are before the Texas Supreme Court in a separate case seeking to clarify the scope of the emergency exception. When the case was argued last week, the state’s lawyer insisted that doctors’ exercising their best medical judgment wouldn’t be at risk of being prosecuted or sued.

“With allowing reasonable medical judgment, you avoid the possibility of getting it wrong and ending up in prison,” Texas Assistant Attorney General Beth Klusmann assured the court. “As long as your judgment is reasonable, you should be fine under this law.”

Now comes Paxton, Klusmann’s boss, to make clear that is not the state’s position at all. Not only can Cox’s doctor not use her judgment about what’s best for her patient, but she also can’t rely on a court order allowing her to do so. 

This isn’t regulating abortion — it’s terrorizing those who dare to perform the procedure and endangering the women who need it.