A mess in Texas: Abortion case highlights gray areas of abortion bans

“All of this confusion is revealing that Dobbs is not itself workable,” said Greer Donley, a law professor at the University of Pittsburgh, referring to the case that overturned Roe. “Dobbs is premised on the distinction between elective and therapeutic abortions, that … you can ban one while protecting the other. We’re learning in real time that that’s not possible.”

Kate Cox, a 31-year-old Dallas-area mother of two who is about 20 weeks pregnant, was recently informed by her medical team that her fetus has the likely fatal condition Trisomy 18 and that continuing the pregnancy would put her at high risk of hypertension, gestational diabetes and infection. But her doctors, afraid of prosecution or losing their medical licenses under the state’s near-total ban, said they would not provide an abortion until the fetus died.

Cox took the case to court, and a state judge ruled Thursday that she could obtain an abortion and that the doctor performing it could not be criminally charged. Hours later, Texas Attorney General Ken Paxton warned Cox’s doctor and the hospitals where she practices that they could still be prosecuted if they go forward with the procedure. The court injunction, he argued, only blocks his office from bringing criminal charges, but doesn’t prohibit local prosecutors from doing so or stop state residents from filing civil charges.

Paxton added that with the state expected to appeal the ruling, the physicians won’t be protected from criminal charges should the lower court order be overturned.

“The [temporary restraining order] will expire long before the statute of limitations for violating Texas’ abortion laws expires,” he warned.

Democrats have since seized on the case and Paxton’s decision to intervene and appeal it to the state’s supreme court, believing it highlights two of their central arguments: women’s rights are in jeopardy under a GOP-controlled government and the system of checks and balances is under attack.

Biden officials focused on reproductive rights have been monitoring Cox’s case. But Paxton’s threat Thursday elevated the issue among those in President Joe Biden’s orbit, alarming allies who saw it as a direct attack on Cox and her doctors in defiance of a court order. The move also raised concerns that it could further confuse a medical establishment still struggling to manage the fallout of last year’s Dobbs decision.

Biden’s reelection campaign plans to argue the case is a prime example of the existential threat posed to women’s reproductive rights if Republicans return to power in 2024.

“Ken Paxton is doing a great job of expressing for thousands of women in Texas the horror of having the state in charge of your pregnancy,” said Cecile Richards, the former CEO of Planned Parenthood and current co-chair of Democratic Super PAC American Bridge 21st Century. “These are people’s lives that are at stake, and it’s only going to get worse.”

The campaign on Friday repeatedly highlighted coverage of Paxton’s statement. It also sought to use the legal standoff to target GOP presidential frontrunner Donald Trump, portraying the case as a direct result of the former president’s actions — from appointing three justices to the Supreme Court to backing policies aimed at limiting reproductive rights.

“This story is shocking, it’s horrifying, and it’s heartbreaking — it’s also becoming all too commonplace in America because of Donald Trump,” Rep. Veronica Escobar (D-Texas), a Biden campaign co-chair, said in a statement. “The American people should know that Donald Trump and MAGA Republicans won’t stop here.”

The Trump campaign did not immediately respond to a request for comment.

Doctors have warned since the fall of Roe last year that vague and unscientific language in state abortion bans leaves them unsure of when they’re able to intervene, even when patients have life-threatening complications.

Texas’ ban, for instance, has no exemptions for rape, incest or fatal fetal anomalies, but allows abortions to take place when the patient is “in danger of death or a serious risk of substantial impairment of a major bodily function.”

Donley said that uncertainty about what that means — coupled with the threat of incarceration, bankruptcy and the end of their careers — is having a chilling effect on doctors.

“Think of all the words in there: What is ‘serious’? What is a ‘substantial impairment’? What is a ‘major bodily function’? Every one of those terms is a pressure point, subject to interpretation,” she said. “It’s understandable that hospitals are interpreting those exemptions in the most narrow way possible to protect themselves.”

Anti-abortion groups in Texas are rallying behind Paxton and characterizing Cox’s lawsuit as an attempt to undermine and ultimately get rid of the state’s ban. Both Texas Alliance for Life and Texas Right to Life told POLITICO they are unconvinced that Cox qualifies for a medical exemption and said she should carry the pregnancy to term even if the baby does not survive.

“When a child is aborted, they’re robbed of any length of life they might have had, and the family is robbed of the chance to hold and grieve that child. That is not the compassionate option for that family or child,” Amy O’Donnell, the spokesperson for Texas Alliance for Life, said in an interview.

John Seago, the president of Texas Right to Life, said he agrees with critics of the ban that its exemptions aren’t “speaking the exact language doctors do.” But he argued it’s the responsibility of the state’s medical board and private medical associations to educate doctors about when to apply those exemptions.

“They have failed in their job to explain to doctors and hospital ethics committees and attorneys what the law is,” he said. “Medical associations need to do their job and educate physicians on the front lines.”

Both Cox’s case and another filed Friday in Kentucky by an anonymous pregnant woman represent a new chapter in the legal battles over abortion post-Roe. Until now, most cases have been brought by doctors and advocacy groups challenging bans on behalf of their pregnant patients, because pregnancy and abortion are so medically precarious and time-sensitive compared to the slow pace of court proceedings.

GOP officials have argued in court in Texas, Kentucky and other states that those doctors and groups have no standing because they aren’t the ones harmed if a pregnancy continues, and interests aren’t always aligned between doctors and patients. Now that pregnant people are filing challenges, it will test who, if anyone, conservative-leaning judges allow to bring a lawsuit.

“There must be a way into the courthouse doors,” said Brigitte Amiri, the deputy director of the ACLU Reproductive Freedom Project who is working on the Kentucky case. “They can’t say there’s no third-party standing for doctors, then say we can’t have a pregnant person bringing this case for other reasons. You have to allow citizens to challenge laws.”

Cox’s legal team stressed that it’s not feasible for most people in her situation — or most people seeking an abortion in general — to have the time, courage and resources to bring legal challenges.

“Health care doesn’t work this way,” said Molly Duane, a senior staff attorney at the Center for Reproductive Rights. “I certainly wouldn’t want my doctors waiting around for a court to decide whether or not she could save my life.”

Cristeen Gonzama

Cristeen Gonzales writes about health and medicine. She tends toward stories that reveal the on-the-ground impact of health policy, with a particular focus on the opioid epidemic, Covid-19 and abortion.

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