Cox, a 30-year-old Dallas woman and mother of two, had already decided earlier on Monday that she would leave the state to seek abortion care. In a statement announcing the decision, her legal representation said that Texas Attorney General Ken Paxton and other politicians should not be making medical decisions for expectant mothers.
Cox is carrying a fetus that her doctors diagnosed with full trisomy 18, a horrifying chromosomal abnormality that would saddle the baby with a number of ailments and difficulties and would ultimately prove fatal. It was doubtful the baby would survive in the womb, and if so, for more than a short time after a full-term birth. Cox was told that carrying the baby to full-term and having it delivered via Cesarean section surgery could jeopardize her health and prove harmful to any future attempts by her and her husband, Justin, to have another child.
The Texas Supreme Court opinion opened with a summary of the scenario and the decision. For such a historic case, the first of its kind in Texas since the state outlawed abortion in July 2022, and one that tackles arguably the hottest of hot topics in the state, the document reads a bit laissez-faire.
Kate Cox and her husband Justin are the parents of two children. Ms. Cox is about twenty weeks pregnant with a third child—one who has received a tragic diagnosis. The Coxes and their doctor sue to prevent the enforcement of Texas laws that generally prohibit abortion.
These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice. Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception.
If that reads rather offhand, it gets a bit more formal later on when quoting Texas law. But don’t confuse formality with objective clarity, because that won’t be found in this instance.
“Only a doctor can exercise ‘reasonable medical judgment’ to decide whether a pregnant woman ‘has a life-threatening physical condition,’ making an abortion necessary to save her life or to save her from ‘a serious risk of substantial impairment of a major bodily function,’” the court's opinion states. “If a doctor, using her ‘reasonable medical judgment,’ decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion."
What might happen after that doctor exercised her "reasonable medical judgment," however, is anybody's guess. Despite the Supreme Court's effort to wash its hands of the matter, felony charges and ruinous civil lawsuits could still be on the table.
Terms such as “reasonable,” “serious,” “substantial,” and “major” are highly subjective. After Cox’s case, it’s easy to understand that many Texas doctors are likely left not understanding what might await them from a legal perspective should they be treating a patient who fits within the medical exemption in Texas.
“Each of those terms, you could have a lot of different experts weigh in on what they mean,” Seema Mohapatra, a professor at the Southern Methodist University Dedman School of Law, told the Observer. “For a serious medical situation, you don't want to have to wonder if your definition of any of those words will or will not meet someone else’s understanding of those words in a court of law.”
The events of the past week fairly suggest that just because a physician has used their reasonable judgment to decide a patient is in serious risk of substantial impairment of a major bodily function, there’s nothing in the law preventing someone else, anyone else, from disagreeing with that judgment and bringing legal action against the doctor.
“If Kate [Cox] can’t get an abortion in Texas, who can? Kate’s case is proof that exceptions don’t work, and it’s dangerous to be pregnant in any state with an abortion ban,” said Molly Duane, senior staff attorney at the Center for Reproductive Rights n a statement; “... but in the meantime, doctors still don’t know what the exception means, and the Texas Medical Board remains silent. If the highest court in Texas can’t figure out what this law means, I’m not sure how a doctor could. Meanwhile, the lives of Texans hang in the balance.”
On Thursday, Dec. 7, hours after a state judge cleared the way for Cox to have an abortion in Texas, Paxton issued a statement condemning the ruling and threatening felony prosecution against any doctor or hospital involved should Cox move forward with the abortion. What had seemed like a clear-cut victory earlier in the day was again murky. It seems the only thing that’s for certain here is that things are quite uncertain.
“I think everything that has happened in the Kate Cox case, including the Supreme Court opinion, is going to add to the confusion," Mohapatra said. “Even though the court hopes the opinion provides some clarity, I think there’s still a lot of questions, especially because its not clear how any of this intersects with all of Texas’ abortion laws, including SB 8, the ‘bounty hunter law.’” A provision of the law permits virtually anyone to file a lawsuit for $10,000 against anyone who performs abortions or otherwise aids in providing them to women more than six weeks pregnant.
The SMU professor also noted that the difference between an elective abortion and one that's medically necessary has been lost in the mix of all the legislation and court cases. But that's not the only unintended consequence of Texas' move to outlaw abortions.
"Right now the doctors don't know if they can provide that procedure without being subject to felony conviction, hundreds of thousands of dollars in fines and getting their license taken away without consulting the courts, " Mohapatra said. "If you're making a calculus of what your life is going to look like by practicing medicine in this area, I do think that will have an effect on recruiting doctors to come here as well."
