Many people were shocked when the Texas Supreme Court intervened recently to stop Kate Cox from getting an abortion in the state — an abortion needed to protect her health and future fertility after her fetus was diagnosed with a severe fetal anomaly in her second trimester. She ultimately traveled out of state to get the abortion she needed.
As someone who has been studying state abortion definitions and exceptions in the wake of Roe v. Wade’s demise, I was not shocked.
The Texas anti-abortion law that went into effect shortly after Roe was overturned was drafted to ban the care needed by Ms. Cox and other women with similar cases: It does not include an exception for fetal anomalies, unlike laws in a handful of other states. The law does have a narrow exception allowing abortions in some medical emergencies, but it is written in such a vague and confusing way that it is difficult for even experts on this topic, like myself, to parse.
What is clear to me is that the Texas Supreme Court would have needed to make a broad and compassionate interpretation of the law for Ms. Cox to meet the high bar of that exception. Instead, the court interpreted the law narrowly — which is exactly what the state lawmakers who passed the legislation were hoping for. And the results have been tragic.
Since Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe,numerous women around the country have shared Ms. Cox’s experience. They, too, have been forced to travel for abortion care in the middle of a medical crisis, wait until their health deteriorated toward death or birth a child who died in their arms. Ms. Cox’s story is unique only because she had the remarkable fortitude and bravery to sue her state while she was still pregnant, instead of after her medical emergency concluded, as many other plaintiffs have done.
The exception in Texas’s abortion ban permits pregnant Texans to receive an abortion only if they are facing “a life-threatening physical condition,” such as one that “poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
This language contains a great deal of ambiguity. What constitutes a “serious risk” or a “substantial impairment” or a “major bodily function”? Does an 80 percent chance of losing a uterus or fallopian tube qualify? What about a 30 percent chance of a cardiac event that could be fatal? These questions are critical but confounding for the health care providers who must look to the law, not medicine, to answer them.
The penalties for abortion providers who violate the state’s law include a decades-long prison sentence, a $100,000 fine and the loss of a medical license. When one misinterpretation of the law could mean the loss of your vocation and freedom, it’s no wonder that the legislation has had a chilling effect on doctors in the state providing any abortions at all.
Texas’s choice not to include a fetal anomaly exception in its abortion ban was in keeping with what many in the anti-abortion movement believe: that the proper response to all fetal anomaly diagnoses is perinatal hospice. In response to Kate Cox’s case, Texas Right to Life said: “Every child is uniquely precious and should continue to be protected in law no matter how long or short the baby’s life may be. The compassionate approach to these heartbreaking diagnoses is perinatal palliative care, which honors, rather than ends, the child’s life.” The fetus’s condition is therefore irrelevant under Texas law, unless the anomaly increases risks for the pregnant patient.
As for Ms. Cox’s personal medical risks, they relate primarily to her two prior cesarean sections. Continuing her pregnancy would have put her in an impossible bind: Either she would have had a third cesarean (major abdominal surgery that could threaten her future fertility), or she would have attempted a vaginal birth, which, post-C-section, carries a low but significant risk of catastrophic uterine rupture. She also had an elevated risk of developing gestational hypertension and diabetes. In my view, these risks are “serious” — to quote the Texas law — particularly to birth a dying child. But they are also not uncommon: If Texas allowed these risks to a woman’s health to satisfy the exception in its abortion law, the exception would be available to anyone with an unwanted pregnancy that is also medically complicated.
And therein lies the problem: There is no nonarbitrary way to identify medically necessary abortions. Anti-abortion legislators and activists often try to place abortions into two categories: “therapeutic” abortions, meaning those that are medically indicated, and “elective” abortions, meaning those chosen to avoid having a child. The Dobbs decision itself engaged in this thinking, finding that Mississippi had a legitimate interest in regulating abortion “for nontherapeutic or elective reasons.”
What this categorization misses is that pregnancy is inherently risky. This is especially true in the United States, which compared to other high-income countries has by far the highest (and worsening) maternal mortality. Every person who carries a pregnancy to term will endure months of significant, and occasionally debilitating, physical side effects and medical risks that include the possibility of death. Given that abortion is many times safer than childbirth, abortions help people avoid medical risks.
This issue extends beyond exceptions for medical emergencies. Take fetal anomaly exceptions, which are typically reserved for “lethal” anomalies in the states that have them. The boundaries of lethality have created deep confusion, in large part because only a tiny number of conditions are 100 percent fatal in infancy. Even a small percentage of babies born with Trisomy 18, the condition Ms. Cox’s fetus was diagnosed with — which is often considered “incompatible with life” — can survive to 10 years old with aggressive treatment. As a result, some even outside the anti-abortion movement have questioned whether it deserves the moniker “lethal.”
But if Trisomy 18 doesn’t count as “lethal,” hardly any fetal diagnosis would. The prognosis of most severe fetal anomalies is complex, involving varying risks of stillbirth and infant mortality, coupled with significant risk of severe disability in survivors, a subset of whom will die in childhood. There is no categorical way to distinguish the diagnoses that are worthy of exemption in anti-abortion laws and those that are not.
The Dobbs decision greenlit a patchwork of abortion bans that are inherently standardless and functionally unworkable, forcing judges with no medical background into the business of making medical judgments. The boundaries between fatal and nonfatal, therapeutic and elective, and even abortion and miscarriage are blurry for medical professionals; they are virtually impossible to decipher for the lawyers and judges who have to navigate them.
This problem cannot be solved with clearer language; it is a problem intrinsic to the Dobbs ruling that allowed the complicated experience of pregnancy into the courtroom. The only way forward is to protect abortion, no matter the reason — to refuse to play the game of “good abortion” vs. “bad abortion.” What happened to Kate Cox, and so many patients like her, is a symptom of a broken law that cannot be fixed.
Greer Donley is an associate dean and associate professor at the University of Pittsburgh School of Law. Her research has surveyed a variety of post-Dobbs legal issues, including the workability of medical exceptions to abortion regulations.
Photograph by Fairfax Media Archives/Getty Images
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