Kate Cox, a 20-weeks pregnant mother from Dallas, needed an abortion, and quickly, her lawsuit said. With a serious genetic diagnosis that made it unlikely her baby would survive, Cox became the first woman since Roe vs. Wade fell to sue Texas for permission to end her pregnancy.
After a whirlwind, week-long legal battle, the Texas Supreme Court decided it would not decide. Physicians, not judges, are the only ones who can determine when someone qualifies for an abortion under a medical exemption, according to the court’s opinion.
Simultaneously, the court ruled Cox’s doctor’s assessment — that she qualified because of a risk to her health and future fertility — was not enough. Cox was denied an abortion just hours after she left the state to access the procedure elsewhere.
The opinion punted the responsibility of interpreting the state’s three overlapping abortion bans to doctors. The state argued that’s where the issue has sat all along: not with the laws, but with medical providers who misunderstand those laws. Legal experts and medical associations said the decision gives little clarity as to how sick a Texan must be to access abortion care.
What impact this ruling will have on doctors and patients is yet to be seen, but the last two years offer some foreshadowing. Since Texas’ bans took hold, abortions have dropped to virtually none. Nationwide, abortions have slightly increased, while travel for abortions more than doubled.
Just about everything related to abortion is up in the air, from access to an abortion-inducing drug to the legality of traveling through certain counties on the way to appointments.
One thing is certain: Cox, who received her baby’s fatal diagnosis less than three weeks ago, is now the face of the movement to challenge abortion bans in Texas and across the country. The Center for Reproductive Rights, which filed Cox’s lawsuit, said Monday’s ruling means people like her will continue to find themselves in limbo between a doctor’s medical opinion and that doctor’s willingness to risk their license or jail time to act on it.
Ask Forgiveness, Not Permission
One of the questions anchoring the battle over Texas’ abortion laws is how pregnant someone must be in order to challenge the bans.
In Zurawski vs. Texas earlier this year, 20 Texas women sued the state alleging their abortions were delayed or denied because of vague wording in the laws’ medical exemption clauses. The state argued the women bringing the case didn’t have standing because they weren’t currently seeking abortions.
“Then the court would be saying that a patient needs to have blood or amniotic fluid dripping down their leg before they could come to court,” said Center for Reproductive Rights senior attorney Molly Duane.
If the plaintiffs in the Zurawski case didn’t have standing because of their pregnancy status, Cox appeared to fit the bill. She visited the emergency room three times for severe cramping and unidentifiable fluid leaks in her third pregnancy before filing the lawsuit. Doctors diagnosed her baby with full trisomy 18, a fatal condition in most cases that causes heart defects and malformations throughout the body.
“There were some ideas bouncing around during oral arguments that maybe the Texas statute wasn’t so problematic because there might be alternative mechanisms by which the statute can be challenged in particular cases,” said University of Houston Law Center professor Seth Chandler. “It’s pretty clear now, as a result of Monday’s decision, that those avenues don’t exist.”
In its opinion, the state Supreme Court said women who meet the exemption standards don’t need to seek a court order to get an abortion. Doctors have discretion to perform the procedure and the burden falls to the state or private citizens to enforce the ban through criminal or civil suits. It’s a precedent that requires doctors to ask forgiveness, not permission.
But a case that asks forgiveness — one where a doctor has performed an abortion and is then brought to court — could carry monumental consequences. A physician found guilty of violating the state bans faces up to life in prison, loss of their medical license or fines up to $100,000.
Texas has three bans on the books, each with different specifications. Senate Bill 8, known as the Texas Heartbeat act, allows private individuals to bring civil suits against anyone who performs or aids an abortion after six weeks gestation. The so-called “trigger ban” went into effect when the U.S. Supreme Court overturned Roe vs. Wade, making performing an abortion illegal. Then there’s the pre-Roe ban, which is still possibly in effect, that criminalizes performing or providing the means for an abortion.
“Imagine you’re an OB-GYN and you specialize in high-risk pregnancies. This is not a situation which you encounter once in your life. You may see several of these situations a year,” Chandler said. “Sooner or later, if you gamble and say, ‘Well, I think it’s reasonable,’ you’re going to face a substantial cumulative risk that a local elected prosecutor is going to disagree with you and make your life quite challenging.”
The Role of the Texas Medical Board
Amid the noise of the abortion debate, the Texas Medical Board remains noticeably quiet.
The state agency — made up of 12 physicians and seven public members, each appointed by the governor — is charged with regulating medical practice in Texas. It issues guidance on how state laws are applied in a doctor’s office or operating room.
“You can imagine the statute as the skeleton and the regulation as the flesh on the bone,” said Magda Schaler-Haynes, professor of health policy and management at Columbia University.
“The Texas statute spells out exceptions and the language for those exceptions requires clarification,” Schaler-Haynes said. “It is within the authority of the Texas Medical Board through regulation to provide that clarity.”
The state’s highest court prodded the board to do just that. In the footnotes of the Cox ruling, the court defined how the board might provide clarification, be it through giving hypothetical examples or identifying “red lines.” The Texas Medical Board provided similar clarification during the COVID-19 pandemic, something the opinion references.
“It wouldn’t be perfect,” University of Houston professor Seth Chandler said. “But, it would be a heck of a lot clearer for doctors if they had at least some guidance on the meaning of the term.”
The Texas Medical Board has declined to comment due to pending litigation.
Real-World Implications
Where do pregnant Texans fit into the abortion equation? Public health experts say it depends on what resources they have at their disposal.
Abortions plummeted after the state’s bans took effect, dropping from around 50,000 in 2021 to 26 in the first six months of 2023, according to Texas Health and Human Services Commission data.
When Cox left Monday, she joined tens of thousands of Americans traveling out of state to get abortions. Nationally, over 92,000 patients crossed state lines for abortions in the first six months of 2023, compared to 40,600 in the first half of 2020, the Guttmacher Institute found in a recent analysis.
The journey can be expensive. Fund Texas Choice, a group that helps Texans travel to out-of-state abortions, spends an average of $1,000 per client. The organization spent more than $560,000 on client travel between January and September.
Economic impacts are not equitable and are more likely to affect already marginalized populations, said Katelyn Jetelina, an epidemiologist and scientific consultant to the Centers for Disease Control and Prevention.
“We’re not even talking about individual level impacts we’re going to see with individual women,” Jetelina said. “It’s going to impact our community.”
The Cox ruling doesn’t change much for doctors, health experts said, other than cementing their responsibility in the legal process. A letter sent from Texas Attorney General Ken Paxton to the hospitals where Cox’s doctor practices signals that the state will use its power to influence how the laws are carried out.
The letter, sent before the state Supreme Court issued its opinion, threatened legal action if Cox’s doctor, OB-GYN Damla Karsan, went through with the abortion after the Travis County district court approved it.
“There may be an additional chilling effect,” said Kari White, executive and scientific director for Resound Research for Reproductive Health, a collective of social scientists and doctors studying abortion and contraceptive care. “That is a very different move than we have seen in the past.”
In an amicus brief filed in the Cox case, the American College of Obstetricians and Gynecologists echoed a similar sentiment, saying Paxton’s interventions in the suit “will reinforce the concerns of Texas clinicians,” that they’ll face severe consequences for making judgment calls in complex cases.
“The pervasive ‘climate of fear’ among the Texas medical community is certain to be made worse by this case and the state’s actions in opposing the abortion Ms. Cox needs,” the amicus brief says. “Perhaps that’s the point of the state’s conduct.”
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