Bioethics Forum Essay
Texas Supreme Court Offers Roadmap for Legal Abortion
A recent Texas Supreme Court decision with implications for post-Dobbs jurisprudence on abortion seems to have been a victory for those who oppose the practice. It was widely read as upholding Texas’s very strict anti-abortion legislation. I suggest another possible reading of that decision.
The case focused on Kate Cox, a 31-year-old mother of two. She sought an abortion after learning that her fetus had multiple congenital anomalies, and she developed medical complications that could have made future pregnancies impossible. This month, a Texas court granted her request for a temporary restraining order on enforcement of Texas’s abortion bans, thus permitting her to have an abortion. The Texas Supreme Court overturned the lower court’s decision, and Cox then left Texas to seek health care elsewhere.
First, some facts. Kate and her husband, Justin Cox, always wanted lots of children. They have two now. In August, they learned that she was pregnant with a third. Sadly, prenatal testing showed that the fetus had multiple malformations, including problems with its heart, spine, brain, and limbs. A diagnosis of Trisomy 18 was confirmed. Kate’s doctor told her that continuing the pregnancy would jeopardize her health and make future pregnancies riskier and recommended that she terminate her pregnancy to preserve her own health and ability to have more children.
After much discussion with her husband and her family, Kate decided that terminating this pregnancy would be the right decision for her and her family. In her own words: “I do not want to put my body through the risks of continuing this pregnancy. 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.”
Her case highlights some of the bizarreness of the current hyper-polarized world of abortion politics. Kate’s fetus would likely not survive. Kate passionately wants to have more children. Continuing the pregnancy would have decreased the chances of her having healthy pregnancies in the future. Terminating the pregnancy, by contrast, was the more pro-life strategy. Yet, in the name of an ideology that is supposedly pro-life, Texas Attorney General Ken Paxton sought to force Kate to continue a pregnancy that would not only have put her health at risk but would also have decreased the likelihood that she could have healthy children in the future.
Still, this case, and another like it that is before the Texas Supreme Court, are forcing Texas judges to do their job and clarify the implications of the thoroughly ambiguous law that is now state policy. That law says that abortion is permissible when, “in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed.”
It is unclear how serious a health threat must be for an abortion to be permissible under that exemption. The Coxes’ original petition for a restraining order noted some of the many ambiguities. “Nowhere in the code does Texas law define any of the following distinctions: ’risk’ versus ’serious risk’; ‘insubstantial impairment’ versus ‘substantial impairment’; or ‘minor bodily function’ versus ‘major bodily function.’ Nor does Texas law define what it means to have “a serious risk of a substantial impairment” or “a substantial impairment of a major bodily function.”
A lower court found that, if Kate continued the pregnancy, it would create a “serious risk” to “her life, health, and fertility.” The court cited medical testimony stating that, “If she is forced to continue this pregnancy, Ms. Cox is at a particularly high risk for gestational hypertension, gestational diabetes, fetal macrosomia, post-operative infections, anesthesia complications, uterine rupture and hysterectomy due to her two prior c-sections and underlying health conditions. Undergoing a third c-section would make subsequent pregnancies higher risk and make it less likely that Ms. Cox would be able to carry another child in the future.” An amicus brief from the American College of Obstetrics and Gynecology and the Society of Maternal and Fetal Medicine supported these claims. Based on these findings, the lower court issued an order that protected the Coxes and their doctor from prosecution under the abortion-banning statute.
A few days later, the Texas Supreme Court reversed that ruling.
The Supreme Court decision did two things. First, as widely noted, it overturned the lower court decision that would have protected the Coxes and their physician from prosecution under the abortion-banning law. Second, and more interesting, it proposed a set of criteria that could be read as a roadmap, endorsed by the highest court in the state, for the type of argument that would be necessary for a doctor to legally provide an abortion.
A few things have become clear from the decision. First, in Texas, a fetal condition by itself, no matter how severe, is not enough to justify an abortion. Texas Attorney General Ken Paxton noted that the law contains no exceptions to the “for unborn children with fatal conditions who are unlikely to survive long after birth.”
Instead, the only justification for an abortion is that continuing a pregnancy creates a risk to the health of the pregnant woman. The key question now is whether the determination of risk should be made by doctors, lawyers, or legislators. The Supreme Court decision was clear. Only doctors should make such determinations. The Supreme Court wrote, “A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function.”
The Supreme Court was also clear that the risk of harm need not be imminent. The decision stated, “The exception does not cover . . . only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day.”
In short, the Supreme Court decision clearly empowers physicians to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient, without deferring to a judge. One way to read this decision is as the Court’s attempt to keep each case from coming to court.
The case can and should be read as a loss for Kate Cox and her physicians. But there is a clear silver lining. The Texas Supreme Court decision can be interpreted as both empowering physicians – by saying that only they and not lawyers can decide whether a woman’s health is seriously jeopardized — and coaching them on how to provide care for patients in ways that will withstand legal scrutiny. It invites doctors to use their “reasonable medical judgments” and to be offering legal protection if they do.
This opinion, somewhat surprisingly, aligns closely with the work of pro-choice lawyers who are trying to protect the integrity of the medical profession and protect the right of women to receive medically appropriate reproductive health care. Katie Watson, for example, offered physicians the following advice, “Providing standard medical care to people whose health or life is threatened by their pregnancy is neither civil disobedience nor covert lawbreaking; it isn’t even resistance. It is wise interpretation of existing law as applied to specific facts, fidelity to clinicians’ fiduciary duty to stay focused on patients in medical need, and acceptance that choices of historic consequence rarely come with zero risk.”
It is time for Texas doctors, hospitals, and professional societies to play offense rather than defense and to exercise their professional judgment as the Supreme Court is encouraging them to do.
John D. Lantos, MD, is a bioethicist and general pediatrician in New York City and a Hastings Center fellow. He blogs about bioethics and health policy at johnlantos.com/blog.
Physicians should not feel safe relying on their “reasonable medical judgment,” explicitly since the Texas Supreme Court stated explicitly that physicians can disagree about that issue, opening the door for second guessing by prosecutors and juries.
Thanks, Br. Clayton, for that comment. I read that comment, in context, a little differently. It is in a paragraph in which the court explains how, even though reasonable medical judgment isn’t perfect, and even though doctors can disagree, they are still going to respect and defer to doctors who make such judgments. They explicitly say that the anticipated harm to a woman needed be imminent, that doctors don’t need a second opinion from another doctor, and that they do not need permission from a judge or court. They write, “Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment.” For interested readers, who want context, their full explanation is as follows:
“The (Texas anti-abortion) statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.” The exception does not hold a doctor to medical certainty, nor does it cover only adverse results…The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.
A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed. Nothing in this opinion prevents a physician from acting if, in that physician’s reasonable medical judgment, she determines that Ms. Cox has a “life-threatening physical condition” that places her “at risk of death” or “poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
I read this as the court rebuking AG Ken Paxton, who tried to explain, in his letter to doctors and hospitals, why, in his (lawerly) opinion, Ms. Cox was not facing a true emergency. It is not permission for doctors to use the medical exemption casually. But, given the very restrictive law that the court must interpret, and assuming that the court does not want to be asked in every potential life-threatening scenario to decide whether the facts of the case are enough, this seems to me to be a decision that empowers doctors, even, as you note, without completely eliminating all legal risk
The plaintiffs (represented by the Center for Reproductive Rights) specifically sought clarification of the law – but whether what the Supreme Court offered fulfilled this request is debatable. As Dr. Lantos notes, they did emphasize that it is clinical, not judicial, judgement that determines if a pregnancy poses a threat to the pregnant person’s life or major bodily function, saying: “The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.”
But as Dr. Clayton points out in a comment here, this should not offer much sense of security to physicians. Notably, the court went on to undermine the reasonable medical judgement of Ms. Cox’s physician and the language she used to justify her recommended medical care. Professor Watson may be right that providing abortions according to evidence-based standards of care in pregnancies a physician deems to put the pregnant person’s life or major bodily function at risk is not civil disobedience. But whether courts and juries will agree that it is not breaking the law if those physicians were to be prosecuted under TX SB8 (or if prosecutors will decide to charge them at all) remains to be seen. Rather than clarifying the law, as the plaintiffs asked, the TX Supreme Court seems to be saying: you’ll have to try it and then see.
Thanks, Professor Lamphier. I completely agree that the Supreme Court is saying that they cannot prospectively define the exact criteria for deciding which abortions are permissible in ways that precisely define the protected legal zone for abortion. All they can do is tell doctors what they will be looking for when reviewing future cases. Still, I read that as an attempt to partially clarify existing ambiguities of the law.
They clarify that predicted harm to the pregnant women needed be imminent, that doctors don’t need a second opinion, that doctors who are their exercising reasonable medical judgment do not need a court order, and that although different doctors might come to different conclusions, each doctor is nevertheless held to the standard of “reasonable medical judgment.”
By upholding the law but clarifying the exemptions, the Court is walking the same fine line that Courts in the Netherlands walked when euthanasia was made “permissible” but still “illegal.
In The Netherlands, euthanasia remains a crime. Doctors who perform it can go to jail. But if the doctors follow guidelines promulgated by the Royal Dutch Medical Association, courts exonerate them. Still, the courts reserve the right to review each case and find doctors guilty. Doctors remain at risk of going to jail. The Dutch courts have thus carved-out a narrow exception to the law the generally prohibits euthanasia. The legal standard that emerged is described by Gevers: “A delicate balance has been achieved between statutory law that prohibits euthanasia, case law that stipulates conditions for non-prosecution, and controlled acceptance in practice.”
Dutch courts recognized that “the specific nature of the doctor-patient relationship obliges a doctor to take into account all that is in his sphere of knowledge and expertise to guide his decisions as the patient’s case develops.” The Texas Supreme Court seems to be trying to do the same.
Another partially analogous situation exists with regard to decisions to unilaterally forgo life sustaining treatment in the United States today. As Pope notes, there is no “safe harbor” for such decisions. But Rhode, writing in the AMA Journal of Ethics, observes that “judges are reluctant and typically unwilling to punish physicians who acted in accordance with the appropriate established standard of care.”
Post-Dobbs abortion jurisprudence is evolving. Clearly, in some states, the Roe framework prevails, and women and doctors have a clearly protected right to terminate pregnancies. In other states, the approach will be different, from complete bans to more ambiguous frameworks. Texas is at the center. It may end up looking more like The Netherlands than like New York.
This piece strikes me as a reader, a pediatric nurse, and a soon-to-be provider. For one, there is an extreme pro-life view, though there does not seem to be regard for a child’s quality of life post-delivery, nor is there a pro-life outlook for the birth-giving person’s health.
The judge explains that the woman needs to be in imminent harm that is based on the opinion of a singular doctor to determine as such. This, I find, to be inconsistent with a healthcare system that is trying to achieve a value-based and collaborative care approach. The issue with giving the physician the decision over abortion is that an individual’s opinion varies from that of another; therefore, someone can have a personally biased view on abortion that can potentially jeopardize the health of the birth-giving person. As seen in Kate’s case, there was a likelihood that the fetus would not survive delivery and could put Kate’s health in jeopardy, yet, there are still adamant feelings for the fetus to be delivered. It is also important to recognize that physicians’ experience varies on how they assess and approach care management for the pregnant person, and sometimes the standard of care is not standardized from one institution to another… take into account the high maternal mortality rate among Black women in America.
I considered that the law should be involved in this particular case, however, I believe that this should still be an autonomous decision given to the person bearing the child. Although the court explicitly states that the decision is in the hands of the provider, this seems to be a way for the court to become less involved in cases that may be similar in the future, similar to a cop-out. So, I don’t know if I would say this is much of a roadmap for legal abortion. I think it steers us in another direction that can make it potentially more challenging to receive a legal abortion. There should be a precedent set for these cases that incorporates the birth-giving person’s voice, such as that of a shared-making model.