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.