Opinion: This Texas woman is exposing a chilling truth about abortion law

By Mary Ziegler, CNN.com, December 11, 2023.

In a court in Harris County, Texas, something remarkable happened this week: A woman and her husband asked a judge for an emergency order granting her permission to end a pregnancy.

Kate Cox, a 31-year-old mother of two, had learned that the child she was carrying had full trisomy 18, a rare genetic condition that is almost always fatal. Her physicians have warned that continuing the pregnancy could put her at risk for life-threatening complications. Cox, who wants to have a third child, might also lose her ability to do so if forced to carry the pregnancy to term.

The judge granted Cox’s request on Thursday, but the state will almost certainly appeal to what is a Texas Supreme Court with nine Republican members. Late Friday, the Texas Supreme Court temporarily blocked the lower court’s ruling. But regardless of what happens next, Cox’s suit will shape the abortion debate going forward — not least because it is historic.

Cox is part of a new generation of plaintiffs telling heartbreaking stories about their experiences under criminal laws in places such as TexasIdaho, Tennessee and Oklahoma — plaintiffs willing to speak out in a climate where support for abortion is at a record high, according to a WSJ-NORC poll, and some of the stigma surrounding abortion seems less intense. But given the popularity of abortion rights  — and the obvious tragedy faced by women like Cox — why are states like Texas fighting so hard to defend their narrow exceptions?

The answer is that Cox’s case and others like it expose how unworkable abortion exceptions are under current law in states with virtual bans, especially when they are attached to harsh penalties like life in prison. Conceding that a woman like Cox is right could threaten to send much else about criminal abortion laws toppling down.

It is worth remarking on how rare Cox’s suit is. Before Roe v. Wade, patients and doctors both questioned the constitutionality of abortion laws. In some cases, pregnant patients were named plaintiffs: This was the case for Norma McCorvey, the “Roe” in Roe v. Wade, and Sandra Cano, the plaintiff in Roe’s companion case, Doe v. Bolton. These suits adjudicated whether a law was permissible, but often did not change what happened to a particular pregnant plaintiff (McCorvey, for example, famously carried what some called the “Roe baby” to term). After Roe, minors acting without parental consent or notification sought court-ordered abortion under what were called “judicial bypass” laws, often also while maintaining anonymity.

Cox’s case is quite different. She is an adult, not a minor, and she has not concealed her identity. Her willingness to tell her story is no doubt due to her own strength and commitment, but our present political moment likely has something to do with it too. Poll after poll find strong, if not unprecedented, support for legal abortion, even in states where abortion bans are already in effect. Backlash to these bans — and to the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization — has made it easier for other women to describe their own experiences with criminal laws and to file suits of their own.

McCorvey and Cano used pseudonyms at a time when pursuing abortion rights might have come at great personal and political cost. Women like Cox and Amanda Zurawski, who is challenging the validity of Texas’s medical emergency exception to abortion, use their own names, and do so with the knowledge that most Americans support legal abortion — and all the more so in cases like theirs.

When states fight plaintiffs like Cox and Zurawski in court, it hardly helps Republicans already on the defensive about abortion. It is comparably easy to paint bans as heartless and extreme when the state shows no sympathy for women who stand to lose their fertility, health or lives.

Suits like Cox’s expose how hard it would be to devise a workable abortion exception. In theory, a functioning exception would advance the state’s interest in fetal life while offering a real opportunity for people in exceptional cases that the state deems deserving. But if a state requires harsh punishment — Texas, for example, authorizes life in prison for abortion — few doctors will be willing to gamble that they are interpreting the law correctly, even if an exception is relatively clear.

Most exceptions, it turns out, aren’t clear anyway, written not by physicians but by lawmakers who use the language of criminal law, and sometimes write more than one exception into various criminal abortion laws, as in Oklahoma. The broader and more compassionate a state makes an exception, the higher the odds that more plaintiffs like Cox will prevail, but that will require deference to patients and physicians that anti-abortion states focused on punishing abortion providers reject as a matter of principle.

Exceptions almost always leave out other tragic circumstances. Texas has a medical emergency exception, but dismisses a fatal fetal abnormality that could deprive Cox of the ability to have a third child as nothing different than what is experienced by “countless women who give birth every day.” The risk of death, the state says, is simply “not imminent” enough. Andy Beshear, the Democratic governor of Kentucky, just made anger about a similar provision in his state’s law a central message of his successful reelection campaign.

Republican lawmakers often seem to want it both ways on abortion. They define themselves as pro-life but insist on compassion for women, especially in the so-called hard cases like Cox’s.

But what is happening in Texas complicates that narrative. Texas purports to value fetal life and women’s health — but then denies that the unborn have rights when that strategy will help defeat a lawsuit brought by a prison employee forced to stay at her post who lost her pregnancy. Texas claims compassion for women but requires that their lives or a major bodily function be at imminent risk before a doctor can step in. And Texas claims to protect life by forcing a woman like Cox to carry a child who almost certainly won’t live while threatening her ability to have a child who will.

All of this is a reminder of the priorities of state abortion laws, which are not about the value of life in the womb, but about criminal punishment — and about crafting exceptions that will rarely, if ever, be used. Cox’s suit matters because it is historic, but also because of what it tells us. When the chips are down, given a choice between protecting women like Cox and criminalizing those who offer abortions, we know what states like Texas will choose every time.

Mary Ziegler (@maryrziegler) is the Martin Luther King Jr. Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.

 Image Credits: CNN

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