AUSTIN, Texas — Kate Cox, whose fetus had a fatal condition, did not qualify for an abortion in Texas: Not after four emergency room visits, elevated vital signs, risks of a uterine rupture and with her ability to have more children in jeopardy.
The Texas Supreme Court’s rejection of the mother of two’s request for an exception under the state’s restrictive ban has laid bare the high threshold women in many states must meet to get the procedure: Pregnancy complications that pose life-threatening danger to the mother.
“These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice,” the court’s nine Republican justices said in their ruling late Monday.
The state’s Republican attorney general had for a week argued that Cox did not meet the standard for an exception, despite appeals from her attorneys that her health was deteriorating. Hours before the order came down, Cox’s attorney said she could no longer wait for the procedure and had already left Texas to get an abortion in another state.
The decision galled doctors and opponents who say it underscored how, even though such bans allow abortions to save a mother’s life, the laws are vague on how close to death a patient must be to get the procedure. Fourteen states have banned abortion at nearly all stages of pregnancy since the U.S. Supreme Court decision last year in Dobbs vs. Jackson Women’s Health, which upended the right to an abortion.
The outcome in Texas drew condemnation from the White House, which criticized Republican abortion policies and called them out of step. Public polling has shown that the majority of U.S. adults want abortion to be legal at least in the initial stages of pregnancy.
Vice President Kamala Harris said Tuesday that Cox’s plight is one everyone should be thinking and talking about.
“I think it is important that when we are talking about foundational freedoms in our country, that we speak out when such an injustice is happening that would deny an individual to be able to make such important decisions about her own body and her life,” Harris said.
Dr. Clayton Alfonso, an OB-GYN at Duke University, said that things “can go from being really OK to really bad really quickly” during pregnancy. He said that with so many nuances in medicine, it’s often difficult to know what will lead to a death.
“Things just don’t fit the strict legal guidelines of black and white,” Alfonso said.
Texas’ ban is one of the most restrictive in the U.S. and backers of the law say it worked as designed this week, even while acknowledging Cox’s tragic circumstances.
On Tuesday, however, there was no reaction from Republicans in Texas who championed the state’s ban. The offices of Republican Texas. Gov. Greg Abbott, the state’s GOP lieutenant governor and the House speaker did not return messages seeking comment.
States with bans in the U.S. have provisions to allow abortion to save the life of the woman. There’s a patchwork of policies for other exceptions, including for pregnancies caused by rape or incest. In the states with the most restrictive policies, abortion is generally allowed if doctors find it necessary to prevent the pregnant woman from irreversible impairment of a major bodily function — but not to protect her health in other ways, including mental health.
Texas Right to Life President John Seago, whose group opposes abortion and has helped push through some of the state’s restrictive laws, said they want doctors to “intervene immediately” if there is a life-threatening condition. But he said Cox’s lawsuit never demonstrated that was the case.
“When we look at this case, it is a very tragic situation of a child that has a negative diagnosis, but in Texas law we have a very strong position that we are going to give every child in Texas a chance at life,” Seago said.
Nationally, about 700 women die each year because of pregnancy or delivery complications. Doctors worry that delaying an abortion could mean a slightly riskier procedure, especially when the pregnancy is further along. While they stress that abortion is safe at all points of pregnancy — with an overall complication rate of 2% — the procedure does carry additional risks as the pregnancy progresses.
Doctors and researchers say abortion delays have grown more common since Roe v. Wade was overturned. One big reason for delays is the increasing need to seek care out of state.
Some state lawmakers took steps this year to clarify their laws. In Texas, for instance, they added a provision that offers doctors some legal protection when they end pregnancies in cases of premature rupture of membranes or ectopic pregnancies.
For Cox, tests confirmed late last month that the baby she was carrying had a condition called trisomy 18, an extra chromosome that made it likely the baby would die in utero or shortly after birth.
Dr. Andrea Henkel, a clinical assistant in the department of obstetrics and gynecology and a complex family planning subspecialist at Stanford Health Care in Palo Alto, California, said trisomy 18 is associated with an increased risk of gestational diabetes, preterm birth and cesarean birth. She said additional cesareans — Cox already has two children born by C-section — are inherently more risky, especially if Cox wants to have more children in the future.
“I think that that’s where I really struggle right now is when legislators get in the way of a patient making the best plan outside of knowing their specific goals and desires,” Henkel said.
