December 14, 2023

Kate Cox

“The Texas Supreme Court on Monday overturned a lower court's ruling that would have allowed a pregnant woman to get an emergency abortion under the medical exception for the state's near-total abortion ban… [Kate] Cox's fetus was diagnosed on Nov. 27 with trisomy 18, a genetic abnormality that usually results in miscarriage, stillbirth or death soon after birth…

“[Attorney General Ken] Paxton had urged the Texas Supreme Court to quickly step in after District Court Judge Maya Guerra Gamble at a hearing in Austin last Thursday issued a temporary restraining order allowing Cox to have an abortion… Paxton warned in a letter sent shortly after Gamble issued the order that it did not shield doctors, hospitals or anyone else from prosecution or potential civil liability for violating Texas' abortion laws…

“The high court, whose nine justices are all Republicans, said in its unsigned opinion that a ‘good faith belief’ by Damla Karsan, a doctor who sought to perform the abortion and sued alongside Cox, that the procedure was medically necessary was not enough to qualify for the state's exception. Instead, the court said, Karsan would need to determine in her ‘reasonable medical judgment’ that Cox had a ‘life-threatening condition’ and that an abortion was necessary to prevent her death or impairment of a major bodily function.” Reuters

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From the Left

The left criticizes the Texas Supreme Court’s decision along with Texas’s abortion law.

“The scenario that Cox and her doctor are trying to avoid is one where her uterus literally tears itself open along her C-section scar during contractions. It is a not-uncommon complication in pregnancies where a woman tries to give vaginal birth after a previous C-section, which can be even more likely if multiple C-sections have previously occurred. If not swiftly treated, it can lead to catastrophic blood loss and force doctors to perform a hysterectomy to save the woman’s life. If that does not count as ‘risk of death’ or ‘substantial impairment,’ nothing does…

“If Texas’s elected officials had their way, Cox and her family would have spent the next 20 or so weeks living in abject terror. Her doomed pregnancy would have felt like a time bomb strapped around her torso…

“This is a woman who’d hoped to welcome a new child into the world, only to find out that there would be no baby showers, no crib to build, or nursery to paint. Instead, she’s been left to wonder in dread if the next ache or pain or the next muscle spasm was the one that could end in tragedy. And at every step of the way, the state of Texas threatened to jail anyone who tried to help her.”

Matt Ford, New Republic

“Karsan was quite clear that it was her reasonable medical judgment that Cox must receive an abortion to save her life or to prevent other health consequences described in Texas’s abortion law. She simply didn’t use the magic words ‘reasonable medical judgment.’ Apparently that’s sufficient reason to deny Cox an abortion in Texas…

No doctor will feel safe performing an abortion under these conditions. The state’s top law enforcement officer threatens them with prison and financial ruin. The state Supreme Court sits on cases for days before determining whether a patient, who may need an abortion immediately to save their life, may actually receive that care. And then the court will deny relief because, it claims, the patient’s doctor failed to use the right magical words.”

Ian Millhiser, Vox

“The goal of the new [abortion] bans is primarily to protect fetal life. Exceptions appear in virtually every law, but their purpose is more to deter patients viewed as undeserving — unless you can prove your imminent demise, for example — not to safeguard women’s health…

“Cox’s lawsuit is far from the only attempt to clarify or challenge abortion-ban exceptions. A plaintiff in Kentucky has filed a class action seeking permission for an abortion. Lawsuits in Texas, Tennessee and Idaho argue that if state exceptions cannot be more broadly interpreted, then the laws themselves are unconstitutional. In some states, courts have already weighed in on the constitutionality of specific exceptions, with more cases likely to follow…

“The same message emerges from these cases, whether plaintiffs like Cox win or lose, and perhaps especially if they fail. The exceptions Dobbs brought into effect do not work the way many Americans might have guessed, and may be designed not to work for patients at all. When the state’s interest in fetal life clashes with real health threats faced by women, patients will always find themselves on the losing side.”

Mary Ziegler, Los Angeles Times

From the Right

The right supports the Texas Supreme Court’s decision, arguing that it was legally correct.

The right supports the Texas Supreme Court’s decision, arguing that it was legally correct.

“Texas law allows abortions when the mother ‘has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.’ It does not allow abortions based on major fetal abnormalities. The doctor who joined Cox’s lawsuit believed that she should be able to have an abortion, but would not say that in her reasonable medical judgment one was needed to save her life

“The court was thus not given adequate evidence to conclude that an abortion would qualify for the medical exemption, but it left open the possibility that a doctor actually giving her a full examination might come to a different, reasonable medical judgment…

“The court also explained that the relevant judgment is a medical rather than a legal one: A doctor examining Cox would have been able to abort the baby without getting any advance approval from a court if she thought Cox’s life was threatened. If the doctor’s judgment was reasonable and genuine, the law would protect it… The court is obviously correct in its reading of Texas law. The law, in our judgment, is also right in thinking that even human lives with limited prospects should not be deliberately taken.”

The Editors, National Review

Trisonomy 18 (or Edwards Syndrome) is not always a fatal diagnosis. It's a troubling one that can result in pregnancy complications, birth defects, and a stillborn birth. But trying to paint it solely as destructive to the child and the mother is wrong. How do we know? Because families have chosen to ignore a diagnosis or a warning and have allowed their child to go to full term. Former Senator Rick Santorum and his wife Karen made this choice in 2008… [Their daughter] Bella just celebrated her 15th birthday…

“The knee-jerk response is that the mother or the child will not thrive if they have stark medical or cognitive conditions. In a culture that values rights above all else, even another's life, many in the medical profession immediately opt for abortion… Here is the conversation that needs to be had: Why do we wish to discard children, especially potentially special-needs or health-challenged children, rather than do all we can to help them survive and thrive, no matter how long that might be?”

Jennifer Oliver O'Connell, RedState

Many also note, “Like all complicated pregnancies, Cox's is unique. Some women can carry trisomy 18 pregnancies to term with little physical risk, and others cannot. Is this to say the state Supreme Court got it wrong and that Cox is in the latter category? Not only am I not a doctor, but I'm also not a lawyer, so, of course, I won't make that judgment…

“Cox has reportedly left the state to get an abortion elsewhere, bringing a sad situation to a sad end. But other women, and other men who simply can't decide which side of the debate they fall on, are listening. Women are listening when crass ‘pro-lifers’ accuse Cox of callously wishing to ‘kill’ her baby… Women are listening when these same advocates ignore Cox's concern about her physical safety, and worse, when they write off ‘uterine rupture’ and ‘hysterectomy’ as minor inconveniences.”

Tiana Lowe Doescher, Washington Examiner

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