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Texas abortion ruling leaves legal, health care experts with more questions than answers

Protesters carrying signs advocating for reproductive rights stand outside of the Texas Capitol during daytime.
Patricia Lim
Hundreds of demonstrators rally at the State Capitol after the Supreme Court’s drafted opinion to overturn Roe v. Wade is leaked in May 2022.

In the span of a week Dallas resident Kate Cox was granted and then prevented from a temporary restraining order to have an emergency abortion before leaving Texas to terminate her nonviable pregnancy.

Court watchers hoped her Texas Supreme Court case, Cox v. Texas, would help add clarity to a law critics say is overly confusing and prevents doctors from making the right medical decisions.

But those critics now say what could have been a blueprint for future abortion-related cases in Texas instead added more confusion.

“On the one hand, this is a decision that has been left by the legislature to medical professionals,” said Joanna Grossman, a law professor at Southern Methodist University’s Dedman School of Law. “And on the other hand, they vacated it and said it doesn't apply here.”

The temporary restraining order — or TRO — granted to Cox on Nov. 7 by a Travis County District Judge would have allowed her to terminate her pregnancy within 14 days.

Had Cox been granted the TRO for an emergency abortion, Grossman said the case would have been an example for how individuals can seek an abortion, what to request from the court and how to get relief.

But the court’s ruling makes it clear that Cox’s request for an emergency abortion was not a good template in the eyes of the Supreme Court, she said.

Cox filed the lawsuit on Nov. 5 after she and her husband learned her fetus had full trisomy 18, a chromosomal abnormality that posed a risk to her health and future fertility, according to the suit.

Shortly after the district court’s ruling on Nov. 7, Attorney General Ken Paxton issued a statement that said the temporary restraining order would not shield medical professionals from civil or criminal liability for violating Texas abortion laws.

Texas made abortion a felony punishable by up to life in prison with few medical exceptions in August 2022 following the U.S. Supreme Court’s overturn of Roe v. Wade in June 2022.

The medical exceptions are exclusive to a doctor’s determination of whether a pregnancy is life threatening, and an abortion is necessary to save the pregnant person’s life or prevent impairment of a major bodily function.

But even though the law gives medical exceptions at the discretion of doctors, Texas’ abortion law has put some Texas doctors on edge. The penalties for doctors who perform an abortion are steep. Doctors who violate Texas law could face steep fines, lawsuits and risk the revocation or suspension of their medical license.

Civil rights attorney Austin Kaplan with Kaplan Law Firm — a co-counsel on the Cox case along with the Center for Reproductive Rights — said the case is another example of doctors not knowing when they can act within the medical exception.

“The Cox case was a case where doctors thought it was appropriate to act within the medical exception but were concerned that, perhaps, the state would take a different position,” he said. “And [the state] did once we filed the lawsuit.”

Court filings in the Cox case said her doctor had a “good faith belief” the woman had a life-threatening physical condition. But in its opinion last week, the Supreme Court said the law requires doctors to follow an objective standard and requires more than “a doctor’s mere subjective belief.”

However, the Texas Supreme Court reiterated that doctors can use “reasonable medical judgement” to decide if a pregnant person has a severe condition and that Texas law would not prohibit that abortion.

“A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion,” the court said in its opinion.

Grossman said the opinion seemingly contradicted itself.

“In the same order which they said, ‘Courts can’t decide whether the medical exception is satisfied,’ we’re determining that it isn’t satisfied in this particular case,” she said.

After the Texas Supreme Court halted the TRO, Cox left the state to get her time-sensitive abortion.

Kaplan said the ruling in the Cox case indicates that, as the law stands now, a pregnant person must be on death’s door to qualify for the medical exception.

"Health care professionals have a foundational, ethical obligation to treat their patients,” he said. “And here, I think that we have a challenge, they’re challenged to follow the standard of care and treat their patients but also follow the law.”

The lack of legal clarity paired with the uncertainty within the medical community also makes it difficult for reproductive rights organizations to provide resources to women.

Marsha Jones, executive director of The Afiya Center in Dallas, said the organization works to connect Black women with resources when they need an emergency abortion. Without clarity in the law for emergency abortion cases, the center has to spend more to financially assist women and their families.

“We typically are working with people who come to the table with zero,” she said. “Whenever you are really working with folks who are already on the margin, any time a hiccup comes, it’s going to make it more complicated.”

Black women are three times more likely to die from a pregnancy-related cause than white women, according to the Centers for Disease Control and Prevention.

Jones said involving Black women in the conversation around abortion access is important because rulings like the Cox case have even greater impact for them.

“Even last week it was like, ‘OK, maybe there is light at the end of the tunnel.’ And just like that within 48 hours it was lost just that quickly,” she said. “So the fight to find clarity in these laws is there.”

One case that could provide that clarity is Zurawski v. Texas, filed by the Center for Reproductive Rights on behalf of five Texas women denied abortion care and two Texas obstetrician-gynecologists to clarify the scope of the state’s “medical emergency” exception.

The Texas Supreme Court is set to give an opinion on the case in the spring, although the court’s ruling in Cox may be a preview of the opinion in Zurawski, Grossman said.

“I would say something's got to give, but the reality is what's going to give is just women's safety,” she said. “At the end of the day, you're just going to have doctors less and less willing, they're already mostly unwilling, but less and less willing to provide emergency abortions. So, what does that mean? It means, some women are going to die.”

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Copyright 2023 KERA. To see more, visit KERA.

Megan Cardona
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