Texas doctors, women, and lawyers have been urging the state for nearly two years to provide clarification on the strict abortion bans. While lawmakers passed a bill this year that made some exceptions clearer, it did not help doctors determine whether they could legally perform an abortion for Kate Cox, a Dallas woman. Ms. Cox sought permission to end her pregnancy after discovering that her fetus had a fatal genetic condition. A district court judge deemed her eligible for a medical exception, but the Texas Supreme Court overturned the decision. Prior to the ruling, Ms. Cox traveled out of state for the procedure, like many other Texas women. This case illustrates the impact of abortion politics in Texas, where confusion and fear among doctors have effectively prevented nearly all abortions, even in cases of serious pregnancy complications.
Despite the fact that there have been no prosecutions or significant lawsuits against doctors or hospitals, the threat of legal action has been enough to deter abortions. The number of reported abortions in Texas has dropped significantly this year, with only 34 reported compared to over 50,000 in 2020. Molly Duane, a lawyer with the Center for Reproductive Rights, expressed frustration at the lack of responsibility taken by the court and medical board, while doctors continue to live in fear and patients’ lives are at stake.
The Texas Alliance for Life, an anti-abortion group, claimed that the medical exceptions to the bans were working, as dozens of abortions had been performed without prosecution or discipline. The Texas Supreme Court ruled in favor of the state’s attorney general, stating that exceptions to the bans were only legal when the health or life of the mother was seriously threatened. However, doctors argued that the lack of clarity in the law made them reluctant to perform necessary abortions to preserve women’s health. The court suggested that the Texas Medical Board could provide guidelines if doctors remained confused.
The ruling on Ms. Cox’s case offered little solace to abortion rights advocates, who are awaiting a separate ruling in the Zurawski v. Texas case. This case aims to address the confusion about medical exceptions and allow doctors to perform medically necessary abortions without fear of punishment. The majority of reported abortions in Texas this year were medication abortions, while only two were surgical procedures like the one Ms. Cox sought.
Doctors and legal experts argue that the lack of clarity in the law has deterred doctors from performing necessary abortions. They believe that waiting until a woman’s health deteriorates before performing an abortion is dangerous. Concerns about legal action, particularly among hospital administrators, have contributed to the decrease in abortions performed. The state argues that doctors have misinterpreted the law, leading to confusion and substandard care.
Ms. Cox’s case highlighted another concern for doctors – the quickness with which Attorney General Ken Paxton threatened Dr. Karsan with prosecution. The court’s ruling seemed to support Paxton’s actions, raising concerns about intimidation campaigns against doctors. Doctors have been seeking guidance from the Texas Medical Board since last year, but no action has been taken. The lack of clarity in the Cox ruling leaves doctors uncertain, and the president of the Texas Medical Association believes legislative clarity is necessary to protect physicians.
The Texas law states that doctors must rely on “reasonable medical judgment,” which can be easily challenged by presenting testimony from another “reasonable” doctor. Lawyers for the Center for Reproductive Rights have advocated for a “good faith” standard that would make it more difficult to legally challenge a doctor’s decision. However, the current standard allows for easier challenges to abortion decisions.