5 things to know about the latest abortion case in Texas
On Monday, Texas' state Supreme Court issued an opinion with broad repercussions when it ruled against Kate Cox's petition to have a health-preserving abortion in her state. It did so even though Cox had already made the decision to leave Texas for an abortion because she felt she couldn't wait any longer.
There's a lot to unpack in that opinion and the other legal challenge to the three overlapping abortion bans in Texas. Here are five things to know about the case.
1. Who is Kate Cox and what happened to her?
Kate Cox, 31, lives in the Dallas area with her husband and two young kids. About 20 weeks into her third pregnancy, she learned her fetus has Trisomy 18, a genetic condition with slim to no chance of survival. She'd also suffered cramping and other symptoms, severe enough to send her to the emergency room multiple times in a two week period.
Cox believed she was a good candidate for the narrow exception to the three overlapping abortion bans in Texas. That exception says abortion is allowed when the mother's life is threatened or when a pregnancy "poses a serious risk of substantial impairment of a major bodily function."
Her lawyers and her doctor argued that her future fertility was at risk. Does it count as a "major bodily function"? Would Cox, her husband and her doctor be safe from enforcement of the serious penalties if she had the abortion? That's what the Center for Reproductive Rights asked the court when it filed an emergency petition on Cox's behalf, requesting the abortion bans' penalties be suspended for Cox, her husband, and her doctor, so she could have a legal abortion in Texas.
Although a district court judge granted the request, Texas Attorney General Ken Paxton immediately appealed it to the Texas Supreme Court. He also sent a warning letter, shared on social media, to the three hospitals where Cox might have had the procedure saying they would face penalties despite the lower court's permission. That was last Thursday. On Friday, the Texas Supreme court put a temporary hold on that ruling, pending review.
On Monday, Cox made the decision to leave the state to get the procedure. A few hours later, the Texas Supreme Court ruled against her and sided with Paxton.
2. Leaving Texas for an abortion is a legal option
Many who read the headlines that Kate Cox was fleeing the state to get an abortion thought that was against the law.
Texans can and do legally leave the state to get abortions, if they have the financial means. Many thousands of Texans drive hundreds of miles across the huge state or fly to states that allow abortions. Some Texas counties are trying to outlaw traveling through them for abortions, but it is not clear how those laws would be enforced.
Cox did not want to travel, as she wrote in an op-ed in the Dallas Morning News last week: "I am a Texan. Why should I or any other woman have to drive or fly hundreds of miles to do what we feel is best for ourselves and our families, to determine our own futures?"
Pregnant patients in Texas who can't afford to travel for abortions can either continue to carry the pregnancy, or wait until they become sick enough to qualify for the medical exception.
The Center for Reproductive Rights says Cox felt she couldn't wait any longer for the Texas Supreme Court to decide her fate, fearing that her chance to have future children was in jeopardy, so she decided to travel to a state where abortion is legal. Her attorneys are not disclosing where Cox traveled to receive care.
3. It's about one abortion, but the implications are far wider
Although the Texas high court knew Cox was leaving the state, it didn't dismiss the case. Its seven-page opinion puts responsibility for these highly consequential choices on doctors.
The all-Republican court writes that the Texas legislature "has delegated to the medical – rather than the legal – profession the decision about when a woman's medical circumstances warrant this exception."
The decision notes that Cox has a very complicated pregnancy and "tragic diagnosis." Despite this, the court goes on to say, "Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses." And it concludes by granting Paxton's request to throw out the lower court's ruling that would have allowed Cox to have an abortion legally in Texas.
"I think any regular person can look at her case and say, 'Well, surely Kate should qualify'" for an abortion, Cox's lawyer, Molly Duane of the Center for Reproductive Rights, told NPR's Morning Edition.
Yet, Duane points out, Cox was not "sick enough" in the Texas justices' eyes. "That should be truly chilling because it means, I think, that the exception doesn't exist at all." Duane added, "My question is, if she doesn't [qualify], who does?"
Anti-abortion rights groups in Texas cheered the high court's decision. "We are grateful that the Texas Supreme Court affirmed the protections in Texas law for the unborn baby in this case," wrote Amy O'Donnell of Texas Alliance for Life. In a previous statement, the group said the Center for Reproductive Rights was using Cox's case to "chisel away" at Texas's abortion laws.
4. Texas doctors face malpractice on one side, felony charges on the other
In court and in legal filings, Paxton's office has repeatedly argued that women with life-threatening pregnancies who did not get appropriate care in Texas can and should sue their doctors for malpractice.
At the same time, all of Texas's abortion laws target doctors who perform abortions with penalties. Doctors face life in prison, fines of $100,000 and loss of their medical license.
Paxton has not responded to repeated requests from NPR for explanations on how the overlapping abortion bans are being enforced.
"In the two years that these abortion bans have been in effect in Texas, the attorney general and officials for the state have remained eerily silent. They have refused to tell anyone what the exception means," Duane says.
People who help women get abortions can also be held liable under one of those three laws, S.B. 8, which says anyone can sue a person for helping someone get an abortion. A person who drives their wife to the hospital for an illegal abortion in Texas could be sued by anyone anywhere. This is why Kate's husband Justin Cox was also named in the petition – Duane says it was to protect him against this provision of S.B. 8.
5. Three laws, zero clarity
With three different laws governing abortion in Texas, confusion reigns. For instance, Texas has a so-called "heartbeat law." In other states, those laws mean abortion is legal up until cardiac activity can be detected, usually around six weeks gestation. But Texas also has a law banning all abortions, from conception. It supersedes the six-week-ban in early pregnancy.
Part of what the Center for Reproductive Rights is seeking in both this case and its pending case against the state, Zurawski v. Texas, is clarity.
Even abortion rights opponents and the lawmaker who authored S.B. 8 have asked for this kind of guidance.
And the Texas Supreme Court justices also wrote that doctors could use help understanding how to apply the exception in real life circumstances.
"The courts cannot go further by entering into the medical-judgment arena," they wrote. "The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails."
The Texas Medical Board has told NPR it will not comment on pending litigation. Paxton's office did not respond to NPR's multiple requests for an interview. Neither entity has provided guidance to doctors or hospitals that has been shared publicly.