The Truth About Texas Supreme Court Abortion Ruling and Kate Cox
/You’ve probably heard the heartbreaking and alarming story of Kate Cox, who was seeking an abortion in the state of Texas, after discovering her third child has a tragic diagnosis that is likely fatal, but not always. She has a husband and two children, and it would be a tremendous loss to her family if she were to lose her life. So, why did Attorney General Ken Paxton fight the lower court’s ruling granting the abortion, and why did the Texas Supreme Court rule against her?
This case is raising many ethical questions about the pro-life position, whether it is possible to legally maintain, or if it’s a feasible political goal. But looking at the ruling of the Supreme Court and the circumstances involving the case, it’s hard to see how it could make a different call.
First things first, it’s important to note that it is absolutely legal to seek an abortion in Texas if the mother’s life is in jeopardy, and that is to be determined by “reasonable medical judgement,” not the attorney general. It is also permitted if there’s “a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” The court even made it clear, “A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during pregnancy, raising the necessity for an abortion to save her life or prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgement, given the unique facts and circumstances of each patient.”
I’ve heard many things in the media about the threat to Kate Cox’s life, the possibility of her becoming infertile, etc. The great irony in all this is according to the Court, if the danger to Cox’s life and body are accurate, she could have already had her abortion. If her doctor felt confident about the risks to Cox, the abortion should have been performed. The hospital where Cox’s doctor is employed would allow a D&E abortion, but only after the court legally authorized the procedure (Paxton also claimed the hospital’s protocol wasn’t followed because Dr. Damla Karson did not seek a second opinion).
The issue, and why the Texas Supreme Court had to rule against her, is Cox’s doctor didn’t make the case that she truly qualified for the exemption. When Dr. Damla Karsan requested “pre-authorization” for the abortion, “Dr. Karsan did not assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgement, an abortion is necessary because Ms. Cox has the type of condition the exception requires.”
The Court argues Dr. Karsan used a lower standard of “good faith belief” rather than a “reasonable medical judgement,” and that is what the law requires, not a “subjective belief.” The Court made it clear that a doctor doesn’t need to have “medical certainty” or that a patient be ready to die, as Cox’s lawyers mischaracterized in their arguments.
If Cox needs the abortion for life-sustaining purposes within the reasonable medical judgment of her physician, she should do what’s in the best interest of herself and her family. But the Court is bound by what was written by the legislature, and the lawsuit admitted Cox was not “imminently at risk.” It’s argued she’ll be at risk of needing a C-section, but that would be likely even if the child was healthy and Cox wanted to continue the pregnancy.
Another factor in this complicated case is the diagnosis of Trisomy 18, a chromosomal disorder. Many online who normally favor the pro-life position have expressed they think it’s cruel to force a mother to carry a child who might die and potentially risk herself. But abortion bans aren’t about “forcing” a woman to carry. Abortion bans are about preventing an act of force, meant to deliberately kill the child. Should a woman be able to euthanize a child if there’s a grim diagnosis? And if the answer is yes, how far would you be willing to extend that right of euthanization?
“It is not a matter of if I will have to say goodbye, but when.” Cox, understandably, explained in her lawsuit that she no longer wanted to continue the pain and suffering of her pregnancy, nor did she want to continue putting her body at risk. She believed an abortion would be the safest route for her, and didn’t want to deliver a child who would die and only have a few minutes outside of the womb and suffer. But then she said, “I desperately want the chance to try for another baby and want to access the medical care now that gives me the best chance at another baby.”
Though we understand this is a heartbreaking scenario for Cox, I don’t understand how this line of argumentation was helpful. If the case isn’t about preserving Cox’s life, and her doctor isn’t meeting the threshold of “medical reasonable judgment” regarding the other risks to her body, the argument morphs into obtaining permission to kill certain children with disabilities. Imagine if a parent argued, “My child has Downs syndrome, and I don’t want to assume the risk of carrying them to term if it will lessen my chances of having a healthy and normal child.”
Also, Cox is 20 weeks pregnant. At this stage, Dilation and Evacuation would be the likely method for the abortion. The cervix must be dilated over one to two days. She will be given medication or anesthesia for the procedure, instruments will be inserted to stabilize and open the cervix, and then a cannula will be used to suck out the amniotic fluid. The baby will be too large to fit through the tube, so the doctor will have to use a Sopher Clamp to tear it to pieces. A baby’s head at 20 weeks is normally the size of a plum and needs to be crushed and pulled from her womb. Then, the rest of the remains are scraped with a curette.
Parents cannot control how long their children will live. They may live to be 100 or only live for six minutes. You can’t control whether a child develops cancer or gets hit by a car. Tragedies are unavoidable and so is suffering. You can only control a child’s death if you’re the one who ends their life. Whether it’s ethical to deny a child the dignity of their natural death, because they’re not predicted to live long, was not for the Texas Supreme Court to decide, especially not with this case.
After reading the lawsuit brought by the Center for Reproductive Rights on behalf of Dr. Damla Karsan and Kate Cox, I question what their endgame was. Their argument was doomed. Is media outrage for Kate Cox the goal? Perhaps electoral backlash? The narrative of “cruel pro-lifers practically killing this woman” is powerful, but it’s not the reality, nor was it argued that Cox’s life was in imminent danger due to pregnancy.
Kate Cox is seeking an abortion outside of Texas. Regardless of how you feel about her decision and the subject of abortion, I ask that you send her family thoughts and prayers.
