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One Texas case shows why women can’t rely on legal exceptions to abortion bans

Kate Cox’s case speaks to the “hellish” legal limbo these bans put patients, and providers, in.

Kate Cox, a 31-year-old Texas woman, petitioned the court for an abortion
The Texas Supreme Court blocked Kate Cox, a 31-year-old Dallas woman, from obtaining an abortion after a lower court judge allowed it.
Kate Cox
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

The Texas Supreme Court has ruled against Kate Cox, a 31-year-old woman who sought an abortion in the state. Previously, Cox argued that the lethal condition impacting her fetus and health risks she’d face during the pregnancy meant she qualified for the exemptions outlined in Texas’s abortion ban. The court decision, which comes after Cox left Texas to obtain an abortion, sets a disturbing new precedent in a state that already has one of the most restrictive abortion bans in the country.

It’s a notable ruling because it further narrows what Texas law considers medical exceptions to its abortion ban, and could have implications for other states with similar policies. Currently, abortion is broadly banned in the state, and there are limited exceptions for conditions that endanger the life of the mother or that cause “substantial impairment” of bodily functions. Given how opaque the law is, it was not clear exactly what those exceptions entailed, and though the court didn’t explicitly clarify that ambiguity in its ruling, its decision suggests that health challenges like those Cox faced — including risks to future pregnancies — don’t qualify for the exemption.

“Some difficulties in pregnancy … even serious ones, do not pose the heightened risks to the mother the exception encompasses,” the court concluded, noting that Cox’s doctor hadn’t effectively affirmed that the complications she could face — including threats to future fertility — reached the threshold for an exception to the ban.

The justices also maintained existing uncertainty when it came to providers’ prerogative to conduct abortions in the state. Some providers have refrained from giving abortion care due to fear of legal consequences: Medical professionals found in violation of Texas’s abortion law can face up to 99 years in prison as well as large fines, while those who are found to have aided in providing abortion access can face civil suits.

The court ruled that the decision about whether a condition constituted a medical emergency, and thus qualified for an exemption, should be left up to physicians and not the courts. “Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function,” the decision reads. The court didn’t resolve the legal tension inherent in the fact that Cox’s doctor felt an abortion was warranted in her case while the court said it was not.

“The court is trying to get out of the business of construing the Texas abortion statute, but by doing so, it simply leaves the statute in place to continue deterring doctors from taking a risk that might end their practice,” Northeastern University law professor Martha Davis tells Vox.

The ruling — and the legal challenges Cox endured — make clear that any exceptions to the Texas ban are extremely restrictive, and suggest future attempts to get an abortion by petitioning the courts could be struck down in the state. It’s also the latest in a series of cases that highlight how abortion bans disregard serious health risks that women face, and how they establish a confusing legal minefield for patients and providers.

The legal battle, briefly explained

Earlier this month, Cox, a mother of two, requested an emergency abortion because her fetus had been diagnosed with a lethal genetic condition called Trisomy 18. The condition frequently means that fetuses don’t survive to full term or that pregnancies result in stillbirths. Cox has spoken about being devastated by this news and how she feared that carrying the pregnancy to term would endanger her future fertility.

“An abortion was not something I ever imagined I would want or need,” Cox — who was 20 weeks pregnant — wrote in an op-ed in the Dallas Morning News published last week. “I need to end my pregnancy now so that I have the best chance for my health, for parenting my children, and for a future pregnancy.”

During a Thursday court hearing, Molly Duane, one of Cox’s attorneys, emphasized that Cox is at “high risk for multiple pregnancy complications, including hypertension, gestational diabetes, and infection.” Because both of Cox’s prior pregnancies resulted in cesarean sections, she’d likely need a third surgery if she carried this fetus to term, increasing her risk of complications.

After hearing these arguments, district court Judge Maya Guerra Gamble approved a temporary restraining order allowing an exception to the state’s ban, which would have enabled Cox to receive an abortion and protect the physician performing it. Texas Attorney General Ken Paxton, however, filed a petition to stay the district judge’s order. In it, he argued that Cox hadn’t demonstrated that she was navigating a “life-threatening” medical condition, or that the complications she would endure put her at risk of major bodily harm.

The Supreme Court issued the requested stay, which meant that Cox was effectively in limbo until the panel made its ruling on the order. Additionally, Paxton emphasized that any physicians who performed the procedure for Cox in Texas could face felony prosecution.

Because of how urgent her health concerns were, Cox left the state to obtain an abortion on Monday. “This past week of legal limbo has been hellish for Kate. Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer,” said Nancy Northup, the head of the Center for Reproductive Rights, which is representing Cox.

The Texas Supreme Court ultimately issued its ruling on the case after Cox had already left the state on Monday night.

The implications of Cox’s case

Cox’s case could have a number of legal implications. Prior to Cox, no pregnant patients had brought their case to court in an attempt to obtain an abortion since Roe was overturned, something that experts see happening more on a national basis moving forward. Whether this approach will be effective in other states remains to be seen.

“It may set a precedent for a new way individual plaintiffs can challenge abortion bans. To date, we’ve seen cases focused on harms experienced in the past — cases that argue that state laws are unworkable or unconstitutional or both,” says UC Davis law professor Mary Ziegler. “This is the first case in which we’ve seen a plaintiff seek a court-ordered abortion since Dobbs, but it will not likely be the last.”

In Texas, the case also suggests that abortions in circumstances similar to Cox’s could remain illegal, highlighting just how hollow and limited medical exceptions are.

“It … reveals just how ineffective the ‘health and life’ exceptions to abortion bans are in practice,” Wake Forest law professor Meghan Boone told Vox. “If doctors cannot reasonably interpret these exceptions, they will understandably refrain from providing care — even when they believe it would be the correct treatment for their patient.”

The state’s primary goal, Aziza Ahmed, a Boston University law professor, told Vox, is “to ensure that the medical exceptions are read narrowly,” a result that Boone argues will “further hamper the already extremely limited ability of pregnant people to access care when they need it.”

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