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Tuesday Talk*: Empty Exceptions

Kate Cox was the perfect patient to suit the Texas exception for the health of the mother. The circumstances could not have aligned better to test the merits of the law that, it was argued, didn’t ban all abortion, but allowed for medical intervention when the mother’s life or health was at risk. And despite her desire to have a child, her non-viable pregnancy was doomed, removing any cries of murder.

But her doctor had a point. This was Cox’s medical reality, but Texas Attorney General Ken Paxton, no stranger to indictment himself, was of the view that he, and not those damn doctors, got to decide whether aborting Cox’s pregnancy was a crime. Even a judge ruling in her favor wasn’t enough to stay Paxton from control, and so he appealed and obtained an injunction from the Texas Supreme Court, which was apparently unaware that it lacked the jurisdiction to prevent medical harm from coming to Kate Cox while letting time go by.

Ultimately, Cox was constrained to leave Texas to obtain the medical treatment that wouldn’t wait, to which the exception purportedly applied, and for which she had already jumped through a hoop that showed the exception to be unexceptional.

This case is unusual for Cox’s willingness to wage a legal fight while suffering a medical catastrophe, but not for the cruel bind the state placed her in. The day Cox received the terrible news about her fetus, the Texas Supreme Court was hearing oral arguments in Zurawski v. Texas, a suit brought by two doctors and 20 women who had been denied medically necessary abortions and were seeking to clarify the scope of emergency exemptions to the state’s ban. Among the plaintiffs is Amanda Zurawski, who was 18 weeks pregnant after a year and half of fertility treatments when her water broke. Although her pregnancy had no chance of surviving, she was denied an abortion until she became septic. Zurawski ended up spending days in an intensive care unit, and has been left with damage to her reproductive tract that will most likely make it harder for her to become pregnant again.

If this is the path down which a woman must go in order to obtain the medical care she and her physician deem necessary, then the path leads nowhere. As if to emphasize the point, the Texas Supreme Court, after Cox decided to end the waiting game and obtain the medical care she needed, ruled unanimously.

The unanimous decision Monday directs a lower court to vacate a temporary restraining order that authorized a doctor to perform an abortion on 31-year-old Kate Cox last week. Cox earlier on Monday said she couldn’t wait on the Supreme Court’s decision and would leave the state for care.

Saying that the decision isn’t up to the courts, the Supreme Court deferred decisions on Cox’s medical care to her doctors. The opinion notes that in the underlying lawsuit Cox’s doctor didn’t assert that Cox had a “life-threatening physical condition,” which is the standard in Texas as an exception to the abortion ban.

“Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses,” the court wrote.

Cox could have been rendered infertile, and that just wasn’t bad enough to meet the “life-threatening condition” requirement. Had her doctor uttered the magic words, would it have been different, or would the state then have challenged her diagnosis to say it wasn’t life-threatening enough? So what if the fetus isn’t viable? So what if the physical harm to the mother is serious? As long as she wouldn’t die (imminently, supposedly), she failed to meet the exception.

Although the opinion requires that the woman’s life be at risk, it says that the doctor won’t be held to certainty and need not “wait until the mother is within an inch of death.”

“The exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day,” the opinion reads. “An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.”

At every turn, these determinations are subjective. If a woman’s physician says so, is that good enough that neither the doc nor patient will be prosecuted by Paxton, or sued under Texas’ dread SB 8? How is anyone to know? Should a doctor assume the peril of prosecution to treat a patient? Must the patient (and her family) risk imprisonment or harm, or perhaps even death, at Paxton’s whim?

As states enact laws that permit abortions within unrealistically short time frames, the argument is that these laws include exceptions, inter alia, for the mother’s health or life. For some, this provided the minimal safety valve. Are they just empty exceptions, good only for begging for litigation and prosecution and inadequate to serve their purpose? Is there any subjective exception that won’t be gamed by mutts like Paxton to render them cynical and worthless?

Was this the way legislators saw their laws being squandered while women suffere?

*Tuesday Talk rules apply, within reason.

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