I believe Kate Cox had already left Texas when the Texas Supreme Court decided that she didn’t qualify as an “exception” under Texas law. There’s something about this decision that needs to be emphasized. In one part of the decision, the TSC defended Texas law by saying that the exceptions in the law provide adequate projection for women’s health. From the decision:
These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice. Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception. … If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies and Texas law does not prohibit the abortion.
Okay, but then the TSC turned around and said that Kate Cox’s doctor was wrong about her need for an abortion.
Though the statute affords physicians discretion, it requires more than a doctor’s mere subjective belief. By requiring the doctor to exercise “reasonable medical judgment,” the Legislature determined that the medical judgment involved must meet an objective standard. Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets the exception’s requirements. Certainly, a doctor cannot exercise “reasonable medical judgment” if she does not hold her judgment in good faith. But the statute requires that judgment be a “reasonable medical” judgment, and Dr. Karsan has not asserted that her “good faith belief” about Ms. Cox’s condition meets that standard. Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it.
In other words, the law gives doctors discretion as to what constitutes a genuine medical need for an abortion, but the state can still prosecute a doctor if the judges and politicians decide the doctor’s decision was wrong. See how that works?
Under Texas law the only exception is imminent death of the mother, apparently, but then the question is, what is “imminent”? How close to the brink does the mother have to be before an abortion qualifies as an “exception”? Already some women in Texas have been forced to wait until life-threatening conditions had set in before they could terminate a pregnancy.
Physicians in Texas have begged the legislature to make the law clearer. The legislature insists the law is fine as it is. Well, it’s fine for their purposes, which is to maintain control over women’s bodies. If doctors were given genuine discretion to make medical decisions, the state would lose that control.
Abortion rights advocates have been saying for years that the real motivation behind criminalizing abortion has nothing to do with “saving babies” but about controlling women. Some states — Tennessee, for example — have passed laws that don’t even allow clear exceptions for ectopic pregnancies. To anyone who isn’t an abortion criminalization zealot, what’s happening in Texas, and elsewhere, reveals this is true. Critiminalizing abortion is a great issue for misogynists, who can use the law to brutalize women while pretending to occupy a high moral ground while doing so. And the zealots are not going to stop until abortion is illegal everywhere in the U.S., without exception. For example,
As a physician practicing in Tennessee, I now must guess whether a prosecutor would charge me with a crime when I help women through those 5 percent situations, contending with the spectrum of risks and imperfect predictions. If a woman’s amniotic membranes rupture at 16 weeks, if she is febrile and bleeding, I think the risk of prosecution is low. If she is medically stable but at high risk for infection and hemorrhage, I am not sure.
I believe the state’s law was intended to be ambiguous and confusing, to make physicians scared to provide abortion care. We’re incentivized to pause, wait, reconsider — actions that can be life-threatening. Women with ectopic pregnancies have waited in emergency rooms for hospital lawyers to determine whether an abortion can proceed. We have denied abortion care to women with cancer and other complex medical problems who find out they are pregnant. Women with pregnancies affected by life-limiting fetal anomalies — anencephaly (no skull or brain), renal agenesis (no kidneys, no proper lung development) — have had to seek abortion care out of state. One patient I managed who was unable to receive abortion care ultimately required an emergency hysterectomy and delivered an extremely premature infant, 14 weeks early.
State Senator Richard Briggs, a Republican and a physician, is the Senate sponsor of a bill in Tennessee that would amend the law to provide true exceptions to perform abortions for ectopic pregnancies and lethal fetal anomalies and to prevent maternal death or serious bodily harm. It has been developed with tireless input from physicians and in coalition with other anti-abortion state legislators. But the powerful anti-abortion group Tennessee Right to Life, which crafted the original law, has mobilized against the reform, threatening lawmakers that voting for it will affect their “pro-life score.”
the ambiguity is the point.
How Texas law views women.
See also Chris Hay.es
