Abortion ruling keeps Texas doctors afraid of prosecution


Texas doctors, women and lawyers have been asking the state for nearly two years to clarify what is and is not allowed under its strict and overlapping abortion bans. Lawmakers passed a bill this year that clarifies some exceptions to the bans, but it was not enough to help doctors decide whether they could legally abort a Dallas woman, Kate Cox.

Ms Cox asked for permission to terminate her pregnancy after learning her fetus had a fatal genetic condition. A district court judge said she qualified for a medical exception to the bans, but the Texas Supreme Court overturned that decision this week.

Before the court ruled, Ms. Cox left the state to undergo the procedure, as thousands of Texas women had already done. Her case reveals the dynamics of abortion politics in Texas: For abortion opponents, including the state's Republican leaders, confusion and fear among doctors has prevented nearly all abortions, even in cases of serious pregnancy complications. , and there is little incentive to change course. .

Texas has publicly reported just 34 abortions so far this year, down from more than 50,000 in 2020, before the first of the severe restrictions went into effect.

That sharp drop came even though there have yet to be any prosecutions under state bans, or major lawsuits against doctors or hospitals. The mere threat of ruinous civil litigation or a life sentence in prison has been enough.

“Basically what we have is that no one will take responsibility,” said Molly Duane, a lawyer with the Center for Reproductive Rights who represented Ms. Cox and her doctor. “The court is not responsible. The medical board is not responsible. And meanwhile, doctors are more afraid than ever and the lives of real patients are at stake.”

Amy O'Donnell, a spokesperson for Texas Alliance for Life, an anti-abortion group, said in a statement that the fact that dozens of abortions have been performed in the state this year shows that medical exceptions to the bans, while limited, are working. .

“No doctors have been prosecuted or disciplined for anything related to those abortions,” he said, adding that his group was grateful to the Texas Supreme Court for ruling in favor of protecting Ms. Cox's fetus.

In its ruling, the Texas Supreme Court sided with the state's attorney general, Ken Paxton, who argued that exceptions to the bans were legal only when the mother's health or life was seriously threatened, and the case Ms. Cox did not seem to comply. that standard, based on the arguments presented.

The court said the law allowed abortions based on a doctor's “reasonable medical judgment.” If doctors remained confused, the court said, the Texas Medical Board could intervene with guidelines.

But doctors have said that the risk of performing an abortion they believed was necessary but which could then be questioned by the state presented them with a stark choice: go ahead with the procedure and risk prosecution for a serious crime, or wait until the women's health deteriorates. to the point that no one would question the medical necessity.

This week's ruling, which applied only to Ms. Cox's current pregnancy, provided little comfort to abortion rights advocates who hope the court, whose nine elected members are all Republicans, will rule in a separate but related.

Kate Cox left the state to get an abortion.Credit…Kate Cox, via Associated Press

That case, Zurawski v. Texas aims to resolve confusion over medical exceptions in general and allow doctors to perform abortions they deem medically necessary, and within the confines of the law, without fear of civil or criminal penalties.

Most of the 34 abortions reported in Texas in 2023 were performed with medication, the method typically used in the early stages of pregnancy, according to state data. Only two were “dilation and evacuation” surgical procedures of the type Ms. Cox sought, which are performed in the second trimester, after 13 weeks of pregnancy. In 2020, there were nearly 2,500 such procedures in Texas.

Doctors and legal experts said the lack of clarity in the law had deterred doctors from performing abortions they considered necessary to preserve a woman's health. The court found that the law does not require an imminent threat to the mother's life, but doctors said that in practice, those were the only situations in which abortions were performed.

“In Texas, you have to wait until the patient gets sick,” said Dr. Alireza A. Shamshirsaz, an obstetrician and fetal surgeon who left Texas for Boston last year. “But that is a dangerous game. “Wait, wait, wait, while mom gets sick, and then you do it.”

Dr Shamshirsaz said the problem was concern about legal action, especially among hospital administrators. “Our hospital was very clear that you can't even talk about abortion,” he said of a hospital where he had worked in Texas. “Because they don't want to deal with the state at all. Or the courts.”

The state and its experts have argued that patients are harmed not by the state law, but by doctors' unwillingness to perform abortions permitted by law.

“Much of the confusion and potentially poor care occurring is because doctors have misinterpreted the law,” Dr. Ingrid Skop, an obstetrician-gynecologist, said in a statement in the Zurawski case. “Unfortunately there has not been much guidance from the organizations that, on other less politically charged issues, have given them guidance.”

Cox, 31, a mother of two young children who said she wanted a large family, came forward after her fetus was diagnosed with trisomy 18, a genetic disorder that is fatal in all but rare cases.

She was believed to be the first pregnant woman to seek a court-ordered abortion since Roe v. Wade last year. Shortly after her case was filed, a pregnant woman in Kentucky sued to overturn that state's bans.

Texas law does not allow abortions based on the viability or non-viability of the fetus. But Ms. Cox's doctor, Damla Karsan, determined that carrying the pregnancy to term would threaten Ms. Cox's health and future fertility, particularly because Ms. Cox would likely need a cesarean section, which would be her third.

One aspect of Ms. Cox's case could end up deepening concern among doctors: the swiftness with which Mr. Paxton threatened Dr. Karsan with prosecution in an open letter.

The court's ruling, which was unsigned, issued “by the court” and did not include dissents, appeared to support Paxton's action, according to Laura Portuondo, a law professor at the University of Houston who specializes in constitutional and reproductive rights. “It enables and greenlights precisely the kind of intimidation campaign you saw Ken Paxton do here,” she said.

Doctors have been asking the Texas Medical Board for guidance on the issue of medical exemptions since last year. So far, the board has not taken any action. A spokesman for the board did not respond to a request for comment.

“We don't have clarity in this Cox ruling,” said Dr. Rick W. Snyder II, president of the Texas Medical Association, adding that getting guidance from the medical board would not be enough. “We're going to want legislative clarity,” he said. “We're trying to protect doctors so they don't have to go to court.”

The state legislature added some legal protections this year for doctors in certain limited cases, but Dr. Snyder said much more was needed. At the same time, he said, Ms. Cox was “clearly not” in a medical emergency. “I understand how the Supreme Court ruled the way it did, by not wanting to legislate from the bench,” she said.

Attorneys at the Center for Reproductive Rights have pushed courts in several states to adopt a “good faith” standard for evaluating a doctor's decision that a medical exception applies. By that standard, it could be more difficult to challenge an abortion legally, experts said, because doing so would involve having to prove that the doctor did not act in good faith.

Texas law says doctors must rely on “reasonable medical judgment,” a standard that allows their decisions to be more easily challenged by presenting testimony about what another “reasonable” doctor would do in the situation, legal experts said. Mr. Paxton's attorneys did just that in Ms. Cox's case, calling Dr. Skop as an expert witness who believed Ms. Cox's condition did not meet the requirement for a medical exception.

“The reason the difference matters is that it opens the door to bringing in competing experts,” said Ms. Portuondo, a law professor. “The state has its list of pro-life doctors who will say 'I don't think it's reasonable to perform this abortion.'”

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