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If anyone has tried telling you that conservative state laws on abortion will still allow merciful exceptions in cases involving agonizing medical nightmares, please ask them to explain to you what happened in Texas this week.
Earlier this month, a Dallas-area woman named Kate Cox, a mother of two who was pregnant with a much-wanted third child, asked courts to grant her an exception to the state’s post-Roe antiabortion legislation because that much-wanted child had been diagnosed with a fatal genetic condition that almost always results in miscarriage or stillbirth. On Monday, the Texas Supreme Court rejected her request. Exception denied.
In an op-ed for the Dallas Morning News that was republished in papers around the country, Cox had begged for mercy. She wrote that she didn’t want her daughter to suffer during what was likely to be an exceptionally brief life, if she was born at all. “I kept asking more questions, including how much time we might have with her if I continued the pregnancy,” Cox wrote, recalling how she came to her decision with doctors’ consult. “The answer was maybe an hour — or at most, a week. Our baby would be in hospice care from the moment she is born.”
I ask you, if this scenario is not worthy of an exception, what scenario is?
Carrying the pregnancy had severely compromised Cox’s own health. She had been repeatedly admitted to the emergency room. She was cramping severely and leaking fluid.
Her doctor, Damla Karsan, submitted a statement to the court that it was her “good faith belief and medical recommendation” that Cox should be granted permission to have an abortion. Cox, the doctor wrote, “has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions.”
If this doctor’s professional opinion does not prompt the Texas court to grant an exception, what opinion would?
A district court judge did initially grant a Cox an exception to Texas abortion laws, which block all abortions other than those in which the pregnancy presents a “risk of death or poses a serious risk of substantial impairment of a major bodily function.” But the state’s attorney general, Ken Paxton (R), intervened last week and asked the Texas Supreme Court to intervene and block Cox from abortion access. In a letter sent to area hospitals, he threatened to take legal action against any Texas doctors or hospitals who aided Cox in ending her pregnancy, including “first-degree felony prosecutions.”
Days passed, and Cox waited in what I can only imagine was unspeakable anguish.
Is this when the exception might finally kick in? Is this the kind of hell on earth in which a pregnant woman like Cox might expect that someone in power would allow her doctor to do what her doctor had already deemed was best for Cox’s battered body, and what Cox herself had already deemed was best for her grieving family?
When the state Supreme Court issued its order on Monday, the text read like either satire or skulduggery. The court penalized Karsan, the doctor, for using the phrase “good faith belief” rather than “reasonable medical judgment.” The order implied that if Cox’s condition had truly been life-threatening, then Karsan would have simply performed the abortion already rather than bringing the matter before the court: “A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion.”
Never mind that Paxton’s menacing letter had already made it clear that he would prosecute doctors who aided Cox in obtaining the abortion that the court was now saying doctors could have just performed without asking.
Hours before the court issued its order, Cox’s attorneys revealed that she had fled the state to find abortion care elsewhere. She couldn’t keep waiting. Would she get to recover in her own bed, near her own family? No. Would she get to have the comfort of being attended to by her own trusted doctor? No. Would she get to make the decision privately, then mourn as she wished, without having to flay herself in the press by begging for an end to the unimaginable torment her state had inflicted upon her? She would not. But at least she would not have to fear for her own life while waiting for her child to die. At least there’s that.
What happened to Kate Cox was a travesty of justice and a tragedy of compassion. And is not going to be an exception.
Monica Hesse is a columnist for The Washington Post’s Style section, who frequently writes about gender and its impact on society. In 2022 she was a Pulitzer Prize finalist in the field of commentary. She’s the author of several novels, most recently, “They Went Left.”
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