By: Kanta Mendon
Published On: May 17, 2024
Kate Cox was about twenty weeks pregnant with her third child when her doctor, Dr. Damla Karsan, diagnosed the fetus with trisomy 18, a genetic condition that has a high mortality rate.[1] According to the National Institute of Health, almost forty percent of fetuses with this condition die during labor and only five to ten percent of children with this condition survive beyond their first year.[2] With her medical expertise and intimate knowledge of Cox’s condition, Dr. Karsan recommended Cox for an abortion based on the medical-necessity exception in the Texas Abortion Prohibition.[3] Abortion should be a decision that an individual makes with her doctor, but after the US Supreme Court ruled to overturn the precedent set in Roe v. Wade in Dobbs v. Jackson Women’s Health Org., the Texas court has usurped this decision-making power and has infringed upon an individual’s right to medical autonomy.[4] The statutory solution to address this infringement is to overrule Dobbs and repeal Texas’ abortion prohibition.[5] But until either the federal government, Texas legislature or the Supreme Court decide to end this discrimination against pregnancy-capable individuals, physicians have to look to the courts for guidance on how to function effectively within the confines of the abortion prohibition. It is the Supreme Court and the legislature’s duty to provide guidance to courts to interpret the Texas abortion prohibition statute and it has failed to do so.[6] Without this guidance, the pregnancy-capable patients in the state face the risk of not receiving necessary care during a medical crisis.[7]
The Texas Statute generally prohibits an individual from knowingly performing or attempting an abortion but carves out an exception to the general prohibition for a physician to perform an abortion if the pregnant individual faces a risk of death or substantial impairment of a major bodily function without the abortion.[8] The court clarifies that this is an objective standard that is based on “reasonable medical judgment.”[9]
The Supreme Court of Texas’ decision in this case is riddled with contradiction and provides little guidance for physicians balancing providing adequate care for their patients and avoiding the harsh sanctions imposed by the Texas legislature. The court starts its decision with the statement that the determination that a pregnant individual “has a life-threatening physical condition” such that they fall within the exception is for a doctor to make.[10] And yet, we see the Texas court taking this decision into its own hands. The court states that “[a] woman who meets the medical-necessity exception need not seek a court order to obtain an abortion,” and it is the patient’s doctor who has the exclusive discretion to make this determination.[11] But, the court then questioned Dr. Karsan’s judgment of Cox’s condition.[12] Despite Dr. Karsan determination that Cox would fall into the exception of the abortion prohibition based on her medical history which includes four emergency room visits, elevated vital signs, the risk for uterine rupture, and risk of affecting her ability to have children in the future, the court decided arbitrarily that Ms. Cox does not.[13] The court offered no expert witness testimony or evidence contradicting Dr. Karsan’s determination and does exactly what it explicitly prohibits Texas courts from doing, “entering into the medical-judgment arena.” A group of individuals with no professional medical backgrounds should not be empowered to question a doctor’s decision that addresses their patient’s medical needs and make decisions on the doctor’s behalf.
This case clearly shows the dangers of allowing the courts to expand their jurisdiction to make proxy medical decisions for patients. Unlike doctors who work closely with their patients to determine the benefits and risks of medical procedures, judges lack the requisite knowledge about the medical field and the details of a patient’s health to make these decisions for patients. An individual should have the autonomy to make the best medical decisions for themselves with the expertise and oversight of their physician. The Texas Supreme Court has made its message loud and clear, the exception to the state’s abortion provision is nothing but illusory. It places physicians and healthcare in the crosshairs of its moral, rather than legal, battle to control pregnant individuals’ bodies. While claiming that the court “does not hold a doctor to medical certainty,” the court ignores the reality that the Texas legislature has imposed the criminal liability equivalent to a second-degree felony, civil liability of not less than $100,000, and the revocation of a medical license for violating the statute.[14]
The legislature has also given limited guidance for patients and physicians to navigate the restrictive abortion policies. Two Texas attorneys, Steve, and Amy Bresnan have filed a petition with the Texas Medical Board to clarify the exceptions to the general prohibition of abortion.[15] Although this will help the physicians trying to operate within Texas’ restrictive policies, the restrictive policies are the problem themselves. The Texas legislature and Supreme Court need to reevaluate their infringement upon the lives of pregnant individuals and identify the detrimental effect they are having on their pregnant citizens.[16] The U.S. Supreme Court must reinstate the right to privacy and medical autonomy by overruling Dobbs.[17] Most importantly, the federal government must codify the right to privacy established by Roe and ensure that pregnancy-capable individuals have the autonomy to make the most appropriate medical decisions for themselves.[18]
[1] In re State, No. 23-0994, 2023 WL 8540008 (Tex. Dec. 11, 2023).
[2] Edwards Syndrome, National Library of Medicine, https://www.ncbi.nlm.nih.gov/books/NBK570597/ (last visited Feb. 9, 2024).
[3] In re State, 2023 WL 8540008, at *1.
[4] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 301 (2022); Roe v. Wade, 410 U.S. 113, 152 (1973).
[5] Tex. Health & Safety Code Ann. § 170A.002 (West).
[6] Madaleine Rubin, Texas Medical Board Asked to Issue Guidance on State Abortion Laws, The Texas Tribune (Jan. 16, 2024, 4 PM), https://www.texastribune.org/2024/01/16/texas-medical-board-abortion/.
[7] Id.
[8] § 170A.002 (West).
[9] In re State, 2023 WL 8540008, at *1.
[10] Id.
[11] Id. at *2.
[12] Id.
[13] Id. at *3; Paul J. Weber and Jamie Stengle, Kate Cox Sought an Abortion in Texas. A Court Said No Because She Didn’t Show Her Life Was in Danger, AP News (Dec. 12, 2024, 6:30 PM), https://apnews.com/article/abortion-kate-cox-texas-exceptions-e85664b2ab76bcb689b1b91913d3e33e.
[14] In re State, 2023 WL 8540008, at *1; Tex. Health & Safety Code Ann. §§ 170A.004, 170A.005, 170A.007 (West).
[15] Rubin, supra note 6.
[16] Isabelle Chapman, Nearly Two Years After Texas’ Six-Week Abortion Ban, More Infants Are Dying, CNN Health (July 20, 2023, 11:33 AM), https://www.cnn.com/2023/07/20/health/texas-abortion-ban-infant-mortality-invs/index.html.
[17] Dobbs, 597 U.S. at 301.
[18] Roe, 410 U.S. at 152.