The case of Kate Cox has exposed the nearly impossible task of determining who qualifies for a medical exemption to abortion bans in states like Texas.
The state bans abortions except in cases in which the mother’s life is at risk. According to the Texas Supreme Court, that’s when a pregnant woman “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
But even that is up for interpretation. According to Cox’s lawyers, her doctors said that continuing her pregnancy puts her at risk for life-threatening complications with a fetus that’s unlikely to survive and threatens her future fertility.
That argument, however, did not meet the state’s legal criteria for an abortion. On Monday evening, the Texas Supreme Court said that Cox’s doctors “didn’t show her abortion would meet the standard for a medical necessity.” That is, her lawyers, the court ruled, did not prove that Cox’s life was sufficiently at risk.
Dr. Sharlay Butler, an OB/GYN at Brigham and Women’s Hospital in Boston, said there are no predefined checklists for what “risk” means. “It’s not predictable,” Butler said. “That’s not how we practice medicine.”
“How sick do they need to be?” she added. Neither Butler nor any other doctor interviewed for this story was involved in Cox’s case.
While many states’ medical exemptions to abortion laws may seem clear, doctors say that they are actually ambiguous and don’t allow them the freedom they say they need to give appropriate guidance and treatment to their pregnant patients.
The laws are often “so vague that it makes it difficult for people to decide under what circumstances they’re going to provide care,” said Dr. Jonas Swartz, an OB/GYN at Duke Health in Durham, North Carolina. “There’s all sorts of conditions that can make pregnancy dangerous. But deciding what the degree of danger that the state feels is appropriate to recommend or allow abortion is really challenging for providers.”
A woman’s health may not be in immediate danger, but in some cases continuing a pregnancy can progress to a life-threatening situation.
“There is no exact red line for most people for where a pregnancy is too dangerous to continue. Instead, it really is a gradient of risk,” Swartz said. “It’s a difficult situation to be in. I want to provide the best care I can for my patients, and I think most doctors do. And right now in many places, we’re restricted from doing that.”
Cox’s fetus was diagnosed with trisomy 18, a rare chromosomal abnormality that can lead to severe heart, neural and digestive disabilities — that is, even if the baby survives the pregnancy. Court documents filed by Cox’s lawyers also said that she had ongoing cramping and had been leaking amniotic fluid during her second trimester of pregnancy. It’s unclear whether the fetal condition led to those complications.
Leaking fluid indicates that a woman’s water has broken, and it puts her and her baby at risk of a severe bacterial infection if it’s not addressed quickly. Ruptured membranes allow bacteria to travel from the vaginal canal up into the womb.
That can infect “not only the fetus, but also mom. She can get an overwhelming blood infection and become septic,” Butler said. “There is always a risk of death.”
The fetus likely would have been delivered via C-section because Cox had two previous deliveries this way.
Each subsequent C-section carries the risk of placenta accreta, Butler said, which is when the placenta grows into the C-section scar of the uterine wall. This increases the chances of excessive bleeding and even hysterectomy, a surgery in which the uterus is removed.
“It’s a lot of maternal risk to take on for minimal to no fetal benefit,” Butler said.
Cox has been vocal about her desire to have more children.
“I never thought I would ever need or want an abortion,” Cox told NBC News. “There is no outcome here where I take home a healthy baby.”
Texas has multiple laws on the books that prohibit abortion. One allows private citizens to file civil lawsuits against anyone who provides an abortion as soon as any cardiac activity is detected, around six weeks’ gestation.
Another law that went into effect after Roe v. Wade was overturned last year is more severe. It states that performing an abortion at any time during a pregnancy is a felony, punishable with up to life in prison.
Some states with abortion bans also have provisions that allow for exemptions in the case of rape or incest, or when the fetus has a condition in which it’s highly unlikely to survive. Even those conditions are open for interpretation: In 2022, a Louisiana woman said she traveled to another state after she was denied an abortion in Louisiana even though her fetus was developing without a skull and was not expected to survive.
‘A chilling effect on physicians’
Last Thursday, Texas Attorney General Ken Paxton sent letters to three hospitals — Houston Methodist, Women’s Hospital of Texas and Texas Children’s Hospital — warning that they could face criminal penalties if any doctor allowed Cox to receive an abortion.
The ruling and subsequent warning letters had “a chilling effect on physicians,” said Dr. Laura Esserman, a breast cancer surgeon and women’s health advocate at the University of California, San Francisco. Following several weeks of court battles in the state, a lawyer for Cox announced Monday that she would leave Texas to end her pregnancy.
One of Esserman’s UCSF colleagues, Dr. Ashley Jeanlus, an OB/GYN, said she recently cared for a patient from Texas whose fetus was also diagnosed with trisomy 18.
“She said her doctors never mentioned an abortion as an option. She had to find the courage to bring it up, and her doctor said that she couldn’t even talk to her about it,” Jeanlus said. “That was one of the most devastating things that she had to go through.”
States with the most stringent abortion bans have something else in common: They tend to have the highest rates of maternal and infant mortality.
“We’re forcing people to stay pregnant in states that are not taking care of pregnant patients,” Jeanlus said. “These bans are asking physicians and health care providers to watch patients until they become sicker and sicker, and then we have a debate as to when they’re finally sick enough to provide that essential health care. That’s not health care. That’s not medicine.”
