Kate Cox, whose fetus had a fatal condition, did not qualify for an abortion in Texas: Not after four emergency room visits, elevated vital signs, risks of a uterine rupture and with her ability to have more children in jeopardy.
The Texas Supreme Court's rejection of the mother of two's request for an exception under the state's restrictive ban has laid bare the high threshold women in many states must meet to get the procedure: Pregnancy complications that pose life-threatening danger to the mother.
“These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice,” according to the order from the court, which is made up of nine Republican justices.
The ruling late Monday sided with the state’s Republican attorney general, who for a week had argued that Cox did not meet that standard despite appeals from her attorneys that her health was deteriorating. Hours before the order came down, Cox's attorney said she could no longer wait for the procedure and had already left Texas to get an abortion in another state.
The outcome in Texas drew condemnation from the White House, which criticized Republican abortion policies and called them out of step. Public polling has shown that the majority of U.S. adults want abortion to be legal at least in the initial stages of pregnancy.
Texas' ban is one of the most restrictive in the U.S. and backers of the law say it worked as designed this week, even while acknowledging Cox's tragic circumstances.
But the decision galled doctors and opponents who say it underscored how, even though bans like Texas' allow abortions to save a mother's life, the laws are vague on how close to death a patient must be to get the procedure. Fourteen states have banned abortion at nearly all stages of pregnancy since the U.S. Supreme Court decision last year in Dobbs vs. Jackson Women's Health, which upended the right to an abortion.
Rachel Rebouché, an associate dean at the Temple University Beasley School of Law in Philadelphia, said bans were not written in consideration of real-world situations and called the complications faced by Cox and other women in Texas “deeply disturbing.”
“But they are not surprising,” she said. '"This is exactly what we knew would happen in the aftermath of Dobbs.”
On Tuesday, a day after the Texas Supreme Court denied Cox permission to receive an abortion, there was no reaction from Republicans in Texas who championed the state's ban. The offices of Republican Texas. Gov. Greg Abbott, the state's GOP lieutenant governor and the House speaker did not return messages seeking comment.
States with bans in the U.S. have provisions to allow abortion to save the life of the woman. There’s a patchwork of policies for other exceptions, including for pregnancies caused by rape or incest. In the states with the most restrictive policies, abortion is generally allowed if doctors find it necessary to prevent the pregnant woman from irreversible impairment of a major bodily function — but not to protect her health in other ways, including mental health.
Texas Right to Life President John Seago, whose group opposes abortion and has helped push through some of the state's restrictive laws, said they want doctors to “intervene immediately” if there is a life-threatening condition. But he said Cox's lawsuit never demonstrated that was the case.
“When we look at this case, it is a very tragic situation of a child that has a negative diagnosis, but in Texas law we have a very strong position that we are going to give every child in Texas a chance at life,” Seago said.
Nationally, about 700 women die each year because of pregnancy or delivery complications. Doctors worry that delaying an abortion could mean a slightly riskier procedure, especially when the pregnancy is further along. While they stress that abortion is safe at all points of pregnancy — with an overall complication rate of 2% — the procedure does carry additional risks as the pregnancy progresses.
Doctors and researchers say abortion delays have grown more common since Roe v. Wade was overturned. One big reason for delays is the increasing need to seek care out of state.
Some state lawmakers took steps this year to clarify their laws. In Texas, for instance, they added a provision that offers doctors some legal protection when they end pregnancies in cases of premature rupture of membranes or ectopic pregnancies.
For Cox, tests confirmed late last month that the baby she was carrying had a condition called trisomy 18, an extra chromosome that made it likely the baby would die in utero or shortly after birth.
Dr. Andrea Henkel, a clinical assistant in the department of obstetrics and gynecology and a complex family planning subspecialist at Stanford Health Care in Palo Alto, California, said trisomy 18 is associated with an increased risk of gestational diabetes, preterm birth and cesarean birth. She said additional cesareans — Cox already has two children born by C-section — are inherently more risky, especially if Cox wants to have more children in the future.
“I think that that’s where I really struggle right now is when legislators get in the way of a patient making the best plan outside of knowing their specific goals and desires,” Henkel said.
