Cox v. Texas is the First Pushback Since Roe v. Wade

By: Ana Cucalon

Edited by: Maddy Bennett and Olivia Paik

In a Texas state court, the Center for Reproductive Rights filed a case on behalf of Kate Cox, a pregnant woman requesting an urgent abortion. A week before the filing of this case requesting a legal abortion in the state of Texas, Cox discovered she had Trisomy 18, a prenatal disorder that causes several structural defects in the fetus and ultimately leads to fetal death. Cox had already had two cesarean procedures. A third cesarean section would be required if she continued her pregnancy. Her physicians cautioned her that going full-term could endanger her life and future fertility, as a third C-section would put her at a higher risk of developing several major health issues. Therefore, Cox and her husband decided an abortion would be the best option for their family. Cox sought the court's temporary overturn of the state's abortion prohibitions to obtain the urgent care she needed and avoid the grave risks to her life and health associated with remaining pregnant. [1] In light of Roe vs. Wade being recently overturned, this trial garnered national recognition as Texas's first case on behalf of a pregnant woman seeking legal emergency abortion care.

Texas has some of the strictest abortion laws in the country, and except for medical emergencies, all abortions beyond six weeks of pregnancy are illegal under current law. Additionally, The Texas Heartbeat Bill forbids healthcare providers from performing an abortion if they detect a fetal heartbeat. Because abortion is illegal, doctors and hospitals that perform abortions are criminally liable and may face dire consequences, including up to ninety-nine years in prison and fines exceeding ten thousand dollars. Doctors can only perform abortions to save a life or to avoid damage to major bodily functions. Only if doctors demonstrate reasonable medical judgment in treating medical complications can they avoid conviction (but not prosecution). [2] The problem is that because this legislation is so new and famously vague, medical providers and legal scholars alike are unsure of what constitutes a legal abortion. 

In the trial, Kate Cox’s lawyer sought to convince the judge that Kate needed an abortion to avoid critical damage to critical bodily functions. To do so, her attorney made two primary arguments. First, her pregnancy was putting her in serious medical risk. Kate had already been to the emergency room several times the week of the case, and her doctors cautioned that Kate’s condition would keep getting worse as the pregnancy continued. Second, Kate’s fertility was at serious risk. Kate’s fetus would not survive longer than a few days out of the womb, and carrying out the non-viable pregnancy would put the Texas mother, who was hoping for another child, in danger of not being able to conceive again. The plaintiff argued that by allowing Kate this abortion, the judge would be saving the lives of any future children. [3]

In response, the attorney representing the state of Texas laid out his claim. He argued that the standard for abortions is very clear and objective, and that Kate Cox is simply not allowed an abortion based on it. Specifically, he said that this argumental case is hypothetical; because Kate Cox isn’t at immediate risk, the Texas law of medical emergencies does not apply. [4] In response, the plaintiff argued that the law is not clear, as there are many cases of doctors being unable to decide what medical exemptions warrant legal abortions. Cox’s attorney implored the court that the state needs to at least clarify the law, because until that is done, the state can always find a doctor to say that the medical judgment of a health provider who gave an abortion was not “reasonable”, putting doctors at risk whenever they try to make that decision. [5]

Surprisingly, the judge quickly made a decision; she granted Kate Cox temporary permission to receive an abortion, stating that “the idea that Ms. Cox wants desperately to be a parent and that this law might actually cost her to lose that ability is shocking and would be a genuine miscarriage of justice”. [6]

Yet, that was not the end of Kate Cox’s fight with Texas. State attorney Ken Packson immediately appealed the ruling, sending letters to the hospitals where Kate Cox had admittance, saying that even though she was allowed to get the abortion, were any Texas doctor to perform it, they would be criminally charged. The Texas Supreme Court formally followed in this threat, blocking the restraining order and declaring the lower court ruling to be an error. Since her time was limited, Kate Cox decided she needed to cross state borders to get her abortion before it was too late. [7]

This case is important for several reasons. First, this case called out Texas’s bluff: the state had previously claimed that rather than the abortion law itself being problematic, the issue was with how physicians were applying the legal standard warranting lawful abortions. During a July hearing, a Texas state attorney questioned several women who were suing the state for abortion denials, questioning why they were suing Texas instead of their doctors. The state's attorney repeatedly questioned, “Did Attorney General Ken Paxton tell you you couldn’t get an abortion? Did anyone, working in any capacity for the state, tell you you couldn’t get an abortion?”. Despite Cox having been granted a temporary restraining order that permitted her to receive a legal abortion on an individual case basis, Texas state attorneys used every possible resource to circumvent Cox's ability to use the restraining order granted to obtain a lawful abortion in lieu of the state's legal standard. Second, this case highlighted serious issues with the law itself. Due to the case, the state is now forced to answer a difficult question: How much of a risk to your health does there have to be for a doctor to say that, in their reasonable medical judgment, you need an abortion? [8]

Finally, this case fundamentally shifted the discourse surrounding abortion, irrespective of party affiliation. Kate’s story counters the generalization that only irresponsible young girls or adolescent females use abortions as a form of birth control. It sets a precedent for the future, one in which people are now considering all the cases where patients may need abortions that are medically necessary beyond the use of abortion as an emergency method for pregnancy termination or contraception. Most importantly, it challenges the polarity of politics around abortion and urges the legal system to consider female autonomy as a nonpartisan fundamental right warranting protection amidst the backdrop of increasingly polarized conservative and liberal discourse. 

Notes:

1. Center for Reproductive Rights. 2017. “Cox v. Texas: The Case in Depth.” https://reproductiverights.org/case/cox-v-texas/cox-v-texas-case-in-depth/.

2. Varghese, Benson. 2023. “What is the Texas Abortion Law? (Dec 2023 Update).” Varghese Summersett. https://versustexas.com/texas-abortion-law/.

3. The Daily, The New York Times. 2023. “The Woman Who Fought the Texas Abortion Ban” (The New York Times, December 14, 2023).https://www.nytimes.com/2023/12/14/podcasts/the-daily/texas-abortion-ban.html.

4. (The Daily, The New York Times 2023)

5. (The Daily, The New York Times 2023)

6. (The Daily, The New York Times 2023)

7. Smith, Tracy. 2024. “Texas mother Kate Cox on the outcome of her legal fight for an abortion: "It was crushing."” (CBS News, January 14, 2024). https://www.cbsnews.com/news/kate-cox-on-her-legal-fight-for-abortion-trisomy-18/.

8. “Kate Cox's case tests Texas abortion laws.” (The Texas Tribune, December 13, 2023). https://www.texastribune.org/2023/12/13/texas-abortion-lawsuit/.

Bibliography:

“Cox v. Texas: The Case in Depth.” 2017. Center for Reproductive Rights. https://reproductiverights.org/case/cox-v-texas/cox-v-texas-case-in-depth/.

The Daily, The New York Times. 2023. “The Woman Who Fought the Texas Abortion Ban” The New York Times, December 14, 2023.

https://www.nytimes.com/2023/12/14/podcasts/the-daily/texas-abortion-ban.html.

Smith, Tracy. 2024. “Texas mother Kate Cox on the outcome of her legal fight for an abortion: "It was crushing."” CBS News, January 14, 2024. https://www.cbsnews.com/news/kate-cox-on-her-legal-fight-for-abortion-trisomy-18/.

The Texas Tribune. 2023. “Kate Cox's case tests Texas abortion laws.” December 13, 2023. https://www.texastribune.org/2023/12/13/texas-abortion-lawsuit/.

Varghese, Benson. “What is the Texas Abortion Law? (Dec 2023 Update).” Varghese Summersett. Accessed January 26, 2024. https://versustexas.com/texas-abortion-law/.