I strongly support the right to abortion. But I believe that those on the other side are, for the most part, motivated by the sincere belief that abortion is the taking of a human life. And so, I try to write about this contested subject with respect for their views, and for the moral underpinning of their convictions.
Texas Attorney General Ken Paxton is an exception. He deserves no such respect, only condemnation for his unnecessary, inexplicable cruelty. No moral person — no person with true compassion for life — could be launched on Paxton’s current crusade against a Texan named Kate Cox.
Cox is a 31-year-old mother of two, about 20 weeks pregnant with a third, very much wanted. But the fetus has Trisomy 18, a severe genetic disorder. Some 95% of such pregnancies do not make it to term or are stillborn. Half of those born with the condition do not survive beyond the first week; 9 out of 10 die within the first year.
This is worse than heartbreaking; it is dangerous to Cox’s health and future fertility. Because she has had two previous Cesarean sections, Cox would have to have a third C-section because of the risk of uterine rupture. A repeat procedure would make it more difficult for her to carry a successful pregnancy in the future. Cox’s doctors have advised her and her husband that abortion would the safest choice to protect her ability to have more children.
“It is not a matter of if I will have to say goodbye, but when,” Cox has explained. “I do not want my baby to arrive in this world only to watch her suffer a heart attack or suffocation. I desperately want the chance to try for another baby and want to access the medical care now that gives me the best chance at another baby.”
But Texas has a “heartbeat” law: As long as the fetus has a heartbeat, Cox’s doctors have advised, they cannot perform the procedure for fear of criminal prosecution and other consequences. Cox and her husband went to court to contest this determination, citing a provision of the Texas law that provides for an exception to the abortion ban in situations that pose “a serious risk of substantial impairment of a major bodily function.”
On Thursday, the couple obtained a court order to allow the abortion to proceed — specifically, enjoining Texas from enforcing its abortion ban against Cox. “The Court finds that Ms. Cox’s life, health, and fertility are currently at serious risk,” Travis County District Judge Maya Guerra Gamble wrote. “The longer Ms. Cox stays pregnant, the greater the risks to her life.”
This should have been good enough for any human being with an ounce of compassion and common sense. Not for Ken Paxton. First, he issued a statement helpfully charting the ways around the court order — that while it applied to the state, it did not prevent private parties from suing (recall the Texas vigilante law, S.B. 8, which effectively stopped abortions in the state even before the U.S. Supreme Court overturned Roe v. Wade) or stop local district attorneys from acting.
If that wasn’t enough, the Republican Paxton dispatched a letter to three hospitals where Cox’s doctor has admitting privileges, warning them that the judge’s order would not protect them or their personnel against criminal or civil liability.
“We feel it is important for you to understand the potential long-term implications if you permit such an abortion to occur at your facility,” Paxton wrote. “We remind you that the [court order] will expire long before the statute of limitations for violating Texas’ abortion laws expires.”
In other words, care for your patient at your peril. Rely on a valid court order at risk of being jailed down the road. If you perform an abortion even under these extraordinary circumstances, Texas will come after you.
And for what earthly reason? We can disagree, fiercely, about whether women should be able to decide for themselves whether to continue unwanted pregnancies. But can we not agree that women with fetuses that are not viable, or women who are destined to lose the babies they so desperately want, should not be forced to risk their lives and health in service of … what? A disputed theological conviction about when life begins that elevates that theoretical life over the actual life of a woman suffering from sepsis?
Cox’s lawyers are before the Texas Supreme Court in a separate case seeking to clarify the scope of the emergency exception. When the case was argued last week, the state’s lawyer insisted that doctors’ exercising their best medical judgment wouldn’t be at risk of being prosecuted or sued.
“With allowing reasonable medical judgment, you avoid the possibility of getting it wrong and ending up in prison,” Texas Assistant Attorney General Beth Klusmann assured the court. “As long as your judgment is reasonable, you should be fine under this law.”
Now comes Paxton, Klusmann’s boss, to make clear that is not the state’s position at all. Not only can Cox’s doctor not use her judgment about what’s best for her patient, but she also can’t rely on a court order allowing her to do so. This isn’t regulating abortion — it’s terrorizing those who dare to perform the procedure and endangering the women who need it.
Reach Ruth Marcus at ruthmarcus@washpost.com. Distributed by The Washington Post Writers Group.
