Fri. Jun 21st, 2024

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So much of the national conversation this week has been about Kate Cox, the 31-year-old mom who had to flee Texas to have an abortion to end a doomed pregnancy as the state’s Supreme Court slowly decided to substitute its judgment for her doctor’s advice.

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But what’s been missing from most of the talk about this case is this reality: Texas has at least three separate laws on the books designed to make getting an abortion nearly impossible. Those overlapping, vague statutes not only create one of the most restrictive environments in the country for reproductive rights, but shaped Cox’s case in ways that many following her ordeal likely missed. It also shows how even minor details can matter, especially when judges have political bents and time is an urgent component.

To understand the lay of the land that Cox, her family, and her doctor were facing, we need to look at what Texas lawmakers put in place before Dobbs, the 2022 case that invalidated a half-century of protections enshrined in Roe v. Wade. A year earlier, Texas passed a so-called “trigger ban” that would outlaw abortions should the Supreme Court overturn Roe. We’ll call this Ban A. It serves up a felony life sentence for health care providers who perform abortions and a $100,000 fine.

A second 2021 law—let’s call it Ban B—was a novel attempt at effectively banning most abortions in Texas without waiting for the Supreme Court to give permission, and it largely succeeded. That law runs along civil lines by deputizing neighbors and strangers to enforce it through lawsuits. Under Ban B (also known as S.B. 8), even an Uber driver who ferries a customer to a place where abortions are performed can be civilly charged. Critics have labeled it a Bounty Law. Yet unlike Ban A, Ban B isn’t a complete ban, though it functions as one in practice. It blocks most pregnant individuals from seeking an abortion after about six weeks, or when lawmakers decided there exists a beating “fetal heart”—a term doctors do not use, because a fetus at that point does not yet have a heart. (What abortion opponents describe as a heartbeat at that stage is actually the electrical impulses developing cells start to emit.)

Finally, there is Ban C, which are the pre-Roe laws in Texas, dating back to the state’s first criminal code of 1857. At that time, the state had a ban on abortion—including the funding of it—except in cases when the pregnant person’s life was at risk. The penalty? Five years in prison for those providing the care. Texas officials have asserted that those laws snapped back into effect when Roe fell.

All three abortion bans include language that provides exceptions when the health of the pregnant person is in question, although the specific definitions and conditions are different and vague. (None, it also should be noted, holds the pregnant party criminally liable.)

This all created a legal and medical minefield for Kate Cox, the Dallas-area mother of two who has been public about wanting, in her words, “a large family.” When Cox and her family learned the fetus she was carrying had tested positive for a genetic condition that almost always results in a miscarriage or stillbirth, she took action. She had already been to the hospital four times in two weeks seeking emergency attention and worried what this troubled pregnancy would mean for her future potential; her doctor agreed that an abortion would leave her with the greatest potential for a pregnancy at a future date.

But Cox’s situation ran afoul of Ban B, the law that bans most pregnancies after about six weeks in the name of the “fetal heartbeat” threshold. And remember, under Ban B, anyone who helps Cox get an abortion could be liable for a civil lawsuit by a complete stranger. It also, of course, might have been considered an illegal abortion under Ban A, the trigger ban, meaning her doctor could be jailed for life and fined at least $100,000. Or maybe just Ban C, meaning only five years in jail.

All of this explains why not only Cox, but her husband, and her doctor wanted to have her standing resolved and some protections put in place for her future, and theirs.

A district judge agreed with those concerns last week, allowing Cox to move forward with receiving an abortion.

Then Texas Attorney General Ken Paxton lept to action. He asked the Texas Supreme Court to step in and enforce the state’s anti-abortion bans—all of them. For good measure, he gave notice to area hospitals and doctors that they would face felony prosecutions and civil penalties if they helped Cox. 

The state Supreme Court—all nine elected Republicans, mind you—heard the case and sided on Monday with Paxton, who said Cox’s case didn’t meet the medical exception. They said the proper standard for allowing the termination of a pregnancy, then at 20 weeks, was enshrined in law as a “reasonable medical judgment.” Cox’s doctor, by contrast, said she held a “good-faith belief” that Cox met the exception.

The court, however, said the “good-faith belief” was incompatible with the law’s standard of “reasonable medical judgment” that Cox faced a life-threatening condition. (Of course, neither are defined in any of the state’s bans, giving hair-splitting Paxton a win because the doctor didn’t use the magic words.) The justices then entered Kafkaesque territory—implying that if an abortion was actually needed, it would have already been done, and asking the state medical board for guidance—advice, of course, that doesn’t change the law’s text. 

Given the GOP’s partisan monopoly in Texas, the outcome was largely expected. So much so that Cox had already fled Texas to receive an abortion in another state while awaiting the ruling.

Stories like Cox’s are just the tip of the iceberg in a post-Dobbs world. Twenty one states have banned abortion or restrict the procedure earlier in pregnancy than Roe allowed. Texas went from reporting more than 50,000 abortions in 2020 to 34 recorded through September of this year, according to state health statistics. Polling shows Texans don’t love the new limits, but Republicans dominate the political and judicial landscape. And a conservative U.S. Supreme Court seems completely fine with such restrictions. Even before Dobbs, they had blessed Texas’ legally thorny efforts with Ban B, creating a model that other red states have followed.

But the developments this week speak to the problems when laws lack definition and are left in the hands of partisan interpreters. Talk to anyone who reads—or writes—laws for a living, and there are two clear camps in state capitol buildings or here in Washington: the detail-obsessed nitpickers who want the legislation on their desk to define all of its terms or at least point to previously passed definitions; and the ambivalent regulationists who are happy to let bureaucrats frame the scope through rulemaking. Lacking definitions can give wide wiggle room to folks like Cabinet secretaries, agency administrators, and, yes, even judges. Incomplete legislative text yields imprecise readings and incomplete legal recourse for situations like the one facing Cox.

And, in that gray area, abortion foes can have tremendous power in leaving things vague, especially in a state when there are at least three anti-abortion laws in play. It provides for loopholes that can be exploited by anyone with enough imagination, nitpickery, and endurance. And it’s exactly the thing that specific-minded folks wandering legislative hallways spend their nights obsessing over. Because if there had been some specificity in Texas’ law, and had any of the bans grappled with the other ones still on the books, Cox would not have been forced to flee in a high-profile case that, in most states, would have been handled in the privacy of the doctor’s office. So the next time either party complains about the size of legislation—so many pages!—understand that a good chunk of those pages are probably defining terms that really, really matter.

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