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Delaney CoyneDecember 21, 2023
Kate Cox, seen in an undated photo, is the 31-year-old woman from the Dallas-Fort Worth area who asked a court for an order allowing her to get an abortion at 21 weeks under the medical emergency exception to Texas' near-total ban on abortion.  (OSV News photo/courtesy Katie Cox handout via Reuters)

Kate Cox, a 31-year-old mother of two from Austin, Tex., was thrilled to learn she was pregnant—she and her husband were trying for a third. That joy turned to devastation when, about 20 weeks into her pregnancy, test results showed that her baby was at high risk of trisomy 18, a genetic condition with a high likelihood of stillbirth or miscarriage. She tried to remain hopeful about her daughter’s prognosis: “I kept thinking, maybe the early tests are wrong,” Ms. Cox wrote in a piece for the Dallas Morning Herald in early December. “Maybe she will have a really nice life in a wheelchair.”

But at weekly appointments with a maternal-fetal medicine specialist, ultrasounds revealed significant complications. The difficult pregnancy sent Ms. Cox to the emergency room several times. Ms. Cox’s specialist told her that the baby was likely to die in utero, be stillborn or live for at most one week, and that Ms. Cox risked serious complications were she to carry the pregnancy to term.

On Dec. 5, Ms. Cox filed a lawsuit asking the court to give her permission to have an abortion. Her legal plea to receive an abortion and the subsequent rejection of that plea by the Texas Supreme Court underscore the delicate interplay between medical necessity, legal constraints and ethical concerns within the evolving post-Dobbs reality in the United States.

Ms. Cox’s legal complaint noted that amniocentesis testing confirmed trisomy 18. Already, this was a devastating diagnosis—at least 95 percent of babies diagnosed with trisomy 18 don’t survive full term due to complications, according to the Cleveland Clinic. But not all trisomy 18 cases are created equal. Steve Calvin, a pro-life OB/GYN and maternal-fetal health specialist who serves on the Health and Human Services Secretary’s Advisory Committee on Infant and Maternal Mortality, said that even though some people with trisomy 18 survive until adolescence and there are options for perinatal hospice for families who do carry to term, it is true that Ms. Cox’s daughter had a particularly severe case, and she likely would not have lived a long life.

Kate Cox's case underscores the delicate interplay between medical necessity, legal constraints and ethical concerns within the evolving post-Dobbs reality in the United States.

For Ms. Cox’s daughter, the condition manifested in “multiple serious conditions including: a single artery in the umbilical cord; a protrusion from the abdomen, likely an umbilical hernia; a twisted spine likely due to spinal bifida, a neural tube defect; clubbed or ‘rocker bottom’ foot; intrauterine growth restriction; and irregular skull and heart development,” according to a petition filed by the plaintiffs in the case. Even with treatment, explained Dr. Calvin, the prognosis for Ms. Cox’s baby would have been “pretty dismal.… It wouldn’t be [a case] where you say it’s clearly lethal, but it’s really bad and it’s probably not going to end well.” Had Ms. Cox continued with her pregnancy, her daughter would have likely died in her womb, been stillborn or died shortly after birth.

But a tragic diagnosis for a child in utero is not a legally sufficient reason to get an abortion in the state of Texas. Those exceptions are only granted to save the life of a mother, as determined by reasonable medical judgment. Nor is a likely fatal diagnosis for an unborn child a sufficient moral reason for obtaining an abortion in traditional Catholic moral theology. The church “refuses to agree that killing the helpless, involuntary and even perhaps maimed human being is ever a human way out” and believes in the “indestructible value of the human person regardless of his mental or physical condition, regardless of the circumstances,” the prominent moral theologian Richard McCormick, S.J., wrote in a 1965 article for America. “The truly human way is to protect the interests of all involved.”

But despite the focus in most media coverage on the gravity of the trisomy 18 diagnosis, the risks that the law in Texas evaluates do not involve the predicted quality or length of life for Ms. Cox’s unborn child—but rather the threat that complications in her pregnancy pose to her health.

Christopher Kaczor, a professor of philosophy at Loyola Marymount University, noted in an email to America that “all people of good will have an obligation to promote the common good by their actions, including the laws they support.” The protection of human life, “before or after birth,” is the “foundation of the common good,” he argued. At the same time, Catholic teaching considers abortion to be morally permissible if the intention is to save the life of the mother, Mr. Kaczor said. He pointed out that “all states, even strong pro-life states, make abortion to save the life of the mother legally permissible.”

Under Texas law, abortion is only legal when “in the exercise of reasonable medical judgment, the pregnant female…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 translating this broad moral and legal language into the particular, probability-based world of medical decision-making presents a minefield of confusion.

“I never thought I would ever want or need an abortion, but this is a medical decision,” Ms. Cox told The New York Times. Ms. Cox’s elevated glucose levels and other underlying conditions put her at risk of gestational hypertension, gestational diabetes, fetal macrosomia, cesarean delivery, post-operative infections and anesthesia complications. Since Ms. Cox gave birth to both of her other children via cesarean section, her physicians told her that were she to carry to term, she would likely need to deliver this baby via C-section, which could endanger Ms. Cox’s ability to carry another child in the future. Dr. Calvin said that Ms. Cox’s case was “definitely a gray zone” as to whether or not her life was in danger. Although he was skeptical of how her case was being championed by pro-choice activists, Dr. Calvin ultimately thought that the court should have deferred to medical expertise.

Damla Karsan, M.D., a Houston-based OB/GYN, testified that it was her “good faith belief” that Texas law permits an abortion in Ms. Cox’s circumstance, and on Dec. 7, District Court Judge Maya Guerra Gamble granted a temporary restraining order allowing Ms. Cox to have an abortion.

If judges, lawmakers and voters hope to ever effectively balance the medical, legal and moral issues around abortion in high-risk pregnancies, it seems it will be necessary to face the gray.

The Texas Supreme Court eventually struck that district court ruling down, holding that the law does not allow abortions on the basis of “good faith belief.” Instead, their standard is “reasonable medical judgment.” Cathleen Kaveny, the Darald and Juliet Libby Professor of Law and Theology at Boston College, described this distinction in a phone interview for America. Reasonable medical judgment relies on a professional standard, she said: “It’s in accordance with the best practices of the medical profession.… It’s more of an objective standard.” Under this standard, prosecutors can bring in an expert witness and argue that the doctor is not exercising reasonable medical judgment in allowing an abortion.

But the standard of good faith judgment, which is more subjective, requires a much different burden of proof: “In the law, [subjective judgments] are very hard to overcome. You pretty much have to show that somebody is lying or is deceptive or didn’t do the basic amount of work to come to that judgment,” said Ms. Kaveny.

From a legal perspective, it seems clear: Medical judgments made in good faith are far easier to justify legally than those made under the standard of reasonable medical judgment. But applying those legal standards to medical and moral choices is not easy or obvious. Even when the same terms are used, their meanings may differ. As Nathaniel Blanton Hibner, a director of ethics for the Catholic Health Association of the United States, told America: “The term ‘abortion’ has many different connotations in this discussion. The legal use does not match the medical use, and neither one matches the moral definition.” What is clear to lawyers may not resolve the questions doctors face.

When I asked Dr. Calvin what he made of the distinction between good faith and reasonable medical judgment, he told me: “I don’t think there is one. It’s impossible…. You can basically make a story—no matter what—that falls on one side or the other of these arguments.”

Other signs point to the confusion medical providers face when navigating the post-Dobbs landscape and its potential chilling effect on emergency care. Polling from the Kaiser Family Foundation found that 55 percent of OB/GYNs practicing in states with abortion bans report that their ability to practice within the standard of care has worsened. According to Mr. Hibner: “Many physicians lack complete confidence in knowing what the law permits or prohibits.… Confusion can lead providers to take a more conservative route so as to not accidentally break a law and risk legal action.” If they do accidentally break the law, penalties can be severe—in Texas, doctors convicted of performing an illegal abortion can face a prison sentence of up to 99 years in prison, fines of at least $100,000 and the loss of their medical license.

Another case in Texas courts, Zurawski v. Texas, was brought by over 20 women who allege that they were “denied necessary and potentially life-saving obstetrical care because medical professionals throughout the state fear liability under Texas’ abortion bans.” The lead plaintiff, Amanda Zurawski, was sent home by doctors to wait after her water broke at 18 weeks, even though Ms. Zurawski faced a high risk of infection and her daughter, Willow, was very unlikely to survive. Three days later, Ms. Zurawski had become septic. While doctors narrowly saved Ms. Zurawski’s life, Willow died. Ms. Zurawski suffered severe scarring on her uterus and fallopian tubes. One fallopian tube remains permanently closed, compromising Ms. Zurawski’s ability to become pregnant in the future.

Ms. Zurawski’s case is particularly confounding because the letter of the law does not require imminence—that is to say, if she is suffering from a deadly medical condition, Texas does not require that the mother be about to die before a doctor can rely on the medical exception and perform an abortion. But the letter of the law’s deference to medical judgment does not eliminate doctors’ confusion about the objective standards by which the law would determine if a condition is life-threatening or their fear of liability for performing an abortion the court might later determine was illegal.

Courts and politicians do not have the medical expertise to make these determinations, so many, including the Texas Supreme Court, hope that this uncertainty might be alleviated by state medical boards issuing more specific guidance that doctors can point to while determining whether a condition is life-threatening. Ms. Kaveny pointed to the end of the Texas Supreme Court’s opinion: “The courts cannot go further by entering into the medical-judgment arena. The Texas Medical Board, however, can do more to provide guidance to any confusion that currently prevails.” As Ms. Kaveny reads it, “the court is pretty much begging the Texas Medical Board to clarify conditions under which the law’s requirements are met and conditions when it's not.”

In the absence of stronger guidance, the evaluation of medical decision-making becomes a matter of prosecutorial discretion. “I think the problem is not about what the right thing to do is, but about what a prosecutor will think the right thing to do is,” said Ms. Kaveny. And after 50 years of culture wars on abortion, even the most tragic cases, like Kate Cox’s, become fuel for pro-life and pro-choice advocates to repeat decades-old arguments. Shouting past one another serves the political ends of both camps and drives voters to the polls, but it offers little by way of moral clarity and fails to address a case like Ms. Cox’s with humanity and attention to the tragedy at its center.

Shouting past one another serves the political ends of both camps and drives voters to the polls, but it offers little by way of moral clarity and fails to address a case like Ms. Cox’s with humanity and attention to the tragedy at its center.

The ardently pro-life Dr. Calvin argued that even though there are indeed instances in which a doctor may exaggerate how life-threatening a condition is, “those of us who are life-affirming try to analyze every case and call into question every judgment and every prognosis. It’s not helping.” In a political context where most Americans support access to abortion under limited circumstances, this hard-line strategy has prompted pushback from voters who fear the consequences of highly restrictive abortion laws.

Ms. Kaveny pointed to this effect when explaining pro-choice wins in ballot measures across the country. She explained that many voters, even pro-life ones, think, “We have to choose, and if our only choice is a binary choice between too much permissiveness or too much restriction, we're gonna go with too much permissiveness.”

Dr. Calvin argued that the political zeitgeist points to the fact that pro-lifers need a new narrative, one that is better suited to this post-Dobbs reality. “We’re fighting an onslaught, and I would much rather be known for what we’re for than for what we’re against,” he said.

Building a culture of life need not be an effort confined to state legislatures and courtrooms. It should include the witness of perinatal hospice, which allows for families facing tragic diagnoses to continue their pregnancy knowing their child will receive dignified care throughout their all-too-short life. Pro-life efforts can also include collaboration with unlikely allies, even though the culture war has driven a wedge between us. Dr. Calvin pointed out that in his work on the H.H.S.’s advisory committee, he works with many people he disagrees with on abortion, but is still able to make progress toward life-affirming care for women and babies: “We all agree with better care for pregnant women—you know, respectful care—and minimizing interventions that are not necessary.”

Pro-life advocates might also focus their time and attention on issues likely to persuade, said Dr. Calvin, like protecting fetuses with Down syndrome. (The termination rate after a prenatal Down syndrome diagnosis is 67 percent in the United States.) There is room to find common ground and promote life-affirming care, but this requires us to step out of the culture war and listen to each other.

For almost 50 years under Roe, pro-life and pro-choice advocates were able to argue in black-and-white terms. But if judges, lawmakers and voters hope to ever effectively balance the medical, legal and moral issues around abortion in high-risk pregnancies, it seems it will be necessary to face the gray.

More: Abortion

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