Hard cases make for bad legal journalism, especially in a politically charged atmosphere. So it is proving in the case of Kate Cox. Her unborn child was diagnosed with trisomy 18, which, given current U.S. medical practices, usually leads to death in the womb or in the first year after birth. If she carried the baby to term, she would have to have her third C-section, possibly compromising her ability to have another baby in the future. (In the lawsuits over this case, groups favoring looser abortion laws pointed to evidence that 0.9 percent of mothers had to have hysterectomies after a third C-section.) She instead sought an abortion in Texas, where she lives.
Texas law allows abortions when the mother “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.” It does not allow abortions based on major fetal abnormalities. The doctor who joined Cox’s lawsuit believed that she should be able to have an abortion, but would not say that in her reasonable medical judgment one was needed to save her life. Instead, the complaint alleges that “if the Plaintiffs receive a temporary restraining order from this Court saying that Ms. Cox’s abortion is authorized by Texas law, Dr. Karsan may be able to provide her with a D&E abortion” (emphasis added). It adds that the doctor “has met Ms. Cox, reviewed her medical records, and believes, in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox.” The court was thus not given adequate evidence to conclude that an abortion would qualify for the medical exemption, but it left open the possibility that a doctor actually giving her a full examination might come to a different, reasonable medical judgment. Cox went out of state to abort the baby.
With politicians and journalists falsely claiming that Cox had been denied a life-saving abortion and that her doctor’s medical judgment had been overridden by the government, the state supreme court nonetheless issued an opinion attempting to clarify the state of the law. It addressed a common misunderstanding, explaining that the law does not require a threat to a mother’s life to be imminent for a doctor to perform an abortion. That misunderstanding is sufficiently widespread to have caused delays in medical treatment. The court also explained that the relevant judgment is a medical rather than a legal one: A doctor examining Cox would have been able to abort the baby without getting any advance approval from a court if she thought Cox’s life was threatened. If the doctor’s judgment was reasonable and genuine, the law would protect it.
The “reasonable medical judgment” standard is not a new one; it is customarily how courts and juries evaluate medical malpractice claims, including in the context of obstetrics. To the extent that the issue is not the reasonableness of the doctor’s medical judgment but the clarity of the law, the supreme court of Texas offered its view that both the Texas Medical Board and the state attorney general were empowered to offer more guidance to doctors. They, and their counterparts in other states, should do so.
The court is obviously correct in its reading of Texas law. The law, in our judgment, is also right in thinking that even human lives with limited prospects should not be deliberately taken — although we also respect the prudential judgment of other states that, in deference to public opinion, have placed such exceptions into their laws against abortion. Disagreement with the Texas law is, however, no excuse for misrepresenting it. Texas allows abortion when a doctor reasonably judges it necessary to address a mother’s life-threatening physical condition. That’s what the law says, and what the state’s supreme court just affirmed.