On Monday night, the Texas Supreme Court docket dominated in opposition to Kate Cox, a girl who says she is “at excessive threat for extreme problems threatening her life and future fertility” except she has an abortion. The opinion, which purports to put out when a affected person who wants an abortion to guard them from catastrophic well being penalties could obtain one in Texas, reads like one thing out of a Franz Kafka novel.
(Cox fled Texas to acquire abortion care in one other state, however the state Supreme Court docket’s opinion will apply to different sufferers who obtain an analogous analysis.)
The insidious factor concerning the court docket’s transient opinion on this case, which has the uninformative title In re State of Texas, is that, at first look, the opinion seems to be protecting of sufferers like Cox.
The opinion says that Texas regulation “has delegated to the medical — somewhat than the authorized — occupation the choice about” when a specific affected person has a situation which justifies performing a medically vital abortion. “If a physician, utilizing her ‘cheap medical judgment,’ decides {that a} pregnant girl has such a situation, then … Texas regulation doesn’t prohibit the abortion.”
That certain appears like excellent news for abortion suppliers and for abortion sufferers, a minimum of within the restricted circumstances the place the affected person has a critical medical situation that have to be handled by an abortion. Nevertheless it’s a lure.
It’s a lure as a result of the court docket denies Cox’s physician, Damla Karsan, the one factor she wants to securely deal with her affected person: a court docket order guaranteeing that Karsan can’t be prosecuted or sued if she performs a medically vital abortion on her affected person.
The Texas Supreme Court docket, which is made up solely of Republicans, claims that “the regulation leaves to physicians — not judges — each the discretion and the accountability to train their cheap medical judgment.” However, with no court docket order forbidding the state from punishing Karsan for exercising that judgment, the physician dangers horrific authorized penalties if she treats her affected person.
Final Thursday, after a Texas trial choose granted Cox the court docket order she must acquire a lawful abortion in Texas — though solely on a brief foundation — Republican state Legal professional Normal Ken Paxton despatched a menacing letter to the hospitals the place Karsan practices. The trial choose’s order, Paxton claimed “won’t insulate you, or anybody else from civil and legal legal responsibility.” The letter goes on to threaten legal prosecutions in opposition to Karsan and in opposition to any hospital the place Karsan performs an abortion.
Nor did it cease there. The letter additionally means that Karsan may very well be sued underneath SB 8, Texas’s notorious bounty hunter regulation, which allows personal residents to sue and gather bounties from abortion suppliers. And it claims {that a} hospital that permits Karsan to carry out an abortion on Cox “could also be responsible for negligently credentialing the doctor and failing to train acceptable skilled judgment.”
Solely a everlasting court docket order forbidding these kinds of prosecutions and lawsuits may have neutralized Paxton’s threats. And solely such a everlasting order may have given Karsan and different medical suppliers the safety they should carry out medically vital abortions with out fearing that they are going to be impoverished or imprisoned.
But the state Supreme Court docket denied this order based mostly on the thinnest of pretexts.
Texas is working a Jim Crow authorized technique in opposition to ladies like Kate Cox
In his 1965 speech proposing the Voting Rights Act, President Lyndon Johnson warned of the ways Southern states would use to stop Black voters from registering. A Black one who needed to register to vote “could also be disqualified as a result of he didn’t spell out his center title” or “as a result of he abbreviated a phrase on the appliance.”
The concept was to lock Black residents out of the poll field by requiring them to adjust to unpredictable calls for that they use very exact phrases.
The Texas Supreme Court docket is utilizing very comparable ways within the Kate Cox case. The court docket concedes that Texas regulation permits a doctor to carry out an abortion when “within the train of cheap medical judgment” they decide that their affected person is “vulnerable to dying” or faces a “critical threat of considerable impairment of a significant bodily perform except the abortion is carried out.” However then it refuses to implement this regulation as a result of Karsan didn’t use the correct phrases.
Particularly, the Court docket faults Karsan for saying in court docket filings that she “has a ‘good religion perception’ that Ms. Cox” is legally entitled to an abortion, somewhat than stating that she made a “cheap medical judgement” that Cox is legally entitled to an abortion. It’s the type of hair-splitting that might have made George Wallace proud.
The court docket’s opinion solely appears extra absurd while you learn what Karsan truly mentioned in these court docket filings. Amongst different issues, Karsan says that it’s her:
good religion perception and medical advice that the Emergent Medical Situation Exception to Texas’s abortion bans and legal guidelines permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening bodily situation aggravated by, brought on by, or arising from her present being pregnant that locations her vulnerable to dying or poses a critical threat of considerable impairment of her reproductive features if a D&E abortion isn’t carried out.
So Karsan was fairly clear that it was her cheap medical judgment that Cox should obtain an abortion to save lots of her life or to stop different well being penalties described in Texas’s abortion regulation. She merely didn’t use the magic phrases “cheap medical judgment.” Apparently that’s enough purpose to disclaim Cox an abortion in Texas.
No physician will really feel protected performing an abortion underneath these circumstances. The state’s prime regulation enforcement officer threatens them with jail and monetary wreck. The state Supreme Court docket sits on instances for days earlier than figuring out whether or not a affected person, who may have an abortion instantly to save lots of their life, may very well obtain that care. After which the court docket will deny aid as a result of, it claims, the affected person’s physician failed to make use of the correct magical phrases.
We’ve seen these sorts of authorized ways earlier than. It’s the similar tactic that Southern courts used to disenfranchise Black voters as a result of they couldn’t depend the variety of bubbles in a bar of cleaning soap.
