A Landmark Decision Raises Concerns Over Abortion-Ban Exceptions
In a historic ruling, the Texas Supreme Court has declared that Kate Cox, a woman 20 weeks pregnant with a fetus with trisomy 18, a fatal abnormality, cannot legally seek an abortion in her home state. Cox had resorted to petitioning for a court-ordered abortion, which was initially granted by the lower court. However, Texas Atty. Gen. Ken Paxton appealed the decision and threatened legal action against local hospitals and Cox’s doctor if the procedure took place. The Texas Supreme Court swiftly overturned the lower court’s ruling, citing a lack of exception for fatal fetal abnormalities in the state law. As a result, Cox was forced to travel out of state to terminate her pregnancy.
The Complexities of Abortion-Ban Exceptions
Cox’s case highlights the perplexing and contentious nature of abortion law since the landmark Dobbs vs. Jackson Women’s Health Organization ruling overturned Roe vs. Wade in 2022. The issue of abortion-ban exceptions has become particularly difficult to navigate. The intricate nature of these exceptions, combined with the current antiabortion agenda, has led to a troubling reality: present-day abortion-ban exceptions fail to adequately protect patient health, regardless of how they are interpreted or the intentions behind their enactment.
A History of Contention
Historically, when states began criminalizing abortion in the 19th century, bans typically included exceptions for the life of the patient. In the 1960s, additional exceptions were introduced to account for cases of sexual assault, incest, fetal disability, and certain health risks. However, even these exceptions proved to be contentious and unworkable. Prosecutions were rare until the 1940s and 1950s, allowing physicians to exercise discretion in determining genuine threats to patients’ lives. As prosecutions increased, hospitals and doctors raised the bar for legal abortions to protect themselves from criminal liability. This left patients without resources or connections at a significant disadvantage, forcing them to convince physicians of the severity of their circumstances.
The Troubling Reality of Post-Roe Abortion-Ban Exceptions
The current generation of abortion-ban exceptions presents even more grave challenges. Legislators who passed “trigger bans” before Dobbs or subsequent bans have often authorized harsh punishments for doctors and individuals supporting women seeking abortions. Some of the language used in these bans originates from antiabortion groups concerned that any exception could be exploited as a loophole for unrestricted abortions. This includes the fear that exceptions for sexual assault may lead to false accusations or that mental health risks could be manipulated to obtain legal terminations. The new bans seek to eliminate physician discretion and even mandate that doctors prove their innocence rather than requiring prosecutors to establish guilt.
Protecting Fetal Life at the Expense of Women’s Health
Notably, prominent antiabortion figures oppose exceptions on principle, as they view the fetus as a rights-holding person. Therefore, they argue that no exception can be justified if the unborn child is treated as equal under the law. Although Texas’ ban on abortions presents almost insurmountable barriers, it is seen as a compromise by those opposed to abortion. In essence, the primary goal of these new bans is to protect fetal life, and exceptions serve more to deter patients deemed undeserving, rather than safeguarding women’s health.
A Growing Legal Battle
Cox’s lawsuit is just one of many attempts to clarify or challenge abortion-ban exceptions. In Kentucky, a class-action lawsuit has been filed seeking permission for abortions. Lawsuits in Texas, Tennessee, and Idaho argue that if state exceptions cannot be broadly interpreted, then the laws themselves are unconstitutional. Courts in some states have already addressed the constitutionality of specific exceptions, with more cases likely to follow.
Patients on the Losing Side
Regardless of the outcome for plaintiffs like Cox, a clear message resonates from these cases. The exceptions brought into effect by Dobbs do not operate in the way many Americans would expect and may be designed to be ineffective for patients. When the state’s interest in fetal life clashes with the real health threats faced by women, patients will invariably find themselves on the losing side.
Mary Ziegler, a law professor at UC Davis and author of “Roe: The History of a National Obsession,” provides valuable insight into these ongoing legal battles surrounding abortion-ban exceptions.
