Saturday, December 16, 2023

The Texas Legislature and courts have created a thicket of abortion laws that are almost impossible to navigate, as Kate Cox, mother of two, has learned

Kate Cox (NPR-Cox family)

The Texas abortion case of Kate Cox serves as a grim reminder that women long have struggled to control their own bodies in American society. Donald Watkins, longtime Alabama attorney and civil-rights advocate, compares the Cox case to Dred Scott v. Sandford, U.S. Sup. Ct. (1857), the case that held: "Any person descended from Africans, whether slave or free, is not a citizen of the United States, according to the U.S. Constitution."

Under the headline, "American Women: Once Again, Your Body Belongs to Them," Watkins writes:

American women, you have been here before. Once again, your body belongs to angry White men who exercise dominion and control over it. In many instances, you voluntarily submitted to this male dominion and control over your body.

You are back in the Land of Dred Scott -- a special place where women have no rights which White men are bound to respect. It took more than a hundred years to arrive back at this awful place in American  history, but you made it.

For women who pay no attention to American history, Dred Scott is an 1857 U.S. Supreme Court ruling that Blacks in America, whether freed or slaves, “had no rights which the White man was bound to respect.” Here is the exact context of this quotation from the Supreme Court's written opinion:

"[African-Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it."

So much for that business about the "Land of the Free." Watkins provides context regarding the Dred Sott decision and the place of women in the age of Kate Cox:

Like Blacks during the Dred Scott era, women in America had no rights that white men were bound to respect from the time the first colony was founded in Jamestown, Virginia in 1607 until the late 1870s, when a husband’s legal right to (a) beat his wife with a stick no thicker than his thumb, (b) pull her hair, (c) choke her, (d) spit in her face, (d) kick her about the floor, and (e) inflict upon her like indignities came to a fitting end through a series of landmark court cases around the nation.

Women did not get the right to vote until 1920.  Furthermore, a husband’s legal right to rape his wife did not end until 1979. A proposed Equal Rights Amendment to the U.S. Constitution died in 1982 when only 35 states ratified it (out of the 38 states needed to become law).

Today, women in America have legal rights on paper that are rarely enforced in the judicial system.   What is worse, women’s constitutional rights are being systematically stripped away from them, with impunity

The Kate Cox matter is the latest example of women being treated like second-class citizens in the U.S. What about specifics of the Cox case? NPR provides them

Texas' state Supreme Court issued an opinion with broad repercussions when it ruled against Kate Cox's petition to have a health-preserving abortion in her state. It did so even though Cox had already made the decision to leave Texas for an abortion because she felt she couldn't wait any longer. There's a lot to unpack in that opinion and the other legal challenge to the three overlapping abortion bans in Texas.

NPR answers some of the key questions surrounding the Cox case:

1. Who is Kate Cox and what happened to her?

Kate Cox, 31, lives in the Dallas area with her husband and two young kids. About 20 weeks into her third pregnancy, she learned her fetus has Trisomy 18, a genetic condition with slim to no chance of survival. She'd also suffered cramping and other symptoms, severe enough to send her to the emergency room multiple times in a two-week period.

Cox believed she was a good candidate for the narrow exception to the three overlapping abortion bans in Texas. That exception says abortion is allowed when the mother's life is threatened or when a pregnancy "poses a serious risk of substantial impairment of a major bodily function."

Although a district court judge granted the request, Texas Attorney General Ken Paxton immediately appealed it to the Texas Supreme Court. He also sent a warning letter, shared on social media, to the three hospitals where Cox might have had the procedure saying they would face penalties despite the lower court's permission. Now, the Texas Supreme court has put a temporary hold on that ruling, pending review.

2. Leaving Texas for an abortion is a legal option

Many who read the headlines that Kate Cox was fleeing the state to get an abortion thought that was against the law.

Texans can and do legally leave the state to get abortions, if they have the financial means. Many thousands of Texans drive hundreds of miles across the huge state or fly to states that allow abortions. Some Texas counties are trying to outlaw traveling through them for abortions, but it is not clear how those laws would be enforced.

Cox did not want to travel, as she wrote in an op-ed in the Dallas Morning News last week: "I am a Texan. Why should I or any other woman have to drive or fly hundreds of miles to do what we feel is best for ourselves and our families, to determine our own futures?"

3. It's about one abortion, but the implications are far wider

Although the Texas high court knew Cox was leaving the state, it didn't dismiss the case. Its seven-page opinion puts responsibility for these highly consequential choices on doctors.

The all-Republican court writes that the Texas legislature "has delegated to the medical – rather than the legal – profession the decision about when a woman's medical circumstances warrant this exception." 

The decision notes that Cox has a very complicated pregnancy and "tragic diagnosis." Despite this, the court goes on to say, "Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses." And it concludes by granting Paxton's request to throw out the lower court's ruling that would have allowed Cox to have an abortion legally in Texas.

"I think any regular person can look at her case and say, 'Well, surely Kate should qualify'" for an abortion, Cox's lawyer, Molly Duane of the Center for Reproductive Rights, told NPR's Morning Edition

4. Texas doctors face malpractice on one side, felony charges on the other

In court and in legal filings, Paxton's office has repeatedly argued that women with life-threatening pregnancies who did not get appropriate care in Texas can and should sue their doctors for malpractice.

At the same time, all of Texas's abortion laws target doctors who perform abortions with penalties. Doctors face life in prison, fines of $100,000 and loss of their medical license.

Watkins provides insights on the hurdles women face in complex legal and medical matters involving bodily autonomy:

Now, angry white men dictate what medical procedures women can have and what FDA-approved pills they can take.  These men, together with their subservient female accomplices, routinely threaten women and their doctors with criminal prosecutions over the medical procedures and pills they object to, even when women need the medical procedures to save their liives.

Of course, women have no say-so whatsoever in any matter involving the reproductive rights of men. Whether a man gets a vasectomy, or not, is nobody's business, and no government entity will ever regulate his personal medical choice in this regard. 

Likewise, whether a man takes Viagra, Cialis, Stendra, or whatever erectile dysfunction pills he needs to get it up is generally regarded as none of the government’s business. 

Furthermore, women have no say-so whatsoever in the decision of married male politicians in states where abortions have been banned to get their impregnated mistresses secret, on-demand, illegal abortions. Nobody discusses this unpleasant subject, even though many political friends and colleagues of the male paramour know about it.

This sad paradigm will not change until and unless women change it.  Instead of asking for gifts of jewelry, clothes, or a trip to some exotic port of call this Christmas, women should demand that their men give them the gift of "love and respect" as a Christmas gift. Often in life, the intangible gifts of "love and respect" are the hardest ones for men to give to the women they profess to love.

Time Magazine provides more insights under this grim headline: "That Texas Abortion Case Is Even Worse Than You Think":

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.

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.

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; 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.

Note; As we reported in May 2019, a number of gynecologists have stated there is no such thing as a "fetal heartbeat." From that post:

A group of high-profile gynecologists -- people who know a thing or two about the human biology related to pregnancy -- say "fetal heartbeat" bills tend to be based on medical ignorance and fraudulent use of the English language.The gist of their argument: At six weeks, there generally is no fetus and there is no heart; that makes it pretty difficult to claim there is a "fetal heartbeat." From a recent report at The UK Guardian:

“These bills present the idea that there’s something that looks like what you or a person on the street would call a baby – a thing that’s almost ready to go for a walk,” said Dr Jen Gunter, a gynecologist in Canada and the US who runs an influential blog. “In reality, you’re talking about something that’s millimeters in size and doesn’t look anything like that.”

That early in a pregnancy, Gunter said, an embryo does not have a heart – at least, not what we understand a human heart to be, with pumping tubes and ventricles. At six weeks, a human embryo throbs, but those tissues have not yet formed an organ, so the pulsing should not be confused with a heartbeat.

Notice Gunter's use of the term "embryo." That's because that's what it is at six weeks, not a fetus. Also notice that she says a "human embryo throbs" at six weeks. But those throbs are not heartbeats because there is no such organ:

It would be more accurate to call these bills “fetal pole cardiac activity” measures, said Gunter. "Though it doesn’t roll off the tongue, the term would capture the state of an embryo at six weeks, which appears more fish-like than human baby."

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