As the Texas Tribune aptly put it, “For the first time in at least 50 years, a judge has intervened to allow an adult woman to terminate her pregnancy.” The woman, Kate Cox, was forced to seek relief because Texas’s six-week ban makes an exception only to save the life of the mother. “At 20 weeks pregnant, Cox learned her fetus had full trisomy 18, a chromosomal abnormality that is almost always fatal before birth or soon after,” the Tribune reported. “Cox and her husband desperately wanted to have this baby, but her doctors said continuing the nonviable pregnancy posed a risk to her health and future fertility, according to a historic lawsuit filed Tuesday.”
The judge, confronted with a real person and a specific medical trauma that defied the ideological straitjacket right-wing lawmakers constructed, sided with Cox on Thursday. “The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” Travis County District Judge Maya Guerra Gamble held. On Friday night, however, the Texas Supreme Court stepped in to order a stay of Gamble’s ruling, throwing Cox into limbo again.
Whatever the eventual outcome, the lower court’s finding that strict application of the law would defy the interests of justice and simple humanity will reverberate throughout the country in innumerable situations. What about a woman whose ectopic pregnancy puts her health at risk, or a “normal pregnancy” that has dire health consequences for a woman with high blood pressure? What about a 12-year-old rape victim who might suffer permanent injury if forced to carry the rapist’s fetus to term?
There are hundreds upon hundreds of situations involving fact-specific medical complications for a pregnant woman. These cannot, without violating our fundamental sense of justice and decency, be predetermined by a bunch of politicians (mostly White, mostly male and many medically illiterate) without regard to the wishes of the woman involved.
None of this should detract from the rights of any woman to decide with her doctor for reasons she deems fit (e.g., lack of resources, age, other children, emotional turmoil) to end a pregnancy. But it does underscore that a ban that strips virtually all reasons for an abortion is a cruel, inhumane affront to women.
The Texas case has far-reaching ramifications. Any state ban presents doctors, patients and judges with an untenable decision: Violate the law, or violate the essential humanity and well-being of a woman? Voters, who have approved an unbroken string of seven abortion measures (the latest in Ohio) on state ballots and who tell pollsters in higher numbers than ever that they support abortion rights, know this basic truth.
Republicans, still in denial about the overwhelming unpopularity of their position and the handicap it places on their candidates, likely will confront this issue in virtually every race up and down the ballot. Democrats who leaned into the issue in 2022 and 2023 won handily. They show no inclination they will hold back in the 2024 elections.
At the presidential level, where GOP candidates keep touting a national ban, abortion might again be a decisive issue. President Biden’s campaign certainly believes so. “This story is shocking, it’s horrifying, and it’s heartbreaking — it’s also becoming all too commonplace in America because of Donald Trump,” Biden’s campaign said in a written statement after the Texas decision. “As Trump proudly brags, it was his Supreme Court picks who provided the deciding votes to overturn Roe v. Wade, allowing Republican extremists across the country to pass draconian bans that are hurting women and threatening doctors.” The campaign reiterated that if “Trump or other Republicans running for president get to the White House, they will try to ban abortion nationwide and the dystopian reality that women like Kate Cox in Texas are facing could be the reality everywhere.”
Supreme Court Justice Samuel A. Alito Jr. sneered in his majority opinion that reversed nearly 50 years of abortion rights precedent, “Women are not without electoral or political power.” Neither are men, who also support abortion rights. Moreover, if Dobbs attempted to get the courts “out of” the abortion issue, it has failed miserably.
To the contrary, bans have opened a Pandora’s box of litigation as doctors, courts and women try to make sense of laws ill-suited to determine medical decisions. Courts will be more deeply involved than ever as vague and unworkable laws come before them and as women such as Cox seek refuge in the courts. Dobbs has only enmeshed courts more deeply in difficult health-care decisions.
As abortion rights activists predicted, Republicans remained trapped in a dilemma of their own making. Having catered to extreme antiabortion forces and backed extreme and unworkable abortion bans in a slew of states and nationally, they cannot retreat from their stance without infuriating their base. Seeing the political wreckage in the wake of Dobbs, they are unable to step away from a policy that is wildly out of step with a large majority of Americans. They should prepare to reap the political whirlwind in 2024.
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