Texas High Court’s Abortion Denial Amplifies Medical Uncertainty

The Texas Supreme Court’s decision to deny a Dallas-area woman’s access to an emergency abortion further obscures abortion providers’ medical decision-making in states with restrictions on the procedure, physician groups and health lawyers say.

The top court in the Lone Star State ruled unanimously Dec. 11 to vacate a temporary restraining order that authorized a doctor to perform an abortion on 31-year-old Kate Cox, whose doctors said her fetus had a fatal diagnosis of trisomy 18, a genetic condition also known as Edward’s Syndrome. The court argued Cox’s doctor failed to show Cox had a “life-threatening physical condition,” or that “reasonable medical judgment” justified giving an abortion, which are the standards to grant an emergency exception under Texas’ total abortion ban.

Texas is one of 27 states with total bans or gestational limits on abortion—some of which have put so much increased logistical and financial pressure on abortion providers that they’ve closed down clinics or have chosen to relocate to states with fewer restrictions. The Texas Supreme Court is also considering arguments in a legal challenge to the state’s abortion ban from women who said they had nonviable pregnancies but were denied an abortion.

Abortion providers and analysts say the Dec. 11 ruling exacerbates the legal conundrum doctors in Texas and other states with abortion bans have faced since the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization—weighing their own medical judgment with the threat of criminal prosecution or civil fines. The legal uncertainty will continue to push physicians to delay abortions out of an abundance of caution, thereby increasing health risks and forcing many to seek reproductive health care out of state, provider groups and lawyers say.

“With even less clarity than before, this decision will have a profound and lasting chilling effect on both patients who need and clinicians that provide abortion care,” said Molly Meegan, chief legal officer and general counsel at the American College of Obstetricians and Gynecologists.

‘Legally Precarious Position’

To legal analysts and abortion provider groups, the ruling attempts to give OB-GYNs a say in choosing the medical decisions that are best for their patients, while still questioning the reasons a physician gave for determining an emergency abortion was necessary.

The justices ruled the Texas law doesn’t “ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible.” But in the case of Cox, her doctor’s argument that she had “good faith belief” that Cox’s condition qualified her for an emergency abortion didn’t meet the state law’s standard of citing “reasonable medical judgment.”

This interpretation puts abortion providers in “a very legally precarious position,” said I. Glenn Cohen, a bioethics and health law professor at Harvard Law School who has signed on to amicus briefs in litigation over the abortion pill’s approval in the US.

An OB-GYN in Texas would “need to anticipate what a ‘reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved,’” and their “judgment as to that will be objectively assessed,” Cohen said.

Despite ruling on whether the exception applied in Cox’s case, the court called on the Texas Medical Board to “do more to provide guidance in response to any confusion that currently prevails.”

But the state medical board “is not a legal body that offers legal advice,” said Ghazaleh Moayedi, a Dallas-based OB-GYN and abortion provider who also serves as the board chair for Physicians for Reproductive Health.

“That’s what a court does,” Moayedi said.

The Texas Medical Board didn’t respond to a request for comment.

To Cohen, the ruling reveals the Texas court has “sort of double vision as to where its authority ends and physicians’ begins,” Cohen said.

“They both do not want to be in the business of making medical judgments and they are deeply suspicious of the physicians who provide abortions,” he said.

Out of Clinicians’ Hands

The Texas court’s decision leaves abortion providers in a nearly impossible situation that is limiting access to abortion care, analysts and provider groups say.

If Texas determines a doctor’s judgment is incorrect, health professionals risk first-degree felony prosecutions and fines of at least $100,000 per violation under the Texas abortion ban. Texas Attorney General Ken Paxton (R) said after the lower court’s restraining order that the decision didn’t “insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”

“To ask a doctor to weigh those risks while determining how to treat a patient with obstetrical complication is inappropriate and unacceptable,” Meegan said.

Paxton’s office didn’t respond to a request for comment on the ruling.

As other states also face similar questions on what types of emergencies qualify patients for abortion ban exceptions, physicians are “continuing to be scared, continuing to err on the side of denial, continuing to let people’s conditions worsen out of fear,” Moayedi said.

As a result, more patients are traveling out of state, said Veronica Jones, chief operating officer at the National Abortion Federation. The professional association for abortion providers released new data Tuesday from their National Abortion Hotline, which showed demand for travel assistance by abortion seekers remains consistently high more than a year after the Dobbs decision.

Cox said before the Dec. 11 ruling that she couldn’t wait any longer for the state high court’s decision and would be traveling out of state to receive abortion care.

Ultimately, courts across the country should allow physicians to make decisions on what’s best for their patients’ health and well being—without fear of retribution, Meegan said.

“These decisions are being taken out of the hands of the clinicians that are trained to treat complex and nuanced complications and patients that are bearing the risks and the consequences of the emergency,” she said.