The sweeping restrictions on abortion that some states have imposed in the wake of the US Supreme Court invalidating Roe v. Wade means that some women have to go to court in order to get an abortion that should have been non-controversial. A judge in Texas yesterday issued a temporary restraining order against the state, thus permitting Kate Cox to get an abortion even though she was 20 weeks pregnant and thus exceeded the six-week limit in that state. Her baby had been diagnosed with trisomy 18, a condition under which it is not expected to live more than a few days outside the womb.

Kate Cox, who is 20 weeks pregnant, filed a lawsuit this week asking the court to temporarily block the state’s abortion ban, because she has been unable to get the procedure due to concerns of violating the law. Cox’s baby was diagnosed with trisomy 18 and is not expected to live more than a few days outside the womb, according to the suit.
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Cox has been to three different emergency rooms in the last month due to severe cramping and unidentifiable fluid leaks, according to her lawsuit. Cox has had two prior cesarean surgeries – C-sections – and, the suit said, “continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy.”

Cox’s gynecologist could not perform an abortion under Texas law.

Attorneys for the state argued Cox’s condition – as laid out in the court filings – was not severe enough to meet the state’s medical exception standard and that the judge would be essentially changing the law if she granted the temporary restraining order.

Cox’s gynecologist, Dr. Damla Karsan, has previously said she had a “good faith belief” that Cox falls under the legal exception to the abortion ban, but couldn’t provide the abortion without a court order because she “cannot risk loss of her medical license, life in prison, and massive civil fines” if her belief is not accepted by the courts.

The state allows for abortions after six weeks if a woman experiences a “medical emergency,” which is defined in the law as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

Since the state has decided that this particular abortion would not be covered under the law, Karsan was right to be concerned about being prosecuted if she did what she felt best for her patient.

A different case is before the Texas supreme court in which twenty women and two physicians argue that the Texas law is too vague and should be invalidated. The arguments in that case show why doctors are being put in an untenable situation.

Before the Texas Supreme Court last week, an attorney with the state’s attorney general office argued the law was clear and that if women with life-threatening medical issues were not receiving abortions, then it should be considered negligence on the doctor’s part.

Cox said that although she has gone to the emergency room three times with severe cramping, the law is too vague to make clear whether an abortion under those circumstances would be legal.

So doctors have to weigh between whether they are prosecuted for performing an illegal abortion that the state considers unnecessary or, if they don’t, whether they are prosecuted for negligence because the state considered it to be necessary. So in essence, the state gets to second-guess a medical decision made by the patient’s doctor and if the doctor is deemed to have got it wrong, they get prosecuted. As a result. doctors have to lawyer up and get a judge’s ok before they make medical decisions, all of which takes up time in a medical situation where time is of the essence.