WASHINGTON — A recent case in Texas is the latest in a coordinated effort by pro-abortion legal activists to broaden exceptions to laws barring most abortions in pro-life states.

All 14 states with laws in place barring most abortions have language that permits doctors to intervene in cases where the life of the mother is at risk; however, abortion advocates have increasingly been focusing on broadening these exceptions. 

Most recently, in Texas, the pro-abortion Center for Reproductive Rights represented Kate Cox, 31, who sought an abortion after her unborn child was diagnosed with Trisomy 18, a condition that has only about a 5% to 10% survival rate past the child’s first birthday. The Texas Supreme Court ultimately denied the request in December, finding that the case did not fall under the life-of-the-mother exception. Before the decision came down, however, Cox’s lawyers said she had traveled out of state to obtain an abortion.

The case has spurred a dialogue around abortion in the cases of tough prenatal diagnoses, with pro-life advocates warning of the societal devaluing of persons with these conditions even as abortion activists have embraced cases like these as part of their strategy to broaden exceptions to pro-life laws.

 

Texas Law and Medical Judgment

John Seago, president of Texas Right to Life, told the Register that this is just the most recent lawsuit in the state centered around discussions regarding “medical emergencies and how pro-life laws affect doctors’ ability to intervene and treat pregnant women when there is some kind of medical concern.” 

Five women also represented by the Center for Reproductive Rights sued the state earlier this year alleging that uncertainty around when medical exceptions apply in the state’s abortion laws endangered them when they faced pregnancy complications and sought an abortion.

Seago said these lawsuits “are something we want to take seriously because our intention for pro-life laws is to protect human beings, protect life, and not create harm or more injury or risk for mothers and their children.”

In a statement emailed to the Register, the American Association of Pro-Life Obstetricians and Gynecologists said that “life-affirming healthcare allows physicians to intervene in pregnancies in the case of potentially life-threatening complications, as does the Texas law.”

Texas law allows an abortion when “in the exercise of reasonable medical judgment, the pregnant female … has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”

In Cox’s case, the Texas Supreme Court found that “the exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks.” However, they wrote that the doctor in this case did not make that claim. 

“The pleadings state that Ms. Cox’s doctor — Dr. Damla Karsan — believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires,” the court pointed out, Instead, Karsan “asserted that she has a ‘good-faith belief’ that Ms. Cox meets the exception’s requirements.”

They wrote that, “certainly, a doctor cannot exercise ‘reasonable medical judgment’ if she does not hold her judgment in good faith,” but “the statute requires that judgment be a ‘reasonable medical’ judgment, and Dr. Karsan has not asserted that her ‘good-faith belief’ about Ms. Cox’s condition meets that standard.” 

“The courts cannot go further by entering into the medical-judgment arena,” the Texas court stated, noting that “the Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.”

Seago said it was important for there to be an “objective standard in law” where doctors are able to “use their reasonable medical judgment” to intervene in cases where the mother’s life is at risk, not just based on a “good-faith judgment” or personal opinion.

He believes that the state’s medical board and medical associations need to release “guidelines and concrete advice of how these circumstances should be handled in the future,” hopefully as soon as possible, because “we don’t want doctors to be confused. We do want them to know exactly what the law is: what it prohibits and what it allows.”

 

A Pro-Life Doctor’s Perspective

Dr. Christina Francis, president of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and a practicing OB-GYN in Indiana, told EWTN Pro-Life Weekly’s Prudence Robertson in a recent interivew that the prenatal diagnosis of Trisomy 18 itself does not pose a risk to the life of the mother.

Cox’s attorneys wrote that “because Ms. Cox has had two prior cesarean surgeries (‘C-sections’), continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy.”

“What’s set up in the court filing documents is that this right now poses an immediate life-threatening risk to her,” Francis said. “If that really was the case, then Texas law would have allowed them to go ahead with that separation procedure.” Regarding their mention of Cox’s previous C-sections and gestational diabetes, she said, “these are common conditions that we as board-certified OB-GYNs manage all the time in women who are pregnant, and we maximize their health as well as the health of their baby.” 

The petition by the Center for Reproductive Rights said that if Cox is unable to obtain an abortion, she would be forced to carry her pregnancy to term “only to watch her baby suffer until death.”

While Francis said that “no mother, no father wants their child to suffer or be in pain,” she pointed out that when the baby is in utero, “they’re not suffering, they’re not in pain, and it does not have to be the case after they’re delivered either. We either can provide appropriate medical interventions that will relieve that suffering or we can provide, when appropriate, comfort measures where we treat their pain.” 

“What would cause her baby pain, however, is a procedure that would dismember that child while that child is still alive,” Francis said in reference to the D&E abortion Cox was seeking, adding that “part of a patient receiving compassionate care that’s fully informed is that they understand that that’s what’s going on, and my concern is that Ms. Cox has not been given this information.”

 

Targeting Pro-Life Laws

Carolyn McDonnell, litigation counsel at Americans United for Life, told the Register that she believes abortion activists are threatened by the pro-life laws that have been put in place since the U.S. Supreme Court’s June 2022 Dobbs v. Jackson Women’s Health decision and are “trying to devise legal loopholes to expand the laws so that they can cover elective induced abortion.” 

“It seems to be a recent litigation strategy that the abortion activists are going into court to challenge these exceptions to try to broaden the ability to obtain an elective induced abortion,” she said, pointing to similar litigation from the Center for Reproductive Rights in Oklahoma, Tennessee and Idaho.

In a statement on these lawsuits in September, the Center for Reproductive Rights said that state pro-life laws with exceptions for life of the mother are “unclear how sick or near death a patient must be before a doctor can intervene.” The pro-abortion legal organization equated a fatal diagnosis for the unborn child with a danger to the life of the mother, asking that the exceptions be broadened to include such diagnoses. 

“There is also no exception in Idaho or Tennessee for situations where the fetus has a fatal condition and would not survive,” they wrote. “The lawsuits ask the courts to clarify that the exceptions include such fatal diagnoses, which jeopardize pregnant people’s health.”

In her discussion on Pro-Life Weekly, Francis specified that “we know that Trisomy 18 in and of itself does not pose a life-threatening risk to the mother.” 

In the Texas case, McDonnell said it was “legally interesting that they even went into the court in the first place,” because “it was unnecessary” if the circumstances of the abortion had fit the existing exception. 

In their opinion denying the petition, the Texas Supreme Court noted this, writing that “a woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians — not judges — both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.”

“If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed,” they wrote. “Nothing in this opinion prevents a physician from acting if, in that physician’s reasonable medical judgment, she determines that Ms. Cox has a ‘life-threatening physical condition’ that places her ‘at risk of death’ or ‘poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.’” 

 

Tough Prenatal Diagnoses 

As abortion advocates continue their attempts to broaden exceptions to pro-life laws, their claims about conditions like Trisomy 18 have been sparking further dialogue among advocates of those with disabilities.

Cox’s doctors described the diagnosis of Trisomy 18 in the petition as meaning that “her baby may not survive to birth” and, “if so, will only live for minutes, hours, or days.” While the majority of children with this condition do not live past their first birthday, some have lived into their teens and 20s.

Seago said that “in the media and in courts in the conversation around this case” there has been a “systematic devaluing of children with disabilities.” He said with Trisomy 18, “you have very popular examples of children who are living into their teens today, who have this genetic condition which is a serious condition, but we believe the pro-life view is to be committed to protecting those children and also giving them a chance at life.” 

He praised the work of the Texas organization Abel Speaks, which “walks alongside families that are facing this scenario” and helps with access to resources, but also “counseling and a community of families who know what they’re going through and support them in this time.”

The group was founded by Daniel and Kelly Crawford to assist families facing life-limiting diagnoses after they had their son Abel in 2016, who had Trisomy 18 and passed away 15 days after his birth. Their website features the stories of other babies who had life-limiting diagnoses and were cherished by their families in the brief time that they lived. 

Other families cherish the longer time that they have with their children.

Bella Santorum, the daughter of former Sen. Rick Santorum, has Trisomy 18 and is 15 years old. Santorum recently posted on social media about his daughter, noting that her doctors “put her on hospice at 10 days old. Other countries have much higher survival rates than U.S. because they treat the baby not the diagnosis. Every kid deserves a shot at life, not be brutally dismembered for not being perfect.”