When the courts decide on therapeutic abortion in Texas

In Texas, it is now judges, not doctors, who decide a pregnant woman's health. Kate Cox, 31, filed a legal challenge last week for permission to have an abortion. She is 20 weeks pregnant and has just learned that the baby has Trisomy 18, an anomaly that is most often fatal for the fetus and can cause dangerous complications for the mother. However, Texas, since the suppression last year by the United States Supreme Court of the federal right to abortion, has implemented some of the most draconian laws in the country. They prohibit abortion after six weeks, even in cases of rape or incest. The only exception is in cases of danger to the mother's life. But the law remains vague and does not specify the type of medical situations, which puts doctors in an untenable position. To avoid prosecution and life in prison, they now avoid performing the procedure.

This is the first time since the Supreme Court's ruling that a woman has filed such an appeal with a court. The judge, Maya Guerra Gamble, ruled last week in favor of Kate Cox, finding that keeping the child could harm her health. Its decision therefore legally allows an abortion and protects the mother, the husband and his doctor from all legal action. According to the young woman's lawyer, her doctors say that there is “virtually no chance” that the baby will survive and that carrying the pregnancy to term and giving birth by cesarean section is not only dangerous but risks causing infertility. Kate Cox has already visited the emergency room four times in recent weeks due to severe pain and other complications.

Ken Paxton, the state's attorney general, a highly controversial conservative who survived impeachment for corruption by his own party, immediately stepped up to the plate. He appealed to the state Supreme Court saying the decision “opens the floodgates” to all kinds of abuse. According to him, Kate Cox has no reason to benefit from an exception to the law because her pregnancy does not endanger her health. The Supreme Court therefore blocked the judge's decision while waiting to deliver its verdict on an unspecified date. “A woman in Texas was just forced to beg the court for a procedure to save her life. And now any doctor who will perform this procedure that she urgently needs is threatened with reprisals,” protested Veronica Escobar, a Democratic elected official from Texas.

In the meantime Kate Cox, a mother of two, finds herself stuck. “It’s excruciating,” she admitted in an interview. “Either [my little girl] dies in my womb, or I will have to give birth to a stillborn child. Or if she arrives in this world, her life will be measured in minutes, hours or days and tormented by medical devices.

Ken Paxton went even further. He sent a letter to three area hospitals threatening legal action if they performed abortions. “Paxton is working hard to scare doctors and prevent them from performing an abortion to prevent it from becoming a new strategy,” summarized on X, Mary Ziegler, a law professor at the University of California specializing in this issue.

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As for Kate Cox, after a week of legal battle, she could not wait any longer. She has just left urgently for another state to have a voluntary pregnancy intervention. “While Kate had the opportunity to leave the state, most women do not and a situation like this can become a death sentence,” said Nancy Northrup, president of the Center for Reproductive Rights, which defended her. .

Cox's case could set a precedent in Texas and elsewhere. Another pregnant woman has just launched a similar lawsuit in Kentucky. At the same time, the Texas Supreme Court is examining another lawsuit filed by 20 women in Texas who, having been unable to obtain a therapeutic abortion, are asking for clarification of the law on exceptional cases.

Kate Cox's situation may also have political repercussions. American public opinion has shown in recent months its hostility to the ban on voluntary termination of pregnancy. Voters have repeatedly voted against anti-abortion Republican candidates. In Ohio, they approved a referendum that enshrined abortion protection in the state constitution. Texas remains very conservative but Republican Senator Ted Cruz faces a difficult re-election campaign next year. Enough to give the Democrats a little hope.