The Daily - The Woman Who Fought the Texas Abortion Ban

Episode Date: December 14, 2023

A major case in Texas this week drew attention to the question of who can get exempted from an abortion ban. Most states that have banned the procedure allow for rare exceptions, but while that might seem clear on paper, in practice, it’s far more ambiguous.Kate Cox, the woman at the center of the case in Texas; and Kate Zernike, a national correspondent for The New York Times, talk about the legal process and its surprising effect.Guest: Kate Zernike, a national correspondent for The New York Times.Background reading: The Texas Supreme Court is weighing several cases seeking to clarify the limits of medical exceptions to the state’s abortion bans.But the court’s ruling in Ms. Cox’s case has left doctors still unsure about which cases might pass legal muster.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. This week, a major abortion case in Texas drew attention to one of the most contentious fights since the overturning of Roe v. Wade over the question of who can get exempted from an abortion ban. over the question of who can get exempted from an abortion ban. Most of the states that have banned abortion allow for rare exceptions. For example, if the mother's life is in danger. But while that might seem clear on paper, in practice, it's far more ambiguous. As a result, that ambiguity is increasingly ending up in court. Today, I speak to the woman at the heart of the case in Texas and to my colleague, Kate Cernicki, about its surprising effect.

It's Thursday, December 14th. December 14th. Kate, are you there? Yes, I'm here. Oh, great. Sabrina Lindsay, are you on? We are. I spoke with Kate Cox last week on the evening before her hearing at a Texas court.

Hi, Sabrina. Nice to meet you. Kate, really nice to meet you too. Thank you. So, Kate, tell us a little bit about yourself. Yeah, I'm a Texan. I'm a mother of two. I have been in Texas, raised here. I built my academic career and my professional career here in Texas. I have a wonderful husband and we've always dreamed of a big family. We have a three-year-old daughter and a one and

a half-year-old son. So they keep our hands full between the little ones and it's both working full-time. I always like to call it joyful chaos. I would love to have at least one more little one, if not maybe two. So I would love a big family. And we were really excited in August to receive the news of a third baby. We'd been hoping for a third baby and our second born was finally sleeping through the night, so it felt like good timing. It took a turn in October when we received the result from a screening that we had done. Some people are familiar with these screening tests because you can also find out if you're having a boy or girl. So I was anxious for the results of the test to come back because we were very excited to find out if we were going to have a boy or girl. for the results of the test to come back because we were very excited to find out if we were going to have a boy or girl.

And I got the results from a phone call directly from my doctor. And when I answered the phone, I could hear the seriousness in her voice. And so I pulled over. And that's when the doctor told me that screening came back and showed an increased risk for something called trisomy 18,

also known as Edwards syndrome. I'd never even heard of it. Most cases do not make it to the end of pregnancy. Many are still born. And in our case, it's come with severe health issues of vital organs, including brain development, heart development, spine, limb development, amongst other things. And so I was just in my car, parked, and just crying. I felt frozen, you know, in that moment. But I kind of told myself to have some hope because it wasn't a diagnosis.

It was a screening. But every week was more bad news. Each time we went back, not just the spine, but the heart and the brain. And so we knew. And it's hard to explain kind of feeling between both hope and despair because you're hopeful well the screen could be wrong and you know there might be a problem with the spine but just to have a wonderful life in a wheelchair or you know and then one of those last ultrasounds I had done my mother-in-law asked even if somehow the results came back and this was not full, crisis 18, is the situation severe? And the doctor said, yes, it's severe.

We asked the best case scenario, how much time might we have? And she said, could be an hour, could be a week if she survived first. So that was very hard to hear. So we knew. Also, I've been through two C-sections in the past. Two births did not go according to plan. I didn't want C-sections either. So I had a lot of questions about what the birth might look like for this one

and what risks I could be facing and what that could mean for another baby as well. And so I knew for my health and for the best chance at another baby and for the pain and every day of carrying a baby and wondering you don't feel her kick wondering if her heart has stopped you know it's always in the back of your mind um sorry I'm noticeably pregnant and I walk around a lot with two small children and you know people smile at my belly or ask me what I'm noticeably pregnant and I walk around a lot with two small children and, you know, people smile at my belly or ask me when I'm due and things like that. So the questions are hard.

So we knew for our family, we knew what we wanted to do. You said she, is it a girl? Yeah. It's a girl. And even though, you know, throughout the process, all signs pointed to full trichomy 18, we wanted to wait and get the full results of the amniocentesis. And so we were waiting on those results. And once the results came in, that's when we knew that it was full trisomy 18. And when did you get those final results, full trisomy 18?

Only last week. How many weeks are you now, Kate? last week. How many weeks are you now, Kate? I'm 20 weeks. And we had talked to the doctor about, you know, what we, what do people do? I felt so, I had no idea we'd be in a situation. I asked, what do women do in the situations? If we should not to continue the pregnancy, is that an option in Texas? And she said, no. I wanted to, on the one hand, do what I knew was best for my health and for a future pregnancy and for my well-being and our family. And at the same time, you know, it felt really scary that you couldn't do that in my state that I love deeply. I'll admit, you know, working full time and two little ones that keep me busy. I didn't know all the nuances

of the law, but I imagined that there were exceptions. And so I was very shocked that we did not fall into that exception in the situation that we were in. And so I was looking for stories online just to hear women's stories that had been through what we were going through, who'd had diagnosis like we got in their pregnancies. And that's when I came across the Center for Reproductive Rights. That's what brought me to reach out to get help and see where we could go. And tell me, Kate, where are you in the legal process now? What's happening? We have a hearing. And so we're going to ask the state for TRO and we're going to, with their approval, be able to access the medical care that I need here in Texas.

TRO, so temporary restraining order, which means you're asking the judge effectively, will they make an exception and allow you to get an abortion in Texas? Correct. And how are you feeling about it, the hearing tomorrow? I'm hopeful. I'm hopeful that the state will be sympathetic. I love and I want this baby so badly. There's nobody that loves and wants this baby girl more than I do. But there's no outcomes at the end of this where I take home a healthy baby girl and I want to do what's best for my health. Sorry. sorry, just a few moments. I'm hopeful, I think, that they can look at me and look at my situation

and see their wives, their daughter, their loved ones. We never thought that we'd be in this situation. I never thought I would ever want or need an abortion. But this is a medical decision, and it's what's needed for my health. Have you ever been in a court hearing before? No, no. Never. I've seen.

I've never been involved. Yeah, this is very new for me. Are you nervous? I think I'm nervous every day. I've been nervous since October when this started you know so yes I mean I'm human

I don't think anybody would be I'm hanging in there though good what are you going to do tonight Kate? well certainly try to get a little bit of sleep didn't get much last night I know last night I laid and we did shadows on the wall

with my daughter and she's three years old. She brings me a lot of joy, talks her ear off, which is really, really fun. And so spend time and hug the babies tight and hope for the best. We'll be right back. Kate, you've been covering abortion since the Dobbs ruling last year, and you've been following Kate Cox's case over the past week. Tell us what happened when she got to her hearing. Well, first of all, we should say that Texas has some of the strictest abortion bans in the country.

One is actually the ban that was challenged in the original Roe case. Another one is a more recent law that bans abortion after about six weeks when there is fetal cardiac activity. And for doctors, violating these bans, performing an abortion can lead to 99 years in prison, fines of $100,000, losing your medical license. There are some limited exceptions, which are that you can perform an abortion if it is to save the life of a pregnant woman or prevent her from substantial harm to a major bodily function.

My name is Maya Guerra-Gamble. I'm the judge of the 459th District Court. So this is a legal backdrop when the judge and the lawyers and Kate Cox herself with her husband by her side gather on Zoom for this emergency hearing. We are here. I don't have a cause number yet. I just realized. Oh, yes, I do. I apologize. I don't have a cause number yet. I just realized. Oh, yes, I do. I apologize. We are here on Kate Cox, Justin Cox, and Damla Carson, MD, versus the state of Texas and the Texas Medical Board. All right. So my name is Molly Duane for the plaintiffs. Good morning, and may it please the court. Yes, thank you. So Kate Cox's lawyer, Molly Duane, from the Center for Reproductive Rights, essentially makes two arguments about why Kate Cox should be allowed to have this abortion. In the time between when this case was filed on Tuesday morning and our hearing today, Ms. Cox has had to visit the emergency room again.

Her fourth emergency room visit in the last month for pregnancy symptoms, including severe cramps, leaking fluid and elevated vital signs. The first is that Kate Cox's health really is at risk. Today, we are seeking a temporary restraining order to allow Ms. Cox to get the abortion that she needs now to end her suffering and protect her fertility. The second thing that Twain argues is that Ms. Cox and her husband already have two children and desperately want more. is that Ms. Cox and her husband already have two children and desperately want more. Ms. Cox's current pregnancy, however, has been diagnosed with full trisomy 18, and all of her doctors have told her delivery of this pregnancy will be dangerous. Not having this abortion puts Kate Cox's future fertility at risk.

If she is denied an abortion and instead forced to carry this pregnancy to term, her only options in Texas are an induction or a C-section, which both pose serious risks to her future reproductive functions. Kate Cox has already had two C-sections, so the likelihood is if she's forced to carry this fetus, she would have a third C-section. C-sections can cause scarring, and that scarring can cause infertility. And there's also a risk of uterine rupture or that she ends up with a hysterectomy,

in which case she could not carry another child. The only question at issue today is whether a TRO is necessary to prevent further injury to Ms. Cox while this case goes forward. We believe that there can be no doubt on this record that the answer is yes. Thank you, Your Honor.

And how does the state of Texas respond? Thank you. Mr. Stone? Well, with respect to the temporary restraining order, Your Honor, I have a few comments I'd like to... The state says that this case is still hypothetical. The Supreme Court has ruled that TROs cannot be used to obtain an advanced ruling on the merits. Essentially, Kate Cox is not facing an immediate risk to her health or her life. Because plaintiffs have not alleged that they are eligible for the medical exception, just on the face of the pleading and in the text of the TRO itself. The second thing they say is that the standard is very clear.

So the medical exception in Texas is an objective standard, just like the standard of care. Write in the law in black and white when you can get an exception. To determine whether a person qualifies for the medical exception, a physician must determine that they qualify based on the reasonable medical judgment. That's an objective standard. The plaintiffs are asking this court to change that objective standard to a subjective standard. The plaintiffs are asking this court to change that objective standard to a subjective standard. They argue that the Center for Reproductive Rights and Kay Cox are trying to change that standard on the fly and make it sort of much more fuzzy. I also want to talk about the expert declaration we attached. Dr. Skopp, who you heard them mention, reviewed their pleading in this case and submitted a declaration stating that she does not believe that they have sufficiently

alleged the elements of the medical exception to Texas's abortion laws. What they're arguing about here is really the crux of these exceptions cases. How sick do you have to be? How much of a risk to your health does there have to be for a doctor to say, in my reasonable medical judgment, this woman should have an abortion? TRO is an extraordinary relief. It's meant to maintain the status quo of the parties and prevent an immediate and irreparable harm. And in this case, the plaintiffs have simply not shown that they meet that standard. For that reason, this court should deny it.

Is that all? Yes, Your Honor. Thank you. And what does the lawyer for Cox say to that? Like, what's her response? All right. Ms. Stoyan? Thank you, Your Honor. A couple points in response. They argue that, in fact, the law is not clear. The state says that Ms. Cox doesn't meet the elements of the exception.

But we don't know what the state thinks those elements are. It's too vague. Doctors have not been able to interpret it. I read the statute. Dr. Carson reads the statute to say that a serious risk of substantial impairment of Ms. Cox's reproductive functions would fall within the medical exception. If that is not what the statute means, then the state, after two years of silence, really ought to tell us. The law now says that doctors can use their reasonable medical judgment to determine whether or not a woman should have an abortion because of an exception. But Kay Cox's lawyers point out, and doctors fear, that the state is always going to be able to find some medical expert who can go into court and say that medical judgment was not reasonable. And so therefore, doctors really are at risk of prosecution in all of these cases. Yes, a physician has affirmed that this care is medically necessary.

Ms. Cox's condition is rapidly deteriorating every day. And just by the plain language of the statute, her condition falls within the exception, whatever it is that that exception means. Thank you. All right. Well, as I said, I spent a considerable amount of time yesterday reading and preparing for today. And surprisingly, I am going to grant the temporary restraining order for Ms. Cox, Mr. Cox, and Dr. Carson. The judge rules instantaneously right at the end of the hearing, and her words are really pretty powerful. parent and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice. And they show the power of a pregnant woman like Kay Cox coming before the court in this way.

So I will be signing the order and it will be processed and sent out today. Anything else? Thank you, Your Honor. Nothing from the plaintiffs. Thank you very much. Good luck, everyone. That concludes this hearing and I'm going to shut down the Zoom. caught our attention when we saw the outcome here, because I thought, hey, this is Texas. This is a state that has very strict bans. How did this woman achieve this? Well, the first thing I should say is that this lower court was in Travis County,

which is Austin. It's one of the most liberal blue cities in Texas. It's a blue dot in a sea of red. And it's a lower court. So, yes, this judge says that Kay Cox can have an abortion, but we know that this is not yet the end of the story. Right. Okay, so keep going with the story. What happens next? Texas's Attorney General Ken Paxton, who's famously anti-abortion, very conservative, immediately appeals the ruling. And hours after the judge's decision, he sends letters to the hospitals where Kate Cox's doctor has admitting privileges and writes that even if Kate Cox is allowed to have this abortion, that will not insulate her doctor from prosecution. So don't think that we're not going to come after you. action of the doctor that would potentially perform the procedure. And we should remind people here, doctors and hospitals can be criminally liable in these cases. So what does Kate do? Well, Kate Cox knows what an uphill battle this is going to be. And so she decides to leave the

state and have an abortion elsewhere. We don't know where, but we do know that she's left the state. She's essentially saying, I'm going to go before the clock runs out. If I sit around and wait for this to be resolved, I may be at a point where I can't even get an abortion in another state. It will be too late. Right. And what happens with the legal case? A new twist in a Texas woman's challenge to one of the country's most restrictive abortion laws. The Texas Supreme Court blocks that lower court ruling. In their ruling tonight, the court said that difficulties in pregnancy, even serious ones, do not pose the heightened risk to the mother that the state's exceptions for a mother whose life is in danger encompasses. And say the lower court ruling was a mistake, that Kate Cox, in fact, did not meet the standard for an exception. And this isn't

somebody who's just said, oh, I'm going to have an abortion. This is somebody who is in desperate need for all the complications she's going through. This case was everywhere. People were talking about it. Abortion is health care, period. People were debating it. This is a case, I know women just like this. I know two women in very similar circumstances. This woman's life is at risk. The baby most definitely is not going to survive.

And her future fertility, a woman who wants to have a child that is jeopardized in it. And lawyers say that, in fact, cases like Cox's are actually fairly common. And there are other cases that are being fought in court in a number of other states. Tell me about some of those cases. One of the first places that came up was in Louisiana, where there was a very prominent story about a woman who was pregnant with a fetus that had no skull. And the state of Louisiana, which again is one of these really strict banned states on abortion, had exceptions where you could get an abortion. But this particular condition, known as a crania, that was not on the list of conditions. So then the question becomes, okay, we're going to add that condition, but at what point do you have to have something broader? Like, can you just incrementally keep adding these different conditions or do you have to answer the broader case of like, what does it mean to be sick? What makes a woman's life at risk? Right. That seems to be a very problematic issue for the law and the legislature. Right. Do you just keep adding things? How do you even know?

you just keep adding things? How do you even know? Right. And since then, lawyers for the Center of Reproductive Rights, the people who filed Kate Cox's case, have filed other lawsuits. So they are in Tennessee and Oklahoma and Idaho and in another case in Texas, which has multiple women. And tell me about that case. Well, the lead plaintiff in that case is a woman named Amanda Zyrowski. She became pregnant after about a year and a half of fertility treatments, very much a wanted pregnancy. Then at 18 weeks, her water broke, which really puts the fetus at risk. The fetus was unlikely to live. But that fetus still had what doctors were calling a heartbeat. So they told her that under Texas law, she could not have an abortion. So she goes home and she becomes septic and she goes back to the hospital and she ends up being really sick. And so finally doctors say, OK, there's no longer a heartbeat and she's actually facing death.

We're going to do this abortion. But she ends up with so much scar tissue from that operation that one of her fallopian tubes is permanently closed. And it's unlikely that she will be able to carry another child. So it sounds like the lead plaintiff in this Texas case is a very vivid example of this argument you're talking about, right? The state law might seem black and white, might look neat on paper, but it's not neat in real life because medical decisions are fundamentally about probabilities. What if there's a 30% chance you'll die? Is that enough? Or does it have to be an 80% chance you'll die? Right. And the other thing to remember is that medical situations can change so quickly. You can be fine one minute and suddenly there's a real emergency risk to your life. And what their lawyers are saying is that women across the country are struggling with this question. Doctors are struggling with this question. We need clarity on what exactly are the exceptions. But I guess I'm

wondering, Kate, what's ultimately the point here? I mean, you said, you know, it's to clarify exceptions, but what's the end goal? Like, is it to get one of these cases up to the Supreme Court, you know, to find one precedent that could kind of wave a legal wand for the whole country? I don't think that is the goal. I think the way to think about this is, if you think about the way conservatives went after abortion after Roe, they figured out pretty quickly that they were not going to be able to, as you say, you know, wave some magic wand and get rid of it across the country.

But what they did instead was start proposing laws that would limit the circumstances where you could have an abortion. This goes in the opposite direction by making people consider all the cases in which you would need an abortion. And in the same way that anti-abortion groups change the conversation around abortion by, for instance, talking about partial birth abortion and making people really uncomfortable with that idea, all of these cases around the exceptions are changing the conversation about abortion. It's really shaking up

how we've thought about abortion for 50 years and really how the anti-abortion movement has taught us to think about abortion for 50 years. For a really long time now, people have had this stereotype that women who get abortions are teenagers and irresponsible women who use abortion for birth

control. The more we hear stories like this, the more that stereotype is being countered. The other thing that's changing is that for a really long time, pollsters have had us think about abortion in terms of you're either pro-life or you're pro-choice. What we're discovering is that there's a lot of room in the middle. And in fact, in the middle is where most voters are. And voters are starting to think about, well, in what cases would I want someone to be able to have an abortion? These cases around the exceptions are really what's changing this middle ground. And we've seen, of course, in elections recently, abortion being kind of a winner for Democrats. You know, that the right to the procedure is

more or less something people approve of. That's exactly right. The whole dynamic around abortion has changed. We are in a very much different place on public opinion than people anticipated immediately post Dobbs. One poll, for instance, surveyed people in these very strict ban states and found that people actually didn't know what the law was. But when you told them how strict it was, they wanted to add exceptions and said they would support ballot measures, adding these exceptions for, you know, the life of the mother or fatal fetal conditions,

rape, incest. The other thing that polls have shown us is that people who hear these stories are more likely to support ballot measures, not just allowing exceptions, but establishing a right to abortion in state constitutions. Cases like Kate Cox's may have only limited legal effect, but the stories that Kate Cox and women like her are telling, we've already seen they're having enormous effect on public

opinion over time. Kate, thank you. Thank you, Sabrina. We'll be right back. Here's what else you should know today. On Wednesday, the Supreme Court agreed to rule on the availability of a commonly used abortion pill, the first major abortion case that the court has taken since it overturned the constitutional right to the procedure more than a year ago. The Biden administration had asked the justices to intervene after the Court of Appeals for the Fifth Circuit favored curbing distribution of the drug, known as mifepristone,

in a surprise ruling earlier this year that involved skepticism about the federal government's drug regulation. The move sets up a high-stakes fight over the pill, which accounts for a significant share of abortions in the United States and could sharply curtail access to the medication, even in states where abortion is legal. The Supreme Court did not set a date for argument,

but is expected to issue a decision by the end of its term in late June. Today's episode was produced by Lindsay Garrison, Jessica Chung, and Mary Wilson. It was edited by Lisa Chow and Brendan Klinkenberg. Fact-checked by Susan Lee. Contains original music by Marian Lozano and Rowan Nemisto. And was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily.

I'm Sabrina Tavernisi. See you tomorrow.