Dallas case highlights post-Roe reality for abortion in Texas

In nearly all cases getting an abortion is against the law in Texas. However, a Dallas case took the spotlight this week showing how strict the law is in reality. Kate Cox's battle highlighted the law's wording: an abortion is only allowed if the life of the mother is at risk or if giving birth poses a "serious risk of substantial impairment of a major bodily function."

Cox thought she was covered under the wording. This was her third pregnancy because she wants another child. She learned at twenty weeks her daughter would die shortly after birth because she had the fetal anomaly trisomy 18. She went to the emergency room multiple times and a doctor told her future fertility was at risk.

"We're going through the loss of a child. There's no outcome here that I take home my healthy baby girl. So it's hard. You know, grief. I think that joy and grief can co-exist. There's moments of joy. I'm grateful for my wonderful two children that I have and my wonderful family," said Cox.

A Travis County judge at first allowed her to get the procedure. Then, Attorney General Ken Paxton stepped in sending a letter to her doctors at several hospitals telling them despite the doctors' "good faith" belief an abortion was needed, it did not legally qualify. Instead, he wrote, the decision must be made on "reasonable medical judgment" based on standard medical practice.

Paxton wrote the hospitals the Travis County judge's decision "will not insulate you, or anyone else, from civil and criminal liability for violating Texas' abortion laws, including first-degree felony prosecutions."

Under the current law, doctors who perform abortions can face decades of prison time, tens of thousands of dollars in fines, and the loss of their medical license.

The case then went to the Texas Supreme Court. Cox, couldn't wait. Her lawyers told NBC 5 her health was in jeopardy so she left the state for an abortion. Later that night, the state supreme court ruled against Cox. Justices wrote the decision was not on them - but the doctors.

"If a doctor using her 'reasonable medical judgment,' decides that a pregnant woman has such a condition, then the exception applies," the justices wrote, "Under the law, it is a doctor who must decide."

Cox's lawyers from the Center for Reproductive Rights told NBC 5 the decision was the court punting the issue.

“What the courts ruling seem to imply is that that’s the way this is going to doctors going forward. They have to think about what the attorney general thinks meets the exception in this particular circumstances," said Nicolas Kabat, "Frankly it’s the court saying we don’t want to hear any more of these cases. This is making us look bad.”

This all highlights another important case. In Zurawski vs. Texas, more than twenty women are asking the court to say specifically what is covered under the medical exceptions. They want to know what does it look like when there's "a serious risk of substantial impairment of a major bodily function." They worry about hashing it out every time in court without a state authority giving them something to point to.

The justices in the state supreme court's ruling did write the Texas Medical Board has the power to "provide best practices" and "identify red line." So far they have not. Staff there told NBC 5 they had no comment because of the ongoing lawsuits.

In the meantime, Dr. John Thoppil with the Texas Association of Obstetricians and Gynecologists' say doctors are just not risking the procedure.

"For our state to say you should know, that’s difficult because we’re at the whims of who the prosecutor may be. Clarity is what we’re asking for. Clarity, I hope with some change, that’s what our patients are asking for," said Dr. Thoppil.

He says doctors want the state to draw those "red lines" so they can point to what's authorized in court if a lawsuit comes up.

"Even the process of going through a lawsuit is stressful. Even if you win. There’s thousands of dollars generally uncompensated in time and money and stress," said Dr. Thoppil.

NBC 5 asked him why not use the standard the Texas AG and the state supreme court argue they should: reasonable medical judgment based on objective medical standards.

"That’s a lot of legal gobbled-y-gook. What does that even mean? When you’re talking about a civil case, that may be a reasonable standard. But if we’re talking about a criminal case of felony, that makes it a very very difficult situation for any physician trying to interpret. We’re not lawyers," said Dr. Thoppil.

Dr. John Seago, President of the advocacy group Texas Right to Life tells NBC 5 he believes the law is clear for doctors to use their "reasonable medical judgment." The latest Cox case simply did not fit into a state exception.

"As the pro-life movement, our intention of the legislation and the enforcement of our legislation is to protect life. It's not to create injury or to do harm," said Dr. Seago, "Once we looked into the details however, we realized that you have several factors that are being ignored. You do have the life of a child that our law protects and then you have a medical condition that doesn't fit into our clearly spelled out medical exception language in our law."

Dr. Seago told NBC 5 that Texas law is aimed at giving any pregnancy "a chance at life."

"We do not authorize taking the life of an individual because we don't think they will live very long," said Dr. Seago.

One point of agreement he has with the doctors in Cox's case is he believed the Texas Medical Board should outline what's allowed under the exception and what's not.

"We admit there is confusion out there for our doctors on the front lines. That's why my organization has been advocating for the Texas Medical Board to come out with rules," said Dr. Seago, "These other organizations connect the dots from the law to practice. Unfortunately, since the sensitivity of this issue or the political nature of it, we haven't seen that."

New numbers also show the reality of Texas after Roe vs. Wade was overturned. Before the Dobbs decision, there were just more than 3,000 abortions performed in Texas every month according to the Society of Family Planning's "WeCount" study. That number plummeted to an average of 9 per month - only in the extremely rare emergencies. The report shows numbers increased in Kansas, New Mexico, and Colorado by hundreds per month, indicating to researchers that Texas women like Kate Cox are making the trip to other states.

Dr. Kari White, a health researcher at Resound Research for Reproductive Health was on the steering committee of the study.

"I think it's really important to understand the impacts of these types of policies are. For a variety of reasons. One it really helps us understand if people are getting the essential healthcare that they need. When we see the numbers of abortions being provided in the surrounding states increase, it's not necessarily a public health victory," said Dr. White.

Texas is having a different experience to the country as a whole. According to the study, researchers found abortions went up since Roe vs. Wade was overturned, just a bit. Dr. White tells NBC 5 the reasons are the increased use in telemedicine and medication abortion, along with an increase in donations and advocacy to expand abortion access where it's legal.

"It has also served the people in those states who historically have not been able to get care. When Roe v Wade was the guiding policy, there were still a lot of people who were left without access to care," said Dr. White.

It's been difficult to get Texas leaders to comment on the Cox case. According to NBC News in Washington, U.S. Senators from Texas Ted Cruz and John Cornyn both were asked to comment and both did not. Cruz telling the reporters to contact his press office. Cornyn saying he wasn't going to comment on something he didn't do; that this is for state-level officials to comment on because it's a state law.

NBC 5 requested an interview on the issue with Attorney General Ken Paxton. He has not responded so far. Neither has the latest anti-abortion law's author, Tyler Republican Senator Bryan Hughes. However, in the debate on the bill in 2021, he said the state's pre-Roe abortion law required the doctor to make the decision. The new, SB 8, did not change that.

"Texas has never impliedly or expressly repealed the statutes that prohibited abortion unless the mother's life is in danger. That existed decades ago. Those statutes have never been repealed," said Sen. Hughes on the floor of the senate.

Dr. Seago points to the state's alternative to abortion program as an option for women instead of leaving the state. The Center for Reproductive Rights also offers legal services for women in similar situations.