Texas Abortion Decision Keeps Doctors Fearful

Texas doctors, women and lawyers have been asking the state for nearly two years to clarify what is and what is not allowed understrict, overlapping abortion bans. Lawmakers passed a bill this year that makes some exceptions to the bans clearer, but it wasn’t enough to help doctors decide whether they could legally give a Dallas woman, Kate Cox, an abortion.

Ms. Cox sought permission to end her pregnancy after she learned that her fetus had a fatal genetic condition. A district court judge said she qualified for a medical exception to the bans, but Texas Supreme Court overturned that decision this week.

Before the court ruled, Ms. Cox left the state for the procedure, as thousands of Texas women had already done. Her case reveals the dynamics of abortion politics in Texas: For abortion opponents, including the state’s Republican leaders, confusion and fear among doctors has succeeded in preventing nearly all abortions, even in cases of serious pregnancy complications, and there is little incentive to change course.

Texas has publicly reported only 34 abortions so far this year, down from more than 50,000 in 2020, before the first of the severe restrictions went into effect.

That steep decline has occurred even though there have not yet been any prosecutions under the state bans, nor any significant lawsuits against doctors or hospitals. The mere threat of ruinous civil litigation or a lifetime in prison has been enough.

“Essentially, what we have is that no one will take responsibility,” said Molly Duane, a lawyer with the Center for Reproductive Rights who represented Ms. Cox and her doctor. “The court isn’t taking responsibility. The medical board isn’t taking responsibility. And in the meantime, doctors are more afraid than ever, and real patients’ lives hang in the balance.”

Amy O’Donnell, a spokeswoman for Texas Alliance for Life, an anti-abortion group, said in a statement that the fact that dozens of abortions have been performed in the state this year showed that the medical exceptions to the bans, while limited, were working.

“No physician has been prosecuted or disciplined for anything related to those abortions,” she said, adding that her group was grateful to the Texas Supreme Court for ruling in favor of protecting Ms. Cox’s unborn child.

In its ruling, the Texas Supreme Court sided with the state’s attorney general, Ken Paxton, who argued that exceptions to the bans were legal only when the health or life of the mother was seriously threatened, and Ms. Cox’s case did not appear to meet that standard, based on the arguments presented.

The court said that the law allowed for abortions based on a doctor’s “reasonable medical judgment.” If doctors remained confused, the court said, the Texas Medical Board could step in with guidelines.

But doctors have said that the risk of performing an abortion that they believed to be necessary but that could later be questioned by the state presented them with a stark choice: Go ahead with the procedure and risk felony prosecution, or wait until a woman’s health deteriorates to the point that no one would question the medical need.

This week’s ruling, which applied only to Ms. Cox’s current pregnancy, provided little solace for abortion rights advocates who are waiting for the court, whose nine elected members are all Republicans, to rule in a separate but related case.

That case, Zurawski v. Texas, is aimed at resolving confusion about medical exceptions more generally, and at allowing doctors to perform abortions that they deem medically necessary, and within the bounds of the law, without the fear of civil or criminal punishment.

Most of the 34 abortions reported in Texas in 2023 in were performed by medication, the method typically used in the earliest stages of pregnancy, according to state data. Only two were surgical “dilation and evacuation” procedures of the type Ms. Cox sought, which are performed in the second trimester, after 13 weeks of pregnancy. In 2020, there were nearly 2,500 such procedures in Texas.

Doctors and legal experts said the lack of clarity in the law had deterred doctors from performing abortions that they believed were necessary to preserve the health of the woman. The court found that the law does not require an imminent threat to the mother’s life, but doctors said that in practice, those were the only situations in which abortions have been performed.

“In Texas, you have to wait until the patient gets sick,” said Dr. Alireza A. Shamshirsaz, an obstetrician and fetal surgeon who left Texas for Boston last year. “But that is a dangerous game. Wait, wait, wait, while the mom gets sick, and then you do it.”

Dr. Shamshirsaz said the problem was concern about legal action, especially among hospital administrators. “Our hospital was very clear that you cannot even talk about abortion,” he said of a hospital where he had worked in Texas. “Because they don’t want to deal with the state at all. Or the courts.”

The state and its experts have argued that patients are harmed not by the state law, but by doctors’ unwillingness to perform abortions that are allowed under the law.

“A lot of the confusion and the potentially substandard care that is occurring is because the doctors have misinterpreted the law,” said Dr. Ingrid Skop, an obstetrician-gynecologist, in a deposition in the Zurawski case. “Unfortunately there has not been much guidance from the organizations that, in other less politically charged issues, have given them guidance.”

Ms. Cox, a 31-year-old mother of two young children who said she wanted a large family, brought her case after her fetus was diagnosed with trisomy 18, a genetic disorder that is fatal in all but rare cases.

She was believed to be the first pregnant women to seek a court-ordered abortion since Roe v. Wade was overturned last year. Shortly after her case was filed, a pregnant Kentucky woman sued to overturn that state’s bans.

Texas law does not permit abortions based on the viability or nonviability of the fetus. But Ms. Cox’s doctor, Damla Karsan, determined that carrying the pregnancy to term would threaten Ms. Cox’s health and future fertility, particularly because Ms. Cox would probably need a cesarean section, which would be her third.

One aspect of Ms. Cox’s case could end up deepening concern among doctors: how quick Mr. Paxton was to threaten Dr. Karsan with prosecution in an open letter.

The court’s ruling — which was unsigned, issued “from the court,” and included no dissents — appeared to endorse Mr. Paxton’s action, according to Laura Portuondo, a University of Houston law professor who specializes in constitutional and reproductive rights. “It permits and green-lights precisely the kind of intimidation campaign that you saw Ken Paxton doing here,” she said.

Doctors have been asking the Texas Medical Board for guidance on the medical exception issue since last year. So far, the board has not taken any action. A spokesman for the board did not respond to a request for comment.

“We don’t have clarity from this Cox ruling,” said Dr. Rick W. Snyder II, the president of the Texas Medical Association, who added that getting guidance from the medical board would not be enough. “We’re going to want legislative clarity,” he said. “We’re trying to protect physicians, so they don’t have to go to court.”

The state legislature added some legal protections this year for doctors in certain limited cases, but Dr. Snyder said that much more was needed. At the same time, he said, Ms. Cox “clearly was not” in a medical emergency. “I understand how the Supreme Court ruled the way they did, in not wanting to legislate from the bench,” he said.

Lawyers for the Center for Reproductive Rights have pushed courts in several states to adopt a “good faith” standard for assessing a doctor’s decision that a medical exception applies. Under that standard, it could be more difficult to challenge an abortion legally, experts said, because doing so would involve having to show that the doctor did not act in good faith.

The Texas law says doctors must rely on “reasonable medical judgment,” a standard that allows their decisions to be challenged more easily, by presenting testimony about what another “reasonable” doctor would do in the situation, the legal experts said. Mr. Paxton’s attorneys did just that in Ms. Cox’s case, citing Dr. Skop as an expert witness who believed that Ms. Cox’s condition did not meet the requirement for a medical exception.

“The reason that the difference matters is that it opens up the gate for bringing in competing expert witnesses,” said Ms. Portuondo, the law professor. “The state has its Rolodex of pro-life physicians who will say ‘I don’t think it is reasonable to perform this abortion.’”