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Actual Malice

How Texas Tried to Torture a Woman for Being Pregnant

Attorney General Ken Paxton personally intervened to endanger Kate Cox’s life and preserve the Lone Star State’s post-Roe dystopia.

Dylan Hollingsworth/Getty Images
Texas Attorney General Ken Paxton

The 20-week marker is one of the most important milestones of a pregnancy. For most expectant mothers, the ultrasound that is usually first performed then is their first chance to see what their baby looks like. Hands and feet are identified. Those familiar black-and-white photographs are printed out and shown to friends and family. Everything suddenly feels more real.

For Kate Cox, a 31-year-old woman who lives in Dallas, the 20-week milestone turned into a nightmare. Her doctors told her that the fetus had been diagnosed with trisomy 18, meaning that her developing child has a third copy of chromosome 18. This genetic disorder will lead to a variety of birth and developmental defects: 95 percent of fetuses with the condition are stillborn; the few who survive typically live days or weeks. Cox has additional medical factors as well that make this pregnancy dangerous to continue.

In most states, Cox would be able to obtain the medical care she needs. Texas is not one of them. In an act of profound cruelty, the state has gone out of its way to endanger Cox, her health, and her life to enforce the state’s harsh abortion laws. This is the natural outcome of crafting vague laws to dissuade and punish anyone from seeking medical care—and an inevitable by-product of the anti-abortion movement’s elevation of ideology over medicine.

Texas, at least in theory, has a medical exception to its strict abortion bans. State law allows an abortion to be performed to save the patient’s life or if continuing the pregnancy would lead to “substantial impairment of major bodily function.” State lawmakers later added some language to suggest that the bans don’t apply in cases of miscarriage or ectopic pregnancy. (The New Republic’s Grace Segers wrote at length last year about just how maddeningly dangerous it is for patients with ectopic pregnancies to not have access to medical care.) As The Texas Tribune noted, the state does not offer exemptions for lethal fetal abnormalities—instead, it forces women to carry those pregnancies to term.

A Texas court ruled that Cox’s condition met the “substantial impairment” threshold. Judge Maya Guerra Gamble noted in her temporary restraining order, or TRO, that Cox’s medical history poses additional risks. Cox had visited three emergency rooms with “severe cramping, diarrhea, and leaking unidentifiable fluid,” Guerra Gamble noted. Cox and her husband already have two children who were previously delivered by C-section, which raises the risk of more severe complications like uterine rupture if she carries a trisomy 18 pregnancy to term.

Damla Carson, Cox’s physician in Dallas, told the court that she had concluded that a dilation-and-evacuation abortion is medically recommended to preserve Cox’s health and future fertility. “Dr. Karsan, however, cannot risk liability under Texas’s abortion bans and laws for providing Ms. Cox’s abortion absent intervention from the court confirming that doing so will not jeopardize Dr. Karsan’s medical license, finances, and personal liberty,” the judge noted. She accordingly granted the TRO against the state of Texas and its officials.

After the court’s ruling, however, Texas Attorney General Ken Paxton responded by sending threatening letters to three Houston-area hospitals. He strongly suggested that the state would punish the hospitals and their doctors if they facilitated the procedure, despite the court’s ruling. “The TRO will not insulate you, or anyone else, from civil and criminal liability for violating Texas’ abortion laws, including first degree felony prosecutions and civil penalties of not less than $100,000 for each violation,” the letter warned.

Paxton also not so subtly warned that the TRO does not prevent Texas residents from using S.B. 8, the state’s abortion bounty law, to bring private lawsuits against anyone who aids and abets the procedure. “Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against you, Dr. Karsan, or anyone else,” the letter claimed. “We remind you that the TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.”

Through these ambiguities and threats, Paxton and other Texas officials hoped to create a chilling effect that would stop anyone from providing medical care to Cox. Hospitals and their risk-averse legal teams are supposed to second-guess themselves. Doctors are supposed to subordinate their own medical judgment to that of Texas’s ideologically driven lawmakers and attorneys general.

Indeed, in its letter, Paxton’s office directly questioned the medical judgment of Cox’s doctor. “The temporary ruling fails to show that Dr. Karsan meets all of the elements necessary to fall within an exception to Texas’ abortion laws,” Paxton’s letter concluded. “Judge Guerra Gamble is not medically qualified to make this determination and it should not be relied upon. A TRO is no substitute for medical judgment.” It’s worth noting that Paxton has a bachelor’s degree in psychology, an MBA, and a J.D. He is not a physician and has no medical training.

When Paxton asked the Texas Supreme Court to intervene and block the TRO last week, he went even further to second-guess their medical judgment. “Ms. Cox claims an elevated risk of uterine rupture if she delivers the baby vaginally because she has had two prior C-sections. She therefore believes a C-section is the safer option if the baby survives to term. But while Ms. Cox alleges ‘that a C-section at full term would make subsequent pregnancies higher risk,’ [she and her doctor] plead no facts suggesting that a subsequent pregnancy would place Ms. Cox ‘at risk of death’ or result in a ‘serious risk of substantial impairment of a major bodily function.’”

It’s hard to overstate the malice it takes to argue a condition called “uterine rupture” does not meet that threshold. The scenario that Cox and her doctor are trying to avoid is one where her uterus literally tears itself open along her C-section scar during contractions. It is a not-uncommon complication in pregnancies where a woman tries to give vaginal birth after a previous C-section, which can be even more likely if multiple C-sections have previously occurred. If not swiftly treated, it can lead to catastrophic blood loss and force doctors to perform a hysterectomy to save the woman’s life. If that does not count as “risk of death” or “substantial impairment,” nothing does.

Cox and her lawyers begged the state Supreme Court to let the lower court’s order stand. But the court’s judges instead sided with Paxton on Friday. Their brief order said the TRO would be stayed “pending further order of the court.” The court offered no timeline for when it would decide to hear the case, let alone actually hear it. Instead it noted that the petitions and motions by both parties “remain pending before this court.” On Monday, Cox’s lawyers informed the court that she had fled the state to obtain the procedure where it can be lawfully performed.

Texas law does not allow for criminal or civil penalties against the mother for seeking an abortion. But even that could change. Some local jurisdictions in Texas and anti-abortion activists want to make it illegal to leave those jurisdictions to get an abortion, by targeting what they call “abortion trafficking.” Idaho lawmakers passed a similar law last year; it is currently on hold while litigation challenging it moves through the federal courts.

If Texas’s elected officials had their way, Cox and her family would have spent the next 20 or so weeks living in abject terror. Her doomed pregnancy would have felt like a time bomb strapped around her torso. This is a woman who’d hoped to welcome a new child into the world, only to find out that there would be no baby showers, no crib to build, or nursery to paint. Instead, she’s been left to wonder in dread if the next ache or pain or the next muscle spasm was the one that could end in tragedy. And at every step of the way, the state of Texas threatened to jail anyone who tried to help her. Cox was fortunate that she could leave the state. The next Texan woman to experience this may not be as lucky.