In a ruling yesterday, the Texas supreme court granted the state of Texas relief from a trial court order that barred the state from enforcing its abortion laws in the case of a woman, Kate Cox, who had had an “extremely complicated” pregnancy with a child who has been diagnosed with trisomy 18. I’d like to briefly highlight three aspects of the ruling:
First, on the medical-necessity exception to Texas’s abortion law, the court emphasizes that the Texas legislature “has delegated to the medical—rather than the legal—profession the decision about when a woman’s medical circumstances warrant this exception”:
Only a doctor can exercise “reasonable medical judgment” to decide whether a pregnant woman “has a life-threatening physical condition,” making an abortion necessary to save her life or to save her from “a serious risk of substantial impairment of a major bodily function.” If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion….
A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed. Nothing in this opinion prevents a physician from acting if, in that physician’s reasonable medical judgment, she determines that Ms. Cox has a “life-threatening physical condition” that places her “at risk of death” or “poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
Second, Cox’s doctor, Dr. Karsan, did not in fact “assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.” So the trial court was wrong to rule that the medical-necessity exception was satisfied.
Third, the medical-necessity exception is not as narrow as Cox’s lawyer and others contend:
For example, the statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.” The exception does not hold a doctor to medical certainty, nor does it cover only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.