Texas' Great Abortion Compromise

The GOP's "compromise" position on abortion has always been clear.

(a) It will include in its categorical abortion bans exceptions for threats to the life or health of the mother; and in exchange

(b) It will threaten to jail any woman or doctor who dares try to use those exceptions.

Compromise!

The Texas Supreme Court has vacated a lower court ruling that enjoined the state from prosecuting a doctor who was set to give a woman a medically-necessary abortion. Even when the injunction was in place, state Attorney General Ken Paxton threatened to prosecute any doctor or hospital which abided by its terms and provided the procedure. And that threat remains on the table for future persons in this position (the plaintiff in this case, Kate Cox, has subsequently fled the state of Texas to receive the emergency care she needed. One presumes that the instant she returns, the bounty hunters licensed by Texas' ghoulish "pro-life" inquisitors will be hounding her).

Cox had a nonviable pregnancy -- her fetus had been diagnosed with trisomy 18, a fatal chromosomal condition -- and she had already faced severe health complications that repeatedly sent her to the hospital. Her doctors accordingly concluded that continuing the pregnancy would threaten her health and future fertility. But the state of Texas swung into action to do everything it could to ensure that she could not get the medical care she needed, insisting that Kate Cox's continued mortal peril was a legal obligation, and woe befall anyone who dared try to rescue her from it.

The Texas Supreme Court's opinion is a sterling encapsulation of the "compromise" laid out above. Over and over again, it asserts (in what would be comic if it weren't so dire) that decisions regarding whether an abortion is medically necessary are to be made by doctors, not judges. Doctors, not judges; doctors, not judges; doctors, not judges. And the court purports to confirm that doctors need not attain a pre-procedure judicial injunction before they perform a medically-necessary abortion; nor must they wait until death is "imminent" before performing the procedure.

So why are we here? Well, because after repeating "doctors, not judges" for the umpteenth time, the Court says "buuuuuut the doctor needs more than a good faith assessment, his or her judgment has to be 'objectively reasonable.'" And who decides that? It will be judges, after the fact! And what are the markers of "objectively reasonable" in this context? The court throws up its hands -- your guess is as good as mine! Except it isn't, because if you guess wrong, Ken Paxton has a prison cell waiting for you!

The way the "compromise" works out is that Republicans earnestly promise in theory all the exceptions and carveouts that make an abortion ban regime even remotely compatible with respecting women as humans, then do absolutely everything they can to make all of those provisions completely inaccessible in practice. Here the Texas Supreme Court makes three such promises: the decision regarding "medically-necessary" is one for doctors, not judges; the decision does not require advanced authorization by a judge; and the decision does not have to wait until the patient is bleeding out on the operating table. Each of these is less than "reasonable", they are the absolutely bare sub-minimum Texas women should be entitled to. And all three of them are lies.

The reason why Kate Cox and her doctors went to court is because they had absolutely no way of knowing if their judgment about the medically-necessary character of this abortion would be respected by the state of Texas, and if they guessed wrong, they were facing serious criminal penalties. So they needed a judge to confirm they were in the statutory safe harbor. The Texas Supreme Court's response was to say "try it and see" -- knowing full well that the entire problem is that doctors will be too terrified to try with the Sword of Damocles hanging over their head. In those circumstances, of course doctors will be hesitant to move until the case for a health-exception is rock-solid, not from their own "judgment", but in terms of whatever firebrand yahoo anti-women extremist is gazing over their shoulders from the Attorney General's office. And that's going to mean wanting to wait until one has formal judicial approval; or wait until the patient is bleeding out on the table. The promises are lies, and they are meant to be lies. The reality is exactly as ghoulish and inhuman in its cavalier indifference to women's life and health as it has always been presented, and that's fully intentional.

There is one little bit of the Court's opinion I will defend. At the outset, the Court characterizes the Texas laws at issue, which effectively ban abortion in all cases and in this case effectively compelled a woman to carry a non-viable, life-threatening pregnancy to term in the face of excruciating agony and serious medical danger, as "reflect[ing] the policy choice that the Legislature has made." That they did. Texas has made a policy choice that women, in their capacity as vessels, have essentially no rights over their bodies even in the face of excruciating pain, unfathomable injury, or devastating risk. There should be no pretending that it was doing anything different; no illusion that outcomes like this are not exactly what Texas hoped would happen when it enacted its law. 

The point of Texas' law was to ensure that women would be placed in mortal peril and then left at the arbitrary mercy of the state to determine whether their lives would be preserved, and to that extent the Texas Supreme Court was doing nothing more here than faithfully enforcing the will of the Texas legislature. The United States Supreme Court has decreed that, after fifty years where women were acknowledged as human, the judiciary must respect that "policy choice". There remain many avenues through which that choice still can be resisted. But the very least, we can accurately name what that choice is: a choice to endanger women and to make it functionally illegal to give them desperately-needed medical care. What Kate Cox went through is what local and national Republicans hope and demand women around the country should be subjected to, over and over and over again.