UPDATE TDD #18: Trisomy 18 Showdown in Texas
Another Dog Fight Over Aborting a Genetically-Compromised Baby
UPDATE: December 13, 2023
Since yesterday’s post below, I have confirmed from a Board Certified OBGYN specializing in high risk pregnancies that …
A Trisomy 18 diagnosis does not jeopardize a woman any more than any other pregnancy.
A Trisomy 18 diagnosis can be fatal, but it is not always fatal.
By way of example, former Senator Rick Santorum’s daughter, Bella, was born in 2008 and has Trisomy 18. Like Kate Cox, doctors told the Santorums that Bella’s diagnosis was “lethal” and was “incompatible with life.” She recently turned 15.
I have also confirmed that …
Kate Cox’s physician, Dr. Karsan, did not conclude that her pregnancy created a life-threatening physical condition, or any other condition covered by the medical emergency in the Heartbeat Law, so the lower court erred in saying that the law would not be enforced against the doctor who performs her abortion in Texas.
Under the law, if the physician, in his or her sole discretion and medical judgment, determines there is a life-threatening condition or a substantial chance of bodily impairment that merits terminating a pregnancy, then the physician may legally proceed with the abortion. There are some post-procedure documentation requirements, but that is all. There is no requirement for a court order, or any other kind of order or “permission,” for the physician to perform the procedure.
The Texas Supreme Court did not “overturn a doctor’s order” or engage with Dr. Karsan’s medical judgment in any way.
Kate Cox was never in danger of not being able to receive life-saving care, since her life was never in danger, at least from the pregnancy. Nor was she likely to sustain bodily injury as a result of carrying a Trisomy 18 baby.
The lawsuit was filed in an effort to challenge the scope of the medical emergency language in the Heartbeat Law, which would kickstart another round of emotional outbursts and generate an opportunity for one or two more uninformed activists to have their 15 minutes of fame.
The U.S. Supreme Court decided to hear arguments in another case regarding the abortion pill. The legal question at issue involves standing, or the plaintiffs’ legal ability to file a lawsuit in a particular court at a particular time. It’s a bit ironic since Ms. Cox’s standing to sue was, well, a bit shaky. I’ll pop out a summary on this new development in a separate post.
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[ORIGINAL POST STARTS HERE]
The Texas Heartbeat Act, which is codified in Sec. 171.201, Subchapter H of the Texas Legal Code, has been featured prominently in the news over the last few days.
Last week, Kate Cox, a Texas resident, who is/was approximately 21 weeks pregnant as of yesterday, filed a petition in the Travis County, Texas courthouse asking a judge to issue a temporary restraining order (TRO) against the Heartbeat Act. If granted, the TRO would “restrain the state from enforcing the law” against the physician who performs the abortion for Ms. Cox.
The lower court judge granted the TRO, but the Texas Supreme Court overturned the order yesterday on the grounds Ms. Cox’s situation does not meet the legal exceptions for abortions under the law.
The Law
The Texas Heartbeat Act prohibits doctors in Texas from performing abortions after a fetal heartbeat is detected, unless the physician believes a medical emergency exists that prevents his/her ability to comply with the law.
The Act defines “‘medical emergency’ as a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” See Sec.171.001, Subchapter A.
The text of the Exception for Medical Emergencies provision is reproduced below.
EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a) Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.
(b) A physician who performs or induces an abortion under circumstances described by Subsection (a) shall make written notations in the pregnant woman's medical record of:
(1) the physician's belief that a medical emergency necessitated the abortion; and
(2) the medical condition of the pregnant woman that prevented compliance with this subchapter.
(c) A physician performing or inducing an abortion under this section shall maintain in the physician's practice records a copy of the notations made under Subsection (b).
The Facts
I haven’t read the petition filed in Travis County, so I’m summarizing a variety of news reports here. It is my understanding, based on those reports, that Ms. Cox did not receive a determination that she qualified for the exception carved out in the law, which indicates her doctor did not believe the case fell within the legal definition of a “medical emergency.” Else, the doctor would have proceeded with the abortion.
She did, however, learn that her baby was diagnosed with Trisomy 18, or Edwards Syndrome, a genetic condition that may be life threatening to the developing child, with some affected prior to birth, and others during the first month of life. However, according to NORD, an organization that supports individuals with rare diseases, some Trisomy 18 patients live into their teens, but require significant medical and developmental support. It is the baby then, not mom, whose health is at risk as a result of this diagnosis.
As an aside, we know of a couple with a Trisomy 13 daughter who is now five and defying the odds every single day.
Back to Ms. Cox …
Post-diagnosis, even though it is clear that the medical exceptions carved out in the law do not include abortions for genetic abnormalities, Ms. Cox engaged (although representation is free) the Center for Reproductive Rights to file a lawsuit (in this case, called a petition) to challenge the scope of definition of “medical emergency” in the statute. The goal of the suit is to challenge the scope of the exceptions in the hopes a court will interpret them more broadly than the legislature intended. But, that’s not how it works.
If you don’t like the law, then lobby the state legislature to change it. If you don’t like the representatives who don’t share your worldview, then vote them out. Do the hard work of democracy.
The Center for Reproductive Rights claimed that proceeding with the pregnancy would put Ms. Cox’s life in danger because inducing labor, after two previous C-sections, may cause rupture of the uterine lining. Additionally, if the baby was delivered via C-Section, that, too, could put Ms. Cox’s life in danger and/or compromise her future fertility.
This raises the question:
How exactly did she intend to deliver the baby if the baby was healthy?
None of us need to be physicians to know that babies are delivered through the birth canal or via C-section, whether live or dead.
If Ms. Cox was a high-risk patient given her prior births, would then any challenge to her health arise not from carrying a genetically compromised child, but by carrying any child at all?
Moreover, because Ms. Cox is in her second trimester, the abortion will be (or at this point, was) performed by dilation and evacuation (D&E). D&E is an abortion method used in more advanced pregnancies due to the size of the baby.
The process involves two steps:
(1) the medical dilation of the cervix to ensure it’s large enough to remove the fetus, then
(2) the extraction of the fetal parts.
The physician medically dilates the cervix, a process that may take one to two days. Once the pregnant woman is sufficiently dilated, the doctor inserts a cannula to apply aspiration to the uterus. This process is followed by the use of forceps to remove the dismembered fetal parts. The abortion provider is then required to inspect and account for every part of the fetus once removed to ensure a femur, elbow, or some other fetal tissue isn’t left behind, as any remaining parts may cause uterine perforation and/or severe infection. In fact, it is common to provide women undergoing a D&E a round of antibiotics prior to the procedure for this very reason.
Note that medical abortions, or abortions brought about by a drug regimen, are not approved for pregnancies after 12 weeks (initially it was approved for pregnancies up to 8 weeks), and surgical abortions, or abortions performed via vacuum or suction aspiration alone, are also reserved for first trimester pregnancies as these procedures do not require medically induced cervical dilation in the way D&E abortions do.
Another question …
If inducing labor of a whole child, live or stillborn, would endanger her life due to uterine perforation or complications from multiple C-sections, why is inducing labor via manual dilation, vacuum suction, and removal of fetal tissue via forceps not life threatening as well?
Same process for both deliveries, only one delivers a whole child, the other a dismembered one.
The Ruling
Yesterday, the Texas Supreme Court overturned the lower court’s decision that the Heartbeat Act would not be enforced against the abortion doctor who would be performing Ms. Cox’s procedure. In doing so, the court concluded that the law - duly passed by the Texas legislature - barred Ms. Cox from terminating her pregnancy in Texas because her situation did not qualify as a medical emergency. The court’s decision clarified that medical emergencies are not potential, or possible, emergencies—they are actual emergencies.
Speaking to reporters about the case, Mark Hearron, senior attorney with the Center for Reproductive Rights, and attorney for abortion providers, stated the following regarding Ms. Cox’s case:
We are asking the Texas Supreme Court to do what the Texas courts in general do to clarify the scope of the medical exceptions. And to the extent that they are so narrow that they infringe on patients' rights to life and health and to their future fertility, we're asking them to declare that statute's [sic] unconstitutional and applied to those circumstances.
With this statement, Mr. Hearron is claiming that carving out exceptions for actual medical emergencies that exclude cases where a pregnant mother does not want to carry a compromised baby denies a “patient’s rights to life and health and to [her] future fertility.”
But there’s a bit of a disconnect with Ms. Cox’s case and the use of it to further this argument is curious.
Per publicly available information, neither her life, health, nor future fertility is endangered by this pregnancy per se; only her baby’s life is endangered given the Trisomy 18 condition. To put a finer point on it … If Ms. Cox wanted the child, this lawsuit would never have been initiated, the Center for Reproductive Rights would not have pursued her case (aka recruited her as a sympathetic plaintiff - same story with Jane Roe), and any concerns regarding delivery would be addressed in the ordinary course of her medical care.
The Real Issue
If the Center for Reproductive Rights wants to sue the state of Texas to broaden the medical emergency exceptions in the Heartbeat Act to cover cases of fetal abnormalities, then it should do that. It might be helpful to consider showing their proverbial cards and being honest.
Lying about what’s actually at stake so the Center can manufacture public hysteria and fundraise off of it is a bit low brow. It’s no better than any other fear-mongering propaganda used to prey on people’s ignorance and induce them to open their wallets.
For instance, it has splashed the headline “Texas Supreme Court denies abortion to woman in crisis” across its homepage, followed by a conveniently placed “call to action” button that reads … “Join the Fight.” Just click that button and you’re on the Donate page with a one-click option to pay.
Really?
It seems that Ms. Cox is in crisis because her baby is genetically imperfect and she no longer wants it. Neither her body, nor her physical health, nor her future fertility is compromised by the baby’s condition. Her emotional and psychological health are likely taking a massive beating given the diagnosis, but that’s an entirely separate issue that sits outside of the abortion statute and demands a completely different type of care. Whether she has a live birth, a still birth, or an abortion, the trauma remains … her child is/was sick. That’s the crisis … and one that should be handled with compassion, care, and generosity.
But I digress …
A Challenge
Instead of manipulating an already uninformed and overloaded public, how about the Center for Reproductive Rights brings clear, cogent, and rational arguments about what constitutes a “patient’s rights,” including:
a CLEAR definition of who qualifies as a patient,
a CLEAR definition of the rights of said patient, and
a CLEAR description of the source of those rights.
Put another way …
When a woman is pregnant, does the doctor have two patients, or one?
Since Roe v. Wade declared that the unborn are not persons with moral or legal rights of their own, this question sits at the center of every single abortion case. Note that Dobbs v. Jackson did not touch the personhood issue.
So where are we now?
If being human isn’t a sufficient basis for personhood, then what is?
If we no longer define humans by their nature, we necessarily define them by their function.
What level of function, then, is required before a human is a person?
Wouldn’t it be nice if the Center for Reproductive Rights articulates its standard for personhood ... then we could apply that standard consistently from the womb to the tomb and see where it takes us.
Thank you for reading!
-Kelley
December 12, 2023
The pro death movement will always attempt to make the exception swallow the rule. Under their interpretation, because pregnancy and childbirth always carry SOME risk, they will overstate the danger every time there is the smallest deviation from a perfect pregnancy (e.g., preeclampsia and other pregnancy-induced conditions that are fairly common). And there will be courts and judges eager to interpret it their way. As a result, terms in the law MUST be well defined.
I have been involved in the pro-life movement for years. All this amounts to is another attempt to chip away at existing anti-abortion laws. It would be cheaper and easier for her just to go to New Mexico where they will happily abort her baby. But that is not what this is about. Thanks for posting this...