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Texas abortion law’s wording is causing dangerous confusion over emergency medical exceptions, critics say

CNN  — 

Emergency medical exceptions to the Texas abortion ban are extremely rare, and experts say the law leaves medical providers with their hands tied and puts patients at risk.

The Texas Supreme Court, comprised of nine Republicans, on Monday ruled against a woman seeking an abortion under the “medical emergency” exception to Texas’ near-total abortion ban, placing the law, which went into effect in 2022, under intense national scrutiny.

Thirty-one-year-old Kate Cox sought an abortion after learning her fetus had a fatal condition and her life and future fertility could be at risk without the procedure. Her doctor said she believed in good faith that the abortion was medically necessary. After a state judge ruled she could terminate her pregnancy, the case went to the Texas Supreme Court, which ruled against Cox.

By the time that ruling was made, Cox had already left the state to obtain an abortion elsewhere, her attorneys said.

The “medical emergency” statute in Texas – which went into effect after the US Supreme Court overturned Roe v. Wade – allows for an abortion only if the mother has a “life-threatening” condition while pregnant or is at “serious risk of substantial impairment of a major bodily function.”

After the state Supreme Court ruling, Molly Duane, senior staff attorney at the Center for Reproductive Rights, argued that the case is proof that proposed exceptions to abortion bans don’t work.

“If Kate can’t get an abortion in Texas, who can?” Duane said in a statement.

Thirty-four abortions were performed in the state as of September 15 this year, data from Texas Health and Human Services shows. All were performed in a hospital, as opposed to a clinic or a doctor’s office. All were performed both because of a “medical emergency” and to “preserve the health of the pregnant woman,” the data notes.

In 2020, the last full year before Texas put in place its most severe restrictions on access to abortion, 53,949 abortions were performed in the state, according to the health department. Of those, less than 1% were performed in a hospital. The data shows the number of abortions declining in the following years.

In September 2021, the state law banning abortion after six weeks went into effect. At the time it was one of the most restrictive abortion laws in the nation, outlawing the procedure at a stage when many do not yet know they are pregnant.

In 2022, the data shows 17,212 abortions, most of which were performed before Roe v. Wade was overturned on June 24, triggering a complete ban on abortion in the state, except those intended to protect the life of the mother. Less than 1% of those were performed in a hospital.

That year, the health department listed 33 of the 17,212 abortions as being due to a medical emergency and to preserve the pregnant person’s health.

The state Supreme Court ruling left many asking: If Cox’s case doesn’t constitute a medical emergency, what does?

“There is no clear definition in the statute,” said Sonia Suter, a professor of law at George Washington University who specializes in medical ethics and reproductive rights.

“Part of the problem is trying to define an exception for a medical profession in a statute that doesn’t necessarily rely on medical terms,” Suter said. “You’re almost speaking two different languages.”

The fact that all of the 34 abortions recorded in Texas this year were performed in hospitals, as opposed to less than 1% in previous years, suggests that exceptions are being made only in the most dire cases, when a pregnant person is dying or in imminent risk of death, Suter said.

Reproductive health advocates say those 34 cases don’t represent the full scope of Texans who need abortion care to preserve their lives and health.

Rates of severe maternal morbidity, or unexpected complications of labor and delivery that can have significant acute or long-term consequences to a woman’s health, have increased in the US from 2008 to 2021, according to research published by the medical journal JAMA.

About 2,200 infants died in Texas in 2022, an 11.5% jump from the year before, according to Texas Department of State Health Services data. The spike reversed a nearly decadelong decline in infant deaths, CNN previously reported.

The American College of Obstetricians and Gynecologists filed an amicus brief in support of Cox’s case, citing its concerns.

“The inability of clinicians in Texas to provide essential reproductive health care, starkly presented in this case, will increase existing disparities in health outcomes for Texas residents, exacerbate the shortage of qualified health care providers and worsen the maternal mortality rate in Texas, which is already at crisis levels,” the group wrote.

Maternal death rates soared in Texas between 1999 and 2019, according to a study published in JAMA.

“This is harming countless Texans who are pregnant or might one day become pregnant – whether or not they ever seek abortions or experience a serious obstetrical complication,” the brief read.

“Life threatening – well, what does it mean to threaten your life?” said Suter. “Is a one percent risk enough? Two percent? Eighty percent? How great does the risk have to be?”

The Texas Supreme Court claimed its ruling provides some clarity around the legal standards and called on the Texas Medical Board to provide more guidance on the “medical emergency” exception to the abortion ban.

“The courts cannot go further by entering into the medical-judgment arena,” the court stated in its opinion. “The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.”

The board has not responded to CNN’s request for comment.

A separate case pending before the Texas Supreme Court is demanding clarity on what is included under the exception.

Providers, courts and medical authorities have been unable to provide clarity on the exception – and some argue that’s by design.

“The vagueness may not be a bug, but a feature,” said Suter. “Look at the numbers – abortions are not happening. If that’s your primary goal, then you want it to be an exception that looks good on paper but that actually chills the provision of abortions.”

Proponents of the state’s abortion ban argue that the law can’t outline every possible medical emergency, and doctors have the power to make the final decision about whether a person needs an abortion to preserve their life or major bodily functions.

Those who are calling for more clarity around the law say Cox’s case revealed cracks in that argument.

Because there is no uniform guidance on what falls within the exception, every doctor who authorizes or facilitates an abortion in Texas could have their “reasonable medical judgment” challenged, leaving them vulnerable to civil or criminal charges, or having their medical license challenged, Suter said.

Before Cox’s case went to the state’s Supreme Court, a county judge granted a temporary restraining order allowing her physician, Dr. Damla Karsan, to facilitate an abortion under the state’s medical emergency exception.

In response, Texas Attorney General Ken Paxton sent an open letter to three hospitals where Karsan holds privileges, threatening potential first degree felony prosecutions and civil penalties of $100,000 for each violation if they allowed Karsan to provide the abortion at their facilities.

The temporary restraining order, Paxton warned, “will not insulate you, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”

“We remind you that the (temporary restraining order) will expire long before the statute of limitations for violating Texas’ abortion laws expires,” he added. Paxton named both Karsan and Cox in the letter.

Earlier this year, reproductive health advocates set up a legal defense network to help doctors providing abortion care.

“There’s a serious problem when you are imposing this kind of criminal penalty on somebody who doesn’t know they’re violating the law, because there’s so many different ways to interpret it,” Suter said.