Texas Is Still Targeting Kate Cox After Her Historic Abortion Win

Before the Supreme Court overturned Roe v. Wade in June 2022, states required minors seeking abortion without the involvement of their parents to seek a court order. Today, after the Supreme Court’s decision in Dobbs v. Jackson Woman’s Health Organization, an adult woman had to do the same thing, even when her life and fertility were at risk. While a judge ruled in her favor on Thursday, issuing a temporary restraining order granting her doctor the right to perform the procedure without facing penalties, the state of Texas is still determined to stop her.

Kate Cox, who is 20 weeks pregnant with her third child, learned that her child had full trisomy 18, a genetic condition that is almost always fatal in utero or the first year after birth. Physicians warned her that continuing the pregnancy put her at high risk of developing gestational diabetes and hypertension—and that a third Cesarean section might also deprive Cox of the ability to have another child. Her physician nevertheless turned away her request for an abortion, concerned about “the loss of her medical license, life in prison, and massive civil fines.”

That Cox was the one asking for a court order permitting her to have an abortion is remarkable. Before Roe, plaintiffs like Norma McCorvey, the Jane Roe of Roe v. Wade, went to court to challenge the constitutionality of abortion laws, but often used pseudonyms. Moreover, they questioned the validity of criminal abortion laws rather than seeking a court-ordered abortion (McCorvey famously did not have an abortion and carried the “Roe baby” to term). After 1973, it was abortion providers who often brought suit on their patients’ behalf. Only minors asked permission to end specific pregnancies—and only under laws that applied to children acting without parental consent.

This state of affairs reflected the terms of the post-Roe debate. On the one hand, the law treated adult pregnant patients as competent decisionmakers, entitled to some degree of liberty and equality, and did not require them to explain themselves to a judge. On the other hand, few abortion seekers wanted to be in the spotlight challenging abortion laws themselves. Anti-abortion groups picketed clinics and spread images of life in the womb on placards, films, and political ads. The more stigmatized abortion became, the more it made sense for providers to be the ones questioning the constitutionality of abortion bans, and fewer public abortion seekers came forward as litigants themselves.

There were practical reasons for this status quo, too. Pregnant patients had to navigate possible medical complications that made launching a lawsuit seem daunting. And seeking to resolve a legal issue during a pregnancy seemed hard because pregnancy by definition was finite, and legal processes slow and inefficient.

While Cox’s case is historic, it somehow seems less so in the post-Dobbs era. That’s because so many more abortion seekers have gone to court. In Texas, Amanda Zurawski and other plaintiffs have told stories about medical complications, ICU stays, and fetal conditions incompatible with life. Similar suits are unfolding in other states. What makes Cox’s case unique in this post-Roe era is that it is happening while she is being denied an abortion and not after the fact. She is among the first, but she will likely not be the last.

What has changed to make women like Kate Cox willing to go to court? In part, the answer is that Dobbs has meant that many more patients are enduring experiences like her own. Lawmakers, as in Texas, have authorized far harsher penalties than those often tied to pre-Roe laws while adopting medical emergency exceptions written by lawmakers mostly worried about loopholes rather than risk to pregnant patients. This combination—vague laws and draconian penalties—has meant more patients being turned away, and more tragedies for which patients want redress.

Dobbs and the response to it also seem to have changed the stigma surrounding abortion. Americans are encountering more stories of people who seek abortions in newspapers, court cases, and in their daily lives. Condemning abortion in the abstract before Dobbs was easier than justifying the application of harsh criminal bans to real people today.

Abortion opponents have offered shifting responses to these new challenges. Some have argued that when a patient’s life is at risk, a procedure simply isn’t an abortion, which they define to include only the intentional taking of fetal life. In cases like Zurawski, conservative states and anti-abortion lawyers have argued that after-the-fact plaintiffs don’t have standing because they might not have another equally devastating experience in the future. Conservative states further blame doctors for misunderstanding laws that would have really allowed sympathetic plaintiffs to get an abortion after all. Cox’s case is different in this way too: The state has conceded that a fatal fetal abnormality isn’t covered by the state’s exception law, and they claim that the threats to Cox’s life or fertility are not imminent enough to warrant relief.

It is striking how lawyers for conservative states often have so rarely bothered to express sympathy for the incredibly difficult conditions in which plaintiffs find themselves—something that some anti-abortion groups have done—and something that would cost the state little and might help defuse some of the political fallout a case like Cox’s might create. Texas, for instance, breezily dismissed Cox’s claim as a put-up job, suggesting she could simply terminate her pregnancy in sunny Florida, and described the tragic diagnosis of trisomy 18 as something no different from what happens to “the countless women who give birth every day.” Ken Paxton, the attorney general, has already threatened the hospitals at which Cox’s doctor has admitting privileges with criminal and civil penalties if they perform the abortion, the court order notwithstanding. Republicans used to know that it was smart politics to pretend to care about the most tragic and often rare abortion cases. Now, Texas has gone to the wall to defeat women like Cox and Zurawski. Paxton’s plan delights the Americans who most ardently oppose abortion, but infuriates the vast majority of voters.

Cases like Kate Cox’s seem to be a unique feature of a post-Dobbs landscape, one in which adults have to plead with courts the way minors once did. Ironically, though, states’ harsh response in cases like this one has made it easier for even more people speak out. Texas is appealing the court’s decision, and all nine members of the Texas Supreme Court identify as Republican. Paxton is so sure of a win on appeal that he has threatened each of the three hospitals at which Cox’s physician has admitting privileges with prosecution, insisting that the current court order won’t protect them if a later court changes its mind. It is not clear what will happen as the case is appealed, but Cox’s case will matter regardless of the ultimate outcome. She is providing one more piece of evidence of what Dobbs means in the real world, and one more reason for people like her to tell stories of their own.