When Kate Cox got the news that her baby would probably only live for a few days, she went online to figure out her options. A 31-year-old mother of two living in Texas, Cox could not get an abortion, but she also knew that she did not want to make her baby suffer.
That’s when Cox came across the news that 20 Texas women had come forward to tell a court that they, like her, had been unable to get abortions in medical emergencies. Within days, Cox went public too: she became the first woman since the fall of Roe v Wade to sue for an abortion while actively pregnant.
Dozens of women across the United States have now launched lawsuits alleging that they were denied abortions even in the midst of pregnancy complications that put them at often severe risk. Their voices have redefined the conversation around abortion rights in the US since the fall of Roe v Wade, casting a spotlight on the unique circumstances that can lead to unexpected abortions, the complicated reality of pregnancy and the medical and ethical difficulty of legislating both.
Ultimately, Cox fled Texas for an abortion, her lawyers said earlier this week. Hours after their announcement, the Texas state supreme court overturned a lower court order that would have let her terminate her pregnancy in her home state.
In the wake of Cox’s lawsuit, dozens of people have reached out to Cox’s lawyers to say that they want to find some way to help – or that what happened to Cox happened to them, too.
“I think it’s touched a nerve. People think the laws are too extreme, which they are,” said Nick Kabat, a staff attorney at the Center for Reproductive Rights, which represents Cox as well as several other women who have launched lawsuits after their abortions were blocked despite medical emergencies. “People recognize how dangerous it is. Pregnancy is complicated already, as it is, and having the state get in the way of doctors providing medical care to patients – it’s just a bad idea.”
Technically, all abortion bans in the US have some kind of carve-out that should allow people to get abortions in emergencies. But countless doctors have said that these exceptions don’t reckon with the complexities of pregnancy. Due to the bans’ vague and politicized language, as well as the severe criminal penalties for providers who run afoul of the law, doctors say that they are confused about when they can step in to help patients and hamstrung by the fear of prosecution.
Instead, doctors say, they have been forced to wait and watch until patients are on the brink of death. Then they have to pull them back.
“A person gets to decide for themselves: what is a medical emergency for them?” said Dr Ghazaleh Moayedi, a Texas OB-GYN. For a pregnant person, “it is an emergency, it is imminent harm, to be forced to continue a pregnancy even one more minute than needed, when they know that their baby is suffering and will suffer and will die and that they will be forced into a major surgery with potential life-impacting complications.”
Originally, five women sued Texas over its medical emergency exceptions, which the lawsuit hopes to clarify. The suit is named for Amanda Zurawski, whose water broke too early in pregnancy for her to give birth to a healthy baby. Because her doctors could still detect fetal cardiac activity, she was unable to get an abortion. Days later, she was diagnosed with sepsis. She ended up spending three days in the ICU, and, thanks to scarring on her reproductive organs, she may never be able to get pregnant again.
As the months have passed, more and more women have signed on to Zurawski’s lawsuit. Dr Danielle Mathisen joined in November. She had fled to New Mexico for an abortion after learning that her baby had a condition that meant she would probably die soon after birth.
“There are so many things that can harm you in pregnancy, apart from the birth itself,” said Mathisen, who is an OB-GYN. “The birth itself – you can end up with major abdominal surgery, you can hemorrhage, you can pass an embolism. The pregnancy itself – you can develop pre-eclampsia, you can develop diabetes. It’s not a health-neutral event.”
Kabat declined to say what the future of Cox’s lawsuit might look like. The Texas lawsuit involving Zurawski and Mathisen is awaiting a ruling from the Texas state supreme court.
Similar lawsuits are under way in Idaho and Tennessee. One of the women in the Tennessee lawsuit, Allie Phillips, is running for office as a member of the first generation of female candidates to run post-Roe. After her fetus was diagnosed with several lethal conditions, Phillips had to travel to New York for an abortion.
“I can scream on TikTok, I can scream at marches, I can scream at the Capitol every day for the rest of my life. But that’s not going to change the people inside who are voting,” Phillips told the Guardian. “I have to be inside. I have to be the one that’s voting – on the actual bills, not on the ballot.”
In Oklahoma, a woman has also filed a federal complaint against two hospitals. Desperate for an abortion as her non-viable pregnancy worsened, the woman was told to wait in a parking lot until she was “crashing”, according to the complaint.
Her complaint centers around a federal law that requires providers to treat people in medical emergencies. Anti-abortion advocates say that requirement does not extend to abortion, while the Biden administration has argued that it does.
Now, the US supreme court may soon get pulled into that battle, as the highest court has been asked to review a case out of Idaho about the law and its link to abortion.
Fights over abortion are also being waged on several other legal fronts – as evidenced by a flurry of developments just in the last few days.
The US supreme court announced this week that it would take up a different abortion case that deals with restrictions around abortion pills. Arguments in that case have not been scheduled, but a ruling could be reached by summer 2024 – just in time to upend the 2024 US presidential election.
In addition, this week, state courts held hearings on multiple lawsuits, some of which were orchestrated by anti-abortion advocates seeking to expand on the string of bans implemented since the fall of Roe. Arizona is weighing whether to reinstate a 19th-century “zombie” law that would ban almost all abortions in the state. Abortion foes went to court in New Mexico in a case involving a different 19th-century law, which threatens to unleash a de facto abortion ban nationwide. A Wyoming judge is now deliberating over whether to let a first-of-its-kind ban on abortion pills take effect.
And while Cox was the first pregnant woman to file a post-Roe lawsuit seeking an abortion, she wasn’t the last. Mere days after Cox went public, a Kentucky woman announced that she, too, was suing for the right to end her pregnancy in a state that outlaws almost all abortions. (It is unclear whether that lawsuit will continue as the woman has since learned her fetus no longer has cardiac activity.)
Regardless of their outcome, the lawsuits brought by patients over abortion bans represent a “remarkable grassroots movement”, said Nicole Huberfeld, co-director of the Boston University School of Law program in reproductive justice. “I do think it’s important that patients are willing to speak out, to have a voice.”
US conservative, Christian organizations have long been skilled at finding plaintiffs and bringing lawsuits to dismantle statutes that run counter to their beliefs; the case that ultimately overturned Roe arose out of a law created in order to be challenged in court. Now, through these lawsuits, the reproductive rights movement is finally answering that effort with one of its own.
But, Huberfeld cautioned, it’s probably not enough to calm the legal chaos.
“These test cases grab headlines,” she said. “But the real answers are going to be in writing laws that make it so that there’s a more stable landscape.”
