A Black woman was criminally charged after a miscarriage. It shows the perils of pregnancy post-Roe
JULIE CARR SMYTH
Updated Sat, December 16, 2023
FILE - The U.S. Supreme Court is seen, with a carving of Justice in the foreground, April 19, 2023, in Washington. A Black Ohio woman who miscarried in her bathroom has been charged with abuse of a corpse and awaits grand jury action. Her case has sparked a national firestorm over the plight of pregnant women, especially women of color, following the U.S. Supreme Court’s decision to overturn Roe v. Wade.
(AP Photo/Jacquelyn Martin, File)More
COLUMBUS, Ohio (AP) — Ohio was in the throes of a bitter debate over abortion rights this fall when Brittany Watts, 21 weeks and 5 days pregnant, began passing thick blood clots.
The 33-year-old Watts, who had not shared the news of her pregnancy even with her family, made her first prenatal visit to a doctor's office behind Mercy Health-St. Joseph's Hospital in Warren, a working-class city about 60 miles (100 kilometers) southeast of Cleveland.
The doctor said that, while a fetal heartbeat was still present, Watts' water had broken prematurely and the fetus she was carrying would not survive. He advised heading to the hospital to have her labor induced, so she could have what amounted to an abortion to deliver the nonviable fetus. Otherwise, she would face “significant risk” of death, according to records of her case.
That was a Tuesday in September. What followed was a harrowing three days entailing: multiple trips to the hospital; Watts miscarrying into, and then flushing and plunging, a toilet at her home; a police investigation of those actions; and Watts, who is Black, being charged with abuse of a corpse. That's a fifth-degree felony punishable by up to a year in prison and a $2,500 fine.
Her case was sent last week to a grand jury. It has touched off a national firestorm over the treatment of pregnant women, and especially Black women, in the aftermath of the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade. Civil rights attorney Benjamin Crump elevated Watts’ plight in a post to X, formerly Twitter, and supporters have donated more than $100,000 through GoFundMe for her legal defense, medical bills and trauma counseling.
Whether abortion-seekers should face criminal charges is a matter of debate within the anti-abortion community, but, post-Dobbs, pregnant women like Watts, who was not even trying to get an abortion, have increasingly found themselves charged with “crimes against their own pregnancies,” said Grace Howard, assistant justice studies professor at San José State University.
“Roe was a clear legal roadblock to charging felonies for unintentionally harming pregnancies, when women were legally allowed to end their pregnancies through abortion," she said. “Now that Roe is gone, that roadblock is entirely gone."
Michele Goodwin, a law professor at the University of California, Irvine, and author of “Policing The Womb,” said those efforts have long overwhelmingly targeted Black and brown women.
Even before Roe was overturned, studies show that Black women who visited hospitals for prenatal care were 10 times more likely than white women to have child protective services and law enforcement called on them, even when their cases were similar, she said.
“Post-Dobbs, what we see is kind of a wild, wild West,” said Goodwin. “You see this kind of muscle-flexing by district attorneys and prosecutors wanting to show that they are going to be vigilant, they're going to take down women who violate the ethos coming out of the state's legislature.” She called Black women “canaries in the coal mine” for the “hyper-vigilant type of policing” women of all races might expect from the nation's network of health-care providers, law enforcers and courts now that abortion isn't federally protected.
In Texas, for example, Republican Attorney General Ken Paxton mounted an aggressive and successful defense against a white Texas mother, Kate Cox, who sued for permission to skirt the state's restrictive abortion law because her fetus had a fatal condition.
At the time of Watts' miscarriage, abortion was legal in Ohio through 21 weeks, six days of pregnancy. Her lawyer, Traci Timko, said Watts left the hospital on the Wednesday when, coincidentally, her pregnancy arrived at that date — after sitting for eight hours awaiting care.
It turned out the delay was because hospital officials were deliberating over the legalities, Timko said. “It was the fear of, is this going to constitute an abortion and are we able to do that,” she said.
At the time, vigorous campaigning was taking place across Ohio over Issue 1, a proposed amendment to enshrine a right to abortion in Ohio’s constitution. Some of the ads were harshly attacking abortions later in pregnancy, with opponents arguing the issue would allow the return of so-called “partial-birth abortions” and pregnancy terminations “until birth.”
The hospital did not return calls seeking confirmation and comment, but B. Jessie Hill, a law professor at Case Western Reserve University School of Law in Cleveland, said Mercy Health-St. Joseph's was in a bind.
“These are the razor's edge decisions that health care providers are being forced to make," she said. "And all the incentives are pushing hospitals to be conservative, because on the other side of this is criminal liability. That's the impact of Dobbs.”
Watts had been admitted to the Catholic hospital twice that week with vaginal bleeding, but she left without being treated. A nurse told the 911 dispatcher that Watts returned no longer pregnant on that Friday. She said Watts told her, “the baby’s in her backyard in a bucket,” and that she didn't want to have a child.
Timko said Watts insists she doesn't recall saying the pregnancy was unwanted; it was unintended, but she had always wanted to give her mother a grandchild. Her lawyer believes Watts may have meant that she didn't want to fish what she knew was a dead fetus from the bucket of blood, tissue and feces that she’d scooped from her overflowing toilet.
“This 33-year-old girl with no criminal record is demonized for something that goes on every day,” she told Warren Municipal Court Judge Terry Ivanchak during Watts’ recent preliminary hearing.
Warren Assistant Prosecutor Lewis Guarnieri told Ivanchak that Watts left home for a hair appointment after miscarrying, leaving the toilet clogged. Police would later find the fetus wedged in the pipes.
“The issue isn't how the child died, when the child died,” Guarnieri told the judge, according to TV station WKBN. “It's the fact the baby was put into a toilet, was large enough to clog up the toilet, left in that toilet, and she went on (with) her day.”
In court, Timko bristled at Guarnieri's suggestion.
“You cannot be broadcasting any clearer that you just don’t get it,” she said in an interview, suggesting Watts was scared, anxious and traumatized by the experience. “She’s trying to protect Mama. She doesn’t want to get her hair done. She wants to stop bleeding like crazy and start grieving her fetus, what she's just been through.”
As chief counsel to the county’s child assault protection unit, Assistant Trumbull County Prosecutor Diane Barber is the lead prosecutor on Watts’ case.
Barber said she couldn’t speak specifically about the case other than to note that the county was compelled to move forward with it once it was bound over from municipal court. She said she doesn’t expect a grand jury finding this month.
“About 20% of the cases get no-billed, (as in) they do not get indicted and the case does not proceed,” she said.
The size and stage of development of Watts' fetus — precisely the point when abortion crossed from legal to illegal without exceptions — became an issue during her preliminary hearing.
A county forensic investigator reported feeling “what appeared to be a small foot with toes” inside Watts' toilet. Police seized the toilet and broke it apart to retrieve the intact fetus as evidence.
Testimony and an autopsy confirmed that the fetus died in utero before passing through the birth canal. In regard to abuse, the examination identified “no recent injuries.”
Ivanchak acknowledged the case's complexities.
“There are better scholars than I am to determine the exact legal status of this fetus, corpse, body, birthing tissue, whatever it is,” he said from the bench. “Matter of fact, I'm assuming that's what ... Issue 1's all about: at what point something becomes viable.”
Timko, a former prosecutor, said Ohio's abuse-of-corpse statute is vague. It prohibits treating “a human corpse" in a way that would “outrage” reasonable family or community sensibilities.
"From a legal perspective, there's no definition of ‘corpse,’" she said. “Can you be a corpse if you never took a breath?”
Howard said clarity on what about Watts' behavior constituted a crime is essential.
“For rights of people with the capacity for pregnancy, this is huge," she said. "Her miscarriage was entirely ordinary. So I just want to know what (the prosecutor) thinks she should have done. If we are going to require people to collect and bring used menstrual products to hospitals so that they can make sure it is indeed a miscarriage, it’s as ridiculous and invasive as it is cruel."
Grieving mothers are not criminals. Brittany Watts, Kate Cox cases show cruelty to women.
COLUMBUS, Ohio (AP) — Ohio was in the throes of a bitter debate over abortion rights this fall when Brittany Watts, 21 weeks and 5 days pregnant, began passing thick blood clots.
The 33-year-old Watts, who had not shared the news of her pregnancy even with her family, made her first prenatal visit to a doctor's office behind Mercy Health-St. Joseph's Hospital in Warren, a working-class city about 60 miles (100 kilometers) southeast of Cleveland.
The doctor said that, while a fetal heartbeat was still present, Watts' water had broken prematurely and the fetus she was carrying would not survive. He advised heading to the hospital to have her labor induced, so she could have what amounted to an abortion to deliver the nonviable fetus. Otherwise, she would face “significant risk” of death, according to records of her case.
That was a Tuesday in September. What followed was a harrowing three days entailing: multiple trips to the hospital; Watts miscarrying into, and then flushing and plunging, a toilet at her home; a police investigation of those actions; and Watts, who is Black, being charged with abuse of a corpse. That's a fifth-degree felony punishable by up to a year in prison and a $2,500 fine.
Her case was sent last week to a grand jury. It has touched off a national firestorm over the treatment of pregnant women, and especially Black women, in the aftermath of the U.S. Supreme Court's Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade. Civil rights attorney Benjamin Crump elevated Watts’ plight in a post to X, formerly Twitter, and supporters have donated more than $100,000 through GoFundMe for her legal defense, medical bills and trauma counseling.
Whether abortion-seekers should face criminal charges is a matter of debate within the anti-abortion community, but, post-Dobbs, pregnant women like Watts, who was not even trying to get an abortion, have increasingly found themselves charged with “crimes against their own pregnancies,” said Grace Howard, assistant justice studies professor at San José State University.
“Roe was a clear legal roadblock to charging felonies for unintentionally harming pregnancies, when women were legally allowed to end their pregnancies through abortion," she said. “Now that Roe is gone, that roadblock is entirely gone."
Michele Goodwin, a law professor at the University of California, Irvine, and author of “Policing The Womb,” said those efforts have long overwhelmingly targeted Black and brown women.
Even before Roe was overturned, studies show that Black women who visited hospitals for prenatal care were 10 times more likely than white women to have child protective services and law enforcement called on them, even when their cases were similar, she said.
“Post-Dobbs, what we see is kind of a wild, wild West,” said Goodwin. “You see this kind of muscle-flexing by district attorneys and prosecutors wanting to show that they are going to be vigilant, they're going to take down women who violate the ethos coming out of the state's legislature.” She called Black women “canaries in the coal mine” for the “hyper-vigilant type of policing” women of all races might expect from the nation's network of health-care providers, law enforcers and courts now that abortion isn't federally protected.
In Texas, for example, Republican Attorney General Ken Paxton mounted an aggressive and successful defense against a white Texas mother, Kate Cox, who sued for permission to skirt the state's restrictive abortion law because her fetus had a fatal condition.
At the time of Watts' miscarriage, abortion was legal in Ohio through 21 weeks, six days of pregnancy. Her lawyer, Traci Timko, said Watts left the hospital on the Wednesday when, coincidentally, her pregnancy arrived at that date — after sitting for eight hours awaiting care.
It turned out the delay was because hospital officials were deliberating over the legalities, Timko said. “It was the fear of, is this going to constitute an abortion and are we able to do that,” she said.
At the time, vigorous campaigning was taking place across Ohio over Issue 1, a proposed amendment to enshrine a right to abortion in Ohio’s constitution. Some of the ads were harshly attacking abortions later in pregnancy, with opponents arguing the issue would allow the return of so-called “partial-birth abortions” and pregnancy terminations “until birth.”
The hospital did not return calls seeking confirmation and comment, but B. Jessie Hill, a law professor at Case Western Reserve University School of Law in Cleveland, said Mercy Health-St. Joseph's was in a bind.
“These are the razor's edge decisions that health care providers are being forced to make," she said. "And all the incentives are pushing hospitals to be conservative, because on the other side of this is criminal liability. That's the impact of Dobbs.”
Watts had been admitted to the Catholic hospital twice that week with vaginal bleeding, but she left without being treated. A nurse told the 911 dispatcher that Watts returned no longer pregnant on that Friday. She said Watts told her, “the baby’s in her backyard in a bucket,” and that she didn't want to have a child.
Timko said Watts insists she doesn't recall saying the pregnancy was unwanted; it was unintended, but she had always wanted to give her mother a grandchild. Her lawyer believes Watts may have meant that she didn't want to fish what she knew was a dead fetus from the bucket of blood, tissue and feces that she’d scooped from her overflowing toilet.
“This 33-year-old girl with no criminal record is demonized for something that goes on every day,” she told Warren Municipal Court Judge Terry Ivanchak during Watts’ recent preliminary hearing.
Warren Assistant Prosecutor Lewis Guarnieri told Ivanchak that Watts left home for a hair appointment after miscarrying, leaving the toilet clogged. Police would later find the fetus wedged in the pipes.
“The issue isn't how the child died, when the child died,” Guarnieri told the judge, according to TV station WKBN. “It's the fact the baby was put into a toilet, was large enough to clog up the toilet, left in that toilet, and she went on (with) her day.”
In court, Timko bristled at Guarnieri's suggestion.
“You cannot be broadcasting any clearer that you just don’t get it,” she said in an interview, suggesting Watts was scared, anxious and traumatized by the experience. “She’s trying to protect Mama. She doesn’t want to get her hair done. She wants to stop bleeding like crazy and start grieving her fetus, what she's just been through.”
As chief counsel to the county’s child assault protection unit, Assistant Trumbull County Prosecutor Diane Barber is the lead prosecutor on Watts’ case.
Barber said she couldn’t speak specifically about the case other than to note that the county was compelled to move forward with it once it was bound over from municipal court. She said she doesn’t expect a grand jury finding this month.
“About 20% of the cases get no-billed, (as in) they do not get indicted and the case does not proceed,” she said.
The size and stage of development of Watts' fetus — precisely the point when abortion crossed from legal to illegal without exceptions — became an issue during her preliminary hearing.
A county forensic investigator reported feeling “what appeared to be a small foot with toes” inside Watts' toilet. Police seized the toilet and broke it apart to retrieve the intact fetus as evidence.
Testimony and an autopsy confirmed that the fetus died in utero before passing through the birth canal. In regard to abuse, the examination identified “no recent injuries.”
Ivanchak acknowledged the case's complexities.
“There are better scholars than I am to determine the exact legal status of this fetus, corpse, body, birthing tissue, whatever it is,” he said from the bench. “Matter of fact, I'm assuming that's what ... Issue 1's all about: at what point something becomes viable.”
Timko, a former prosecutor, said Ohio's abuse-of-corpse statute is vague. It prohibits treating “a human corpse" in a way that would “outrage” reasonable family or community sensibilities.
"From a legal perspective, there's no definition of ‘corpse,’" she said. “Can you be a corpse if you never took a breath?”
Howard said clarity on what about Watts' behavior constituted a crime is essential.
“For rights of people with the capacity for pregnancy, this is huge," she said. "Her miscarriage was entirely ordinary. So I just want to know what (the prosecutor) thinks she should have done. If we are going to require people to collect and bring used menstrual products to hospitals so that they can make sure it is indeed a miscarriage, it’s as ridiculous and invasive as it is cruel."
Grieving mothers are not criminals. Brittany Watts, Kate Cox cases show cruelty to women.
Ray Marcano
The Columbus Dispatch
Opinion
Thu, December 14, 2023
Jun 24, 2022; Columbus, OH, USA; Alexis Voss, Obetz, wears her sign on her shirt, during an abortion rights protest at the Ohio State House, after the Supreme Court decision to overturn Roe v Wade.
Opinion
Thu, December 14, 2023
Jun 24, 2022; Columbus, OH, USA; Alexis Voss, Obetz, wears her sign on her shirt, during an abortion rights protest at the Ohio State House, after the Supreme Court decision to overturn Roe v Wade.
Historically, men have used power and place to subjugate people of color and women.
But the recent shameful and cruel patriarchal behavior should be enough for all decent people to scream, enough.
Ohio, Texas, Missouri, and Florida all highlight some of the most egregious examples that show the abuse of male power results in cruelty to women.
Right here in Ohio, Brittany Watts, 33, has been charged with felony abuse of a corpse in Trumbull County because she had a stillborn baby at home.
Watts was 22 weeks pregnant when she went to the bathroom and delivered the stillborn baby. A forensic pathologist testified the autopsy showed no injury to the fetus and it would not have lived.
But authorities allege that after the miscarriage, Watts tried to plunge the toilet with the fetus in it. That gave the law all it needed to arrest and charge a grieving woman who just lost a child.
It’s just as bad in Texas, where the state attorney general tried to force a Dallas women, Kate Cox, to carry and bear a child that has a rare and almost certainly fatal disorder.
Doctors diagnosed Cox’s fetus with trisomy 18, a rare chromosomal disorder. Some 90 to 95% of all children die within the first year.
Most die within a couple of days or weeks.
Ohio GOP lawmakers an unhinged. Vows to chuck abortion, weed vote proof
Women shouldn't be forced to give birth to dead fetuses
Kate Cox can't get abortion for now, Texas Supreme Court court says, halting judge's OK https://t.co/ZGbykWEHuD— USA TODAY (@USATODAY) December 9, 2023
In the very small number of cases that these babies survive, they need a lifetime of round the clock care because of the damage the disorder causes to internal organs, especially the heart.
These powerful Texas men wanted Cox to endure even more pain by forcing her to have a baby that will likely die during delivery or be dead shortly thereafter.
Who believes a woman should carry a dead fetus to term? Raise your hand. Defend it.
I want to hear this one.
And don’t give me the, well, there’s a small chance. We don’t force people who have a “small chance” of overcoming life-threatening cancer to get treatment if they don’t want to.
Cox had enough and left Texas to have her procedure in a place not nearly as unfeeling as the Longhorn State and the men who run it.
The Texas cases mirrors the horror that a pregnant Florida woman when, 24 weeks into her pregnancy, learned her fetus had no kidneys and would not survive. She couldn’t get an abortion in Florida, so she gave birth and watched helplessly as her baby died within a day.
That’s cruel.
Grieving mothers should not be treated like criminals
In Missouri, some lawmakers want to charge women who have an abortion with homicide.
Let that sink in for a second. If a woman, late in pregnancy, finds out her child will die at birth, she would have to choose between the agony of carrying a dead fetus in her body or potentially ending up in jail.
These are just a few of the efforts across the country to treat women like things and not people. It’s a conscious effort by men — the vast of majority of them who are white —to do more than place their anti-abortion values on a segment of society.
It’s an effort to keep women in their place by denying them domain over their own bodies and stripping them of the ability to make decisions in their best physical and emotional interest.
Now, they’re gleefully adding a psychological torture component by forcing these women to give birth to a dead child.
None of this is about abortion. It’s about patriarchy and doing whatever it takes to keep women under the thumb of powerful men.
Patriarchy means, in part, “a system of society or government in which men hold the power and women are largely excluded from it.” The definition should say “white men,” but maybe that goes without saying.
The definition matters less than the actions these men perpetuate. We need to be on the side of women who find themselves under attack by men who pleasure themselves with obscene powerplays.
It needs to stop.
Ray Marcano, a longtime journalist, is the former national president of the Society of Professional Journalists, a two-time Pulitzer juror, and a Fulbright fellow. He is a long-time journalist with writing and editing experience at some of the country’s largest media brands. He is a frequent Columbus Dispatch contributor.
This article originally appeared on The Columbus Dispatch: Texas' Kate Cox, Ohio's Brittany Watts cases show abuse of male power
That Texas Abortion Case Is Even Worse Than You Think
Philip Elliott
TIME
Fri, December 15, 2023
Texas Attorney General Ken Paxton speaks outside of the US Supreme Court in Washington, DC in 2021. Credit - Mandel Ngan—AFP via Getty Images
This article is part of The D.C. Brief, TIME’s politics newsletter. Sign up here to get stories like this sent to your inbox.
So much of the national conversation this week has been about Kate Cox, the 31-year-old mom who had to flee Texas to have an abortion to end a doomed pregnancy as the state's Supreme Court slowly decided to substitute its judgment for her doctor’s advice.
But what’s been missing from most of the talk about this case is this reality: Texas has at least three separate laws on the books designed to make getting an abortion nearly impossible. Those overlapping, vague statutes not only create one of the most restrictive environments in the country for reproductive rights, but shaped Cox’s case in ways that many following her ordeal likely missed. It also shows how even minor details can matter, especially when judges have political bents and time is an urgent component.
To understand the lay of the land that Cox, her family, and her doctor were facing, we need to look at what Texas lawmakers put in place before Dobbs, the 2022 case that invalidated a half-century of protections enshrined in Roe v. Wade. A year earlier, Texas passed a so-called “trigger ban” that would outlaw abortions should the Supreme Court overturn Roe. We’ll call this Ban A. It serves up a felony life sentence for health care providers who perform abortions and a $100,000 fine.
A second 2021 law—let’s call it Ban B—was a novel attempt at effectively banning most abortions in Texas without waiting for the Supreme Court to give permission, and it largely succeeded. That law runs along civil lines by deputizing neighbors and strangers to enforce it through lawsuits. Under Ban B (also known as S.B. 8), even an Uber driver who ferries a customer to a place where abortions are performed can be civilly charged. Critics have labeled it a Bounty Law. Yet unlike Ban A, Ban B isn’t a complete ban, though it functions as one in practice. It blocks most pregnant individuals from seeking an abortion after about six weeks, or when lawmakers decided there exists a beating “fetal heart”—a term doctors do not use, because a fetus at that point does not yet have a heart. (What abortion opponents describe as a heartbeat at that stage is actually the electrical impulses developing cells start to emit.)
More From TIME
Finally, there is Ban C, which are the pre-Roe laws in Texas, dating back to the state’s first criminal code of 1857. At that time, the state had a ban on abortion—including the funding of it—except in cases when the pregnant person’s life was at risk. The penalty? Five years in prison for those providing the care. Texas officials have asserted that those laws snapped back into effect when Roe fell.
All three abortion bans include language that provides exceptions when the health of the pregnant person is in question, although the specific definitions and conditions are different and vague. (None, it also should be noted, holds the pregnant party criminally liable.)
This all created a legal and medical minefield for Kate Cox, the Dallas-area mother of two who has been public about wanting, in her words, “a large family.” When Cox and her family learned the fetus she was carrying had tested positive for a genetic condition that almost always results in a miscarriage or stillbirth, she took action. She had already been to the hospital four times in two weeks seeking emergency attention and worried what this troubled pregnancy would mean for her future potential; her doctor agreed that an abortion would leave her with the greatest potential for a pregnancy at a future date.
But Cox’s situation ran afoul of Ban B, the law that bans most pregnancies after about six weeks in the name of the “fetal heartbeat” threshold. And remember, under Ban B, anyone who helps Cox get an abortion could be liable for a civil lawsuit by a complete stranger. It also, of course, might have been considered an illegal abortion under Ban A, the trigger ban, meaning her doctor could be jailed for life and fined at least $100,000. Or maybe just Ban C, meaning only five years in jail.
All of this explains why not only Cox, but her husband, and her doctor wanted to have her standing resolved and some protections put in place for her future, and theirs.
A district judge agreed with those concerns last week, allowing Cox to move forward with receiving an abortion.
Then Texas Attorney General Ken Paxton lept to action. He asked the Texas Supreme Court to step in and enforce the state’s anti-abortion bans—all of them. For good measure, he gave notice to area hospitals and doctors that they would face felony prosecutions and civil penalties if they helped Cox.
The state Supreme Court—all nine elected Republicans, mind you—heard the case and sided on Monday with Paxton, who said Cox’s case didn’t meet the medical exception. They said the proper standard for allowing the termination of a pregnancy, then at 20 weeks, was enshrined in law as a “reasonable medical judgment.” Cox’s doctor, by contrast, said she held a “good-faith belief” that Cox met the exception.
The court, however, said the “good-faith belief” was incompatible with the law’s standard of “reasonable medical judgment” that Cox faced a life-threatening condition. (Of course, neither are defined in any of the state’s bans, giving hair-splitting Paxton a win because the doctor didn’t use the magic words.) The justices then entered Kafkaesque territory—implying that if an abortion was actually needed, it would have already been done, and asking the state medical board for guidance—advice, of course, that doesn’t change the law’s text.
Given the GOP’s partisan monopoly in Texas, the outcome was largely expected. So much so that Cox had already fled Texas to receive an abortion in another state while awaiting the ruling.
Stories like Cox’s are just the tip of the iceberg in a post-Dobbs world. Twenty one states have banned abortion or restrict the procedure earlier in pregnancy than Roe allowed. Texas went from reporting more than 50,000 abortions in 2020 to 34 recorded through September of this year, according to state health statistics. Polling shows Texans don’t love the new limits, but Republicans dominate the political and judicial landscape. And a conservative U.S. Supreme Court seems completely fine with such restrictions. Even before Dobbs, they had blessed Texas’ legally thorny efforts with Ban B, creating a model that other red states have followed.
But the developments this week speak to the problems when laws lack definition and are left in the hands of partisan interpreters. Talk to anyone who reads—or writes—laws for a living, and there are two clear camps in state capitol buildings or here in Washington: the detail-obsessed nitpickers who want the legislation on their desk to define all of its terms or at least point to previously passed definitions; and the ambivalent regulationists who are happy to let bureaucrats frame the scope through rulemaking. Lacking definitions can give wide wiggle room to folks like Cabinet secretaries, agency administrators, and, yes, even judges. Incomplete legislative text yields imprecise readings and incomplete legal recourse for situations like the one facing Cox.
And, in that gray area, abortion foes can have tremendous power in leaving things vague, especially in a state when there are at least three anti-abortion laws in play. It provides for loopholes that can be exploited by anyone with enough imagination, nitpickery, and endurance. And it’s exactly the thing that specific-minded folks wandering legislative hallways spend their nights obsessing over. Because if there had been some specificity in Texas’ law, and had any of the bans grappled with the other ones still on the books, Cox would not have been forced to flee in a high-profile case that, in most states, would have been handled in the privacy of the doctor’s office. So the next time either party complains about the size of legislation—so many pages!—understand that a good chunk of those pages are probably defining terms that really, really matter.
Fri, December 15, 2023
Texas Attorney General Ken Paxton speaks outside of the US Supreme Court in Washington, DC in 2021. Credit - Mandel Ngan—AFP via Getty Images
This article is part of The D.C. Brief, TIME’s politics newsletter. Sign up here to get stories like this sent to your inbox.
So much of the national conversation this week has been about Kate Cox, the 31-year-old mom who had to flee Texas to have an abortion to end a doomed pregnancy as the state's Supreme Court slowly decided to substitute its judgment for her doctor’s advice.
But what’s been missing from most of the talk about this case is this reality: Texas has at least three separate laws on the books designed to make getting an abortion nearly impossible. Those overlapping, vague statutes not only create one of the most restrictive environments in the country for reproductive rights, but shaped Cox’s case in ways that many following her ordeal likely missed. It also shows how even minor details can matter, especially when judges have political bents and time is an urgent component.
To understand the lay of the land that Cox, her family, and her doctor were facing, we need to look at what Texas lawmakers put in place before Dobbs, the 2022 case that invalidated a half-century of protections enshrined in Roe v. Wade. A year earlier, Texas passed a so-called “trigger ban” that would outlaw abortions should the Supreme Court overturn Roe. We’ll call this Ban A. It serves up a felony life sentence for health care providers who perform abortions and a $100,000 fine.
A second 2021 law—let’s call it Ban B—was a novel attempt at effectively banning most abortions in Texas without waiting for the Supreme Court to give permission, and it largely succeeded. That law runs along civil lines by deputizing neighbors and strangers to enforce it through lawsuits. Under Ban B (also known as S.B. 8), even an Uber driver who ferries a customer to a place where abortions are performed can be civilly charged. Critics have labeled it a Bounty Law. Yet unlike Ban A, Ban B isn’t a complete ban, though it functions as one in practice. It blocks most pregnant individuals from seeking an abortion after about six weeks, or when lawmakers decided there exists a beating “fetal heart”—a term doctors do not use, because a fetus at that point does not yet have a heart. (What abortion opponents describe as a heartbeat at that stage is actually the electrical impulses developing cells start to emit.)
More From TIME
Finally, there is Ban C, which are the pre-Roe laws in Texas, dating back to the state’s first criminal code of 1857. At that time, the state had a ban on abortion—including the funding of it—except in cases when the pregnant person’s life was at risk. The penalty? Five years in prison for those providing the care. Texas officials have asserted that those laws snapped back into effect when Roe fell.
All three abortion bans include language that provides exceptions when the health of the pregnant person is in question, although the specific definitions and conditions are different and vague. (None, it also should be noted, holds the pregnant party criminally liable.)
This all created a legal and medical minefield for Kate Cox, the Dallas-area mother of two who has been public about wanting, in her words, “a large family.” When Cox and her family learned the fetus she was carrying had tested positive for a genetic condition that almost always results in a miscarriage or stillbirth, she took action. She had already been to the hospital four times in two weeks seeking emergency attention and worried what this troubled pregnancy would mean for her future potential; her doctor agreed that an abortion would leave her with the greatest potential for a pregnancy at a future date.
But Cox’s situation ran afoul of Ban B, the law that bans most pregnancies after about six weeks in the name of the “fetal heartbeat” threshold. And remember, under Ban B, anyone who helps Cox get an abortion could be liable for a civil lawsuit by a complete stranger. It also, of course, might have been considered an illegal abortion under Ban A, the trigger ban, meaning her doctor could be jailed for life and fined at least $100,000. Or maybe just Ban C, meaning only five years in jail.
All of this explains why not only Cox, but her husband, and her doctor wanted to have her standing resolved and some protections put in place for her future, and theirs.
A district judge agreed with those concerns last week, allowing Cox to move forward with receiving an abortion.
Then Texas Attorney General Ken Paxton lept to action. He asked the Texas Supreme Court to step in and enforce the state’s anti-abortion bans—all of them. For good measure, he gave notice to area hospitals and doctors that they would face felony prosecutions and civil penalties if they helped Cox.
The state Supreme Court—all nine elected Republicans, mind you—heard the case and sided on Monday with Paxton, who said Cox’s case didn’t meet the medical exception. They said the proper standard for allowing the termination of a pregnancy, then at 20 weeks, was enshrined in law as a “reasonable medical judgment.” Cox’s doctor, by contrast, said she held a “good-faith belief” that Cox met the exception.
The court, however, said the “good-faith belief” was incompatible with the law’s standard of “reasonable medical judgment” that Cox faced a life-threatening condition. (Of course, neither are defined in any of the state’s bans, giving hair-splitting Paxton a win because the doctor didn’t use the magic words.) The justices then entered Kafkaesque territory—implying that if an abortion was actually needed, it would have already been done, and asking the state medical board for guidance—advice, of course, that doesn’t change the law’s text.
Given the GOP’s partisan monopoly in Texas, the outcome was largely expected. So much so that Cox had already fled Texas to receive an abortion in another state while awaiting the ruling.
Stories like Cox’s are just the tip of the iceberg in a post-Dobbs world. Twenty one states have banned abortion or restrict the procedure earlier in pregnancy than Roe allowed. Texas went from reporting more than 50,000 abortions in 2020 to 34 recorded through September of this year, according to state health statistics. Polling shows Texans don’t love the new limits, but Republicans dominate the political and judicial landscape. And a conservative U.S. Supreme Court seems completely fine with such restrictions. Even before Dobbs, they had blessed Texas’ legally thorny efforts with Ban B, creating a model that other red states have followed.
But the developments this week speak to the problems when laws lack definition and are left in the hands of partisan interpreters. Talk to anyone who reads—or writes—laws for a living, and there are two clear camps in state capitol buildings or here in Washington: the detail-obsessed nitpickers who want the legislation on their desk to define all of its terms or at least point to previously passed definitions; and the ambivalent regulationists who are happy to let bureaucrats frame the scope through rulemaking. Lacking definitions can give wide wiggle room to folks like Cabinet secretaries, agency administrators, and, yes, even judges. Incomplete legislative text yields imprecise readings and incomplete legal recourse for situations like the one facing Cox.
And, in that gray area, abortion foes can have tremendous power in leaving things vague, especially in a state when there are at least three anti-abortion laws in play. It provides for loopholes that can be exploited by anyone with enough imagination, nitpickery, and endurance. And it’s exactly the thing that specific-minded folks wandering legislative hallways spend their nights obsessing over. Because if there had been some specificity in Texas’ law, and had any of the bans grappled with the other ones still on the books, Cox would not have been forced to flee in a high-profile case that, in most states, would have been handled in the privacy of the doctor’s office. So the next time either party complains about the size of legislation—so many pages!—understand that a good chunk of those pages are probably defining terms that really, really matter.
Write to Philip Elliott at philip.elliott@time.com.
Dozens of Texas businesses back challenge to abortion ban: ‘This is why our economy is taking a hit’
Saul Elbein
Thu, December 14, 2023
Ambiguities in Texas’s abortion ban are making it harder for businesses in the state to recruit, a coalition of businesses argued Thursday.
Fifty-one businesses have signed onto an amicus brief filed by in-house counsel at dating site Bumble, which was filed in support of 22 women suing the state over the abortion ban.
The plaintiffs in that case — Zurawski v. Texas — are 20 former patients who argue that they were denied medically necessary abortions because physicians were afraid of legal consequences.
As a tech company largely run by women, Bumble CEO Whitney Wolfe Herd said she feels it has a duty not just to provide access to health care, “but to speak out – and speak loudly – against the retrogression of women’s rights.”
The businesses signing onto the letter — which include dating sites Bumble and Match Group (the parent company of Match.com and Tinder), advertising giants Preacher and GSD&M, event organizers SXSW and the United States Women’s Chamber of Commerce as well as dozens of Texas real estate, law firms and restaurant groups — argued that the state’s abortion laws make it unattractive for families looking to move to a place where they can have children.
In the wake of the Supreme Court decision overturning Roe v. Wade, Texas has enacted a near-total ban on abortion after a fetus has a heartbeat, which typically occurs around 6 weeks into pregnancy and often before a woman knows she is pregnant.
After that point, the state allows the procedure only when it’s deemed medically necessary — an exception that the Zurawski plaintiffs, and others, argue is overly ambiguous and has not translated into legal abortions in the real world.
The uncertainty in those laws “has impacted, and will continue to impact, companies doing business in Texas, companies thinking about doing business in Texas, employees living in or traveling to Texas, and individuals considering relocating to Texas,” the companies wrote in the letter.
“Because of those undeniable realities, businesses are now forced to confront this issue head on — not for moral or legal reasons — but to keep the lights on and people working, making money,” it continues.
“No sector of the Texas economy is immune.”
The state’s GOP leadership has sought to attract transplants from other states to Texas, which it has cast as a pro-business, small government paradise: a place with no income tax and consistent local regulations and where parents’ rights in schools reign supreme.
But the Bumble letter draws together case studies of prospective transplants — including oil company executives — who decided against moving to Texas based on their desire to start a family.
It also emphasizes the risk felt even by women who are visiting the state on business — or for the lucrative professional conventions that Texas cities compete to attract.
In 2023, for example, the Society of Women Engineers (SWE) — an organization with 40,000 members — announced it would not hold conferences in “any location where there are limits on reproductive” health care, a list that incudes Texas.
The SWE was joined in this move by other professional societies, like the Society for Integrative and Comparative Biology, and the Journal of Urology, which cited the duty of conference organizers “to reasonably ensure female urologists can safely attend without the threat of catastrophic health consequences.”
The Bumble filing draws on research that found that nearly half of young women in nine battleground states are considering or making plans to move to a state with “comprehensive protections” for reproductive health care, and nearly two-thirds of college educated workers nationwide would not consider a job in a state with abortion restrictions.
To make matters worse, women and their doctors don’t have a clear picture of what conditions are exceptional enough to allow them to secure abortions under the exception for medically necessary cases, filing author Sarah Stewart of law firm Reed Smith told The Hill.
“The Zurawski question is: what standard doctors need to meet? Is it good faith medical judgment or something else?” Stewart asked.
Stewart added that the inherent complication and unintended consequences that attend pregnancy make a set-it-and-forget-it list of exceptions untenable. “If it’s an objective standard, then the state will always be able to come up with another doctor who will testify that the abortion wasn’t necessary — so that brings no comfort, and no clarity and certainty to the doctor,” she told The Hill.
In essence, Stewart added, the exceptions leave state doctors in the same place as an explicit ban, only now “with the threat of very severe consequences if it turns out that they guessed wrong.”
All this means that the abortion ban is costing the state $15 billion per year in lost revenue as qualified candidates go elsewhere and women of childbearing age stay out of the workforce, according to a 2021 report by the Institute for Women’s Policy Research cited in the Bumble letter.
The businesses that signed on to the Bumble filing argue that these costs are falling on them. To draw people to states where abortion bans are in place, businesses are now having to beef up their medical policies to pay for travel so that employees can get reproductive health care outside the state, the letter notes — something that corporations from Microsoft and Disney to Google and Wells Fargo now offer.
Critics of Texas’s abortion laws, passed in 2021 and 2022, have pointed to the disjunction between the start-point of the state’s ban and the timeline when most women learn they’re pregnant as a troubling source of uncertainty.
The Bumble letter — and the broader Zurawski challenge it is a part of — emphasize that the laws’ cut-off point also conflicts with another timeline: the one when some women with badly wanted pregnancies receive the brutal news that their fetuses have serious medical conditions.
The state’s ban kicks in long before parents get such news.
For example, genetic testing — which can reveal lethal fetal abnormalities like trisomy 13, Tay Sachs or anencephaly — can only be performed after about 10 weeks of pregnancy.
That testing is how Kate Cox — the Dallas-area woman at the center of a court battle over the ban who recently fled Texas to secure an out-of-state abortion — found out roughly 20 weeks into pregnancy that the fetus she was carrying had trisomy 18, a rare and generally fatal condition that leads to rampant abnormalities throughout the body.
Like many of the Zurawski plaintiffs, Cox was told by her doctors that her health would be at risk if she didn’t get an abortion — but she was unable to obtain the procedure under the state’s ban despite its exception for medically necessary cases.
The standard for this exception, Zurawski plaintiffs argue, is dangerously unclear, and the penalties for doctors who get it wrong are very high. Those can include felony charges of up to 99 years in prison, civil fines of up to $100,000 and — even if the state ignores the case — potential lawsuits under Senate Bill 8 from any private citizen who feels the abortion was unnecessary.
That’s a restrictive understanding of the ban — but also one the Texas Supreme Court seemed to affirm in Cox’s case.
The court ruled Monday evening that protections are available to doctors who perform abortions only if the mother’s life is definitely at risk, and that since Cox’s doctor had not used the phrase “life-threatening physical condition” in the filing that sought to secure her an abortion, she had not met the standard.
Similarly to Cox, Zurawski plaintiff Lauren Hall had to travel to Washington to get an abortion after her fetus was diagnosed with anencephaly — a fatal condition in which a fetus develops without a skull or brain.
In that case, Hall recalled to The Texas Tribune, her doctor advised her to sneak out of state.
The state Legislature in 2023 passed some reforms allowing abortion in limited cases. But the court’s Monday ruling on Cox’s case strongly implies that little has changed in the law’s practical application since Hall’s flight.
Cases like those tell women thinking of a move to Texas that the state is “fundamentally unserious” about protecting women and newborns, said Rachel O’Leary Carmona, executive director of Women’s March.
O’Leary Carmona said that dynamic is particularly clear when the abortion ban is stacked up against Texas’s high maternal mortality rate and its lack of mandatory paid maternity leave or state support for recent mothers.
“There’s not any demonstrable policy that deals with the issue of actually giving women the support that they need to have to have a reasonable choice to become a mother,” she added.
The Bumble letter echoed those concerns. As medical practitioners leave Texas to avoid being caught in its abortion ambiguities, it’s creating a feedback loop “that further pushes away business and workers,” Stewart wrote.
Cox’s case, she said, “are why businesses will continue to struggle to recruit and retain talent. This is why pregnant women from other states are hesitant to travel to Texas for business meetings. This is why doctors are leaving the state.”
“This is why our economy is taking a hit.”
— Updated at 12:39 p.m.
