Abortion Exceptions in Texas' Controversial Ban: Rare Uses, Doctors in Turmoil, Patients at Risk
In a 9-to-0 decision, the Republican-majority Texas Supreme Court ruled on Monday that a woman seeking an abortion can be exempted from the nearly total ban on abortion in Texas, which took effect in 2022, provided a strict national review.
Kate Cox, 31, sought an abortion after being diagnosed with a fatal illness in her unborn child that could potentially endanger her life and future fertility. Her doctor was convinced that the abortion was medically necessary. After a state judge granted Cox an exemption, the case went to the Texas Supreme Court, which ruled against Cox.
At the time of the judgment, Cox had already left the state to undergo the procedure elsewhere, her lawyer said.
The Texas "Emergency Medical Exemption" Law – This law came into effect following the US Supreme Court's overturning of the landmark Roe v. Wade decision in 1973. Abortions are only allowed if the mother has a "life-threatening" condition or "a substantial risk of irrevocable impairment of a major bodily function" during pregnancy.
Molly Duane, a senior lawyer at the Center for Reproductive Rights, argued that the case demonstrated that the proposed exceptions to the abortion ban would not work.
"If Kate couldn't get an abortion in Texas, then who could?" Duane said in a statement.
Records from the Texas Department of State Health Services show that 134 abortions were performed in the state through September 2024, all in hospitals, not clinics or doctors' offices. They were carried out for "medical emergencies" and "to protect the health of pregnant women," the records say.
In 2020, the last year before Texas implemented its most restrictive abortion restrictions, the department reported that 53,949 abortions were performed in the state. Less than 1% of these were conducted in hospitals. Data show the number of abortions has declined since then.
The law took effect in September 2021, after a six-week-old state law effectively banned abortions. At that time, it was one of the most restrictive abortion laws in the country and forbade the procedure at a time when many women were unaware of their pregnancies.
The data show that 17,212 abortions were performed in 2022, the vast majority before the June 24, 2022, overturning of the Roe v. Wade decision by the US Supreme Court, which led to a near-total ban on abortions in Texas, with exceptions for abortions meant to save the mother's life. Less than 1% of these were performed in hospitals.
The department classified 33 of the 17,212 abortions as performed due to "medical emergencies" and to protect the health of pregnant women.
What is a medical emergency?
The Texas Supreme Court's ruling has raised questions about what constitutes a medical emergency in Cox's case if it did not qualify.
"There's no clear definition in the law," said Sonia Suter, a law professor at George Washington University who specializes in medical ethics and reproductive rights.
"A big part of the problem is defining exceptions in legislation that doesn't necessarily rely on medical terminology," Suter added. "You're almost speaking two different languages."
The fact that 134 of the 17,212 reported abortions in Texas in 2024 were performed in hospitals compared to less than 1% in previous years suggests that exceptions are granted only in the most severe cases, where a pregnant woman is moments away from death or at risk of death. Suter said that the immediate threat to life was imminent.
Advocates for reproductive health argue that the 134 cases do not represent all Texan women who need an abortion to protect their lives and health.
According to published research results, the frequency of severe maternal morbidity or unintended pregnancy complications, which can have serious, long-term health effects for women, has increased in the United States from 2008 to 2021, as reported by Medicine, in an article published in the Journal of the American Medical Association.
According to the Texas Department of State Health Services, approximately 2,200 infants died in Texas in 2022, a 11.5% increase from the previous year. The increase in infant mortality reverses a nearly decade-long decline, as CNN reported earlier.
The American College of Obstetricians and Gynecologists filed an amicus brief supporting Cox and voicing concerns.
"The inability of Texas physicians to provide basic reproductive health care, as is clear in this case, will exacerbate existing health disparities amid an already critical shortage of qualified health care providers, and drive up maternal mortality rates in Texas, which are already at crisis levels," the group wrote.
According to a study published in JAMA, maternal mortality rates in Texas were high from 1999 to 2019.
"This harms countless Texan women who will become pregnant or could become pregnant – regardless of whether they have ever had an abortion or suffered from severe childbirth complications," the brief said. "Threat to life – now, what does that mean?" Suter asked. "Is a 1% risk enough? Two percent? Eighty percent? What is the risk?"
Uncertainty may be a deliberate feature
The Texas Supreme Court said its ruling provides clarity on legal standards and urged the Texas Medical Board to provide more guidance on the "medical emergency" exemption from the abortion ban.
"The court cannot intrude further into the realm of medical judgment," the court said in its statement. "However, the Texas Medical Board can certainly do more to address the current confusion by providing more clarity."
The board had not responded to CNN's request for comment as of publication.
Another case pending before the Texas Supreme Court requires clarity on what falls under this exemption. Health care providers, courts, and medical facilities have struggled to clarify this exception – some view it as discriminatory – but the Texas Supreme Court has not provided clear guidance.
"Uncertainty may be a deliberate feature," said Suter. "If your main goal is to make an exception that appears beneficial on the surface but actually discourages the exceptions, then possibly confusion is a feature, not a bug."
Supporters of the state abortion ban argue that the law does not describe all possible medical emergencies and that physicians should have the final say on whether a person needs an abortion to save their life or preserve important bodily functions.
Those calling for more legal clarity argue that the Cox case reveals weaknesses in this argument.
The legal risks for physicians confronting the new abortion ban in Texas
Suter said that every Texas physician who approves or supports abortions could have their "reasonable medical judgment" called into question due to the lack of clear guidelines on the circumstances that qualify as medical emergencies and the possibility of facing civil or criminal proceedings, potentially losing their medical licenses.
Before Cox's case went to the Texas Supreme Court, a district judge issued a temporary restraining order allowing her doctor, Dr. Damla Karsan, to perform the abortion as a medical emergency exemption under the state regulations.
In response, Texas Attorney General Ken Paxton sent an "open letter" to the three hospitals where Karsan has privileges, warning them of potential criminal charges for allowing her to perform the procedure in their facilities and threatening civil penalties of up to $100,000 per violation.
Paxton warned that a temporary restraining order would not shield them from potential civil and criminal liability for violations of Texas abortion laws.
"We remind you that this TRO (temporary restraining order) will expire before the statute of limitations for violations of Texas abortion laws expires," he added, mentioning Karsan and Cox in his letter.
At the beginning of this year, advocates of reproductive health established a Legal Defense Network to support physicians facing challenges related to providing abortion services.
"If such a penalty is imposed for violations that were not known to be violations, it creates a significant problem since there are many ways to interpret the law," Suter said.
