The US right-wing will stop at nothing to control women’s bodies. Kate Cox can tell you about it. Brittany Watts can confirm it. The 20 women and two obstetrician-gynecologists who are suing Texas would raise their hands too, as would so many others. Welcome to the post-Roe world—the Dobbs era—where it’s open season on women’s lives.
Cox, 31, is the woman who needed an abortion after she found out the fetus she was carrying had trisomy 18, a genetic disorder incompatible with life. The mother of two young children, Cox lives in Dallas, Texas with her husband. When the diagnosis of her fetus’ fatal condition was made at 20 weeks of pregnancy, Cox had already been experiencing pregnancy complications serious enough to land her in the emergency room several times in a two-week period. Her doctors informed her that continuing her pregnancy could compromise her health and her future ability to have a child.
Texas is arguably the state where right-wing lawmakers have been the most eager to ban abortion. Take a backseat, Louisiana and Alabama! Texas now has no less than three laws on the books that overlap to criminalize abortions throughout pregnancy and ban the surgical procedures commonly used to perform abortion later in pregnancy. One of these laws, SB8, passed in 2021, even allows ordinary Texans to sue anyone performing an abortion or helping a pregnant person obtain one, and awards them $10,000, bounty-hunter style, if they prevail in court. But Texas’ 2022 strict abortion ban provides an exception, although a narrow one: a licensed physician can carry out an abortion if they determine, “in the exercise of reasonable medical judgment, that the pregnant female… has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” This is what is often described as an exception for the health or life of the woman. In the 17 US states that have passed the strictest abortion bans since the US Supreme Court issued its Dobbs ruling in June 2022, the only provisions keeping those laws from being described as total abortion bans are these kinds of narrow exceptions.
Surely, Cox and her lawyers assumed, losing her fertility would be a substantial impairment of a major bodily function? Cox therefore filed an emergency petition to be allowed to have an abortion, and to ensure that her doctor, Damla Karsan, would not be penalized for helping her. District Judge Maya Guerra Gamble granted her request, stating that “The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice.” Sounds right, no?
But the Attorney General of Texas, Ken Paxton, immediately appealed the judgment. He also issued an ominous letter to the three hospitals where Cox could have received the procedure, warning them that the “TRO (Judge Guerra Gamble’s order) will not insulate [them], or anyone else, from civil and criminal liability for violating Texas’ abortion laws, including first-degree felony prosecutions [up to 99 years in prison]… civil penalties of not less than $100,000 for each violation… and actions brought by private citizens,” and reminding them that “the TRO will expire long before the stature of limitations for violating Texas’ abortion laws expires.”
Paxton also claimed that Judge Guerra Gamble had erred, because she had agreed with Dr. Karsan that an abortion was “medically recommended.” No, wrote Paxton, that was not enough. Cox needed to have a life-threatening condition. Losing her fertility, on its own, was not enough. Yes, you are reading this correctly: Texas’ attorney general says you need to be at risk of death to obtain an abortion in Texas.
[Oh and by the way, Paxton was almost thrown out of office this year for corruption and bribery, and he faces ongoing lawsuits on charges of fraud and corruption. Only the best people.]
The Texas Supreme Court, on appeal, piled on with the cruelty and absurdity. They annulled Judge Guerra Gamble's TRO, stating that “A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function. The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.” Do you understand, doctors and hospitals? It’s on YOU to make the call, but also, the Texas attorney general will sue you if you exercise your professional judgment to perform an abortion. And you, pregnant persons with a fetus that is sure to die or with severe health problems, will just have to hope for the best. Perverse. Kafkaesque.
Kate Cox didn’t wait for this travesty of a decision and travelled to another state to obtain the safe and legal abortion she needed. She had the means and the support to do it, thankfully. Not everyone does. Thousands of pregnant persons in Texas do not have those resources. In 2022, an estimated 9,800 Texans who would have chosen an abortion had no choice but to give birth.
The right-wing wants to control women so much, they will prosecute women who have miscarriages. They have in fact done this to Black and brown women for years, as documented by the organization Pregnancy Justice. Brittany Watts, a 33-year-old Black medical receptionist from Ohio, is only the latest example of this grotesque practice.
Watts was 21 weeks pregnant when she began feeling intense pain and bleeding heavily this past September. At the time, abortion was (and still is) legal in Ohio until 22 weeks of pregnancy. A doctor told her the fetus would not survive and that she should get an abortion because she risked a systemic infection. Over the next three days, Watts went twice to Mercy Health - St. Joseph’s Hospital (a Catholic-affiliated facility), where she waited hours for care, while doctors argued with hospital officials over whether they should perform an abortion. She was sent home both times without being treated.
Watts ended up miscarrying at home, sitting on the toilet. Feeling unwell, she was finally admitted to the same hospital. There, a nurse comforted her and then reported her to the police, claiming there was an “infant” in a bucket at Watts’ home. An investigation, during which detectives seized and broke apart Watts’ toilet, led to Watts being charged with “abuse of a corpse,” a felony typically associated with grave robbing (!) and punishable by up to a year in prison.
As many commentators have noted, people who miscarry at home typically do so in the toilet. Grace Howard, a professor of justice studies at San José State University, wondered what exactly in Watts’ conduct constituted a crime. “If we are going to require people to collect and bring used menstrual products to hospitals so they can make sure it is indeed a miscarriage, it’s as ridiculous and invasive as it is cruel.”
In an interview on ABC News about Watts’ case, professor Michele Goodwin, who teaches law at the University of California, Irvine and is the author of Policing the Womb, pointed to a marked increase post-Dobbs in “muscle-flexing” by district attorneys and prosecutors, resulting in hyper-vigilant policing of the bodies of women of all races, with Black women as the “canaries in the coal mine.” In a Washington Post article, Kylee Sunderlin, legal support director at If/When/How, a network of reproductive justice lawyers, noted that while prosecutions stemming from miscarriages occurred in the Roe era, post-Dobbs, “prosecutors feel they have more leeway” to pursue these cases under statutes governing anything from abuse of a corpse to infanticide.
With the constitutional protections offered by Roe gone, pregnant persons are finding themselves increasingly charged with “crimes against their own pregnancies,” added Howard. That’s right, women must now be surveilled and their homes and toilets searched because they are considered potentially hostile to their fetus.
Whose interest is being served in cases like these? Pregnancy complications are precisely that, and they do not lend themselves to lawmakers drawing arbitrary and often imaginary lines. No more than heart bypass surgery or cancer treatment would. What if your doctor risked prison time for using their best medical judgment to treat your cancer—would that result in optimal care? Why then the right-wing obsession with pregnancy, if not to control women?
Doctors, who are prime targets for prison time under abortion bans, are left to decide what risks they are willing to take to safeguard the health and lives of their pregnant patients. Hence the turn to the courts to try to get some clarity and protection. In the case of Zurawski v State of Texas, 20 women and 2 doctors are currently suing Texas to demand clarification of the state’s medical emergency exception—the very exception that was of so little help to Kate Cox.
One of the plaintiffs in Zurawski, Dr. Dani Mathisen, had to travel from Texas to New Mexico to obtain an abortion when her fetus showed fatal defects at 18 weeks. Mathisen's mother made the arrangements for her. That is not illegal under Texas law (although some Texas counties are actually trying to ban travelling on their roads to get an abortion), but Mathisen was worried about the bounty hunter lawsuits mentioned above, which can be filed against anyone who helps someone get an abortion. "There was this tiny goblin in the back of my head going, 'Your mom's going to go to jail for this,'" Mathisen said in an interview on NPR. Mathisen was one of the lucky ones, as a physician who had the means and wasn’t too ill to make her way to another state. Some of the other plaintiffs weren’t able to travel. Two of them developed sepsis [systemic infection] while waiting for Texas hospitals to approve their abortion procedures. One had such severe blood clotting that her limbs turned purple, then black.
In August, District Judge Jessica Mangrum issued a preliminary injunction in Zurawski to enable doctors to use their “good faith judgment,” in consultation with their patients, to determine when they needed an abortion to preserve their health or life. The judge also found SB8 (the bounty hunter law) unconstitutional. But the state of Texas immediately appealed her decision, putting it on hold until a judgment is issued by the Supreme Court of Texas, sometime in 2024. At the hearing on November 28, Beth Klusman, the lawyer representing the state of Texas, actually argued that Texas had no responsibility to clarify the so-called exceptions to its own abortion bans for pregnant people with potentially fatal complications. “There’s going to be some hard calls,” shrugged Klusman. Not our problem if pregnant people can’t get care, are harmed or even killed as a result of the law we passed. Unbelievable!
Two things are worth keeping in mind at this point. First, the lack of clarity in abortion laws is not a glitch, but a feature. These laws are meant to curtail access by creating (legitimate) fears and confusing and intimidating health providers—and right-wing leaders have zero intention of making them clearer. The uncertainty is essential. Second, so-called exceptions to abortion bans clearly don’t provide access to care, and neither are they meant to. They do, however, serve one function—they provide cover for the right-wing's control campaign.
“We will ban the essential health service that is abortion, but the few women who truly deserve an abortion will be OK because of this provision in the law that we have no intention of honoring.” Yeah, we now know how that rolls. It’s not compassion, it’s deliberate cruelty. I wish the media and some of our allies would stop treating these exceptions “for the life of the woman” (or her rape, incest, etc.) as actual safeguards, once and for all. They’re just grotesque talking points. Keep that top of mind when right-wing senators and representatives want to institute a national 15-week abortion ban in the US. They will be sure to list the exceptions in the law as evidence of their reasonableness. But there will be no help for a Cox, Watts or Mathisen, unless they are able to travel abroad.
Unsurprisingly, Ken Paxton and his right-wing cohort will also stop at nothing to deny critical health care to trans persons. Nineteen US states including Texas now restrict or ban transgender children from accessing gender-affirming care such as puberty blockers and hormone therapies, even when their own parents support the care. Speaking of travelling to another state for care: In November, Paxton's office demanded a hospital in Seattle turn over the numbers of Texas children treated at the hospital, the medications prescribed by the hospital to Texas children, the diagnosis for each medication, the list of Texas labs that performed tests prior to these medications being prescribed, and more. The hospital refused to comply, noting that Paxton has no jurisdiction over a hospital in Washington state and that Washington state's "Shield Law" protects it from requests made by states that "restrict or criminalize reproductive and gender-affirming care." Damn right, but how scary is that?
It's clear that all bodies that don't conform to a strict, religious fundamentalist vision of gender roles (motherhood, heterosexuality and cisgenderism) are prime targets of a movement that will stop at nothing to control us.
I don’t want to leave you without a hopeful thought: the unprecedented mobilization of young voters and women voters in the US that this attack on our bodies and lives has sparked. On November 7, 2023 in Ohio, a referendum to enshrine the right to make one's own reproductive decisions in the state constitution passed with a decisive 57% of votes. This was achieved despite multiple attempts by Ohio Republicans to scuttle the effort, including by trying to change the voting threshold to 60% and by misrepresenting the actual content of the constitutional amendment on the ballot handed to voters. But young voters, Black voters and women were not fooled, and they turned out en masse to prevail in Ohio. The same is true in California, Kansas, Kentucky, Michigan, Montana and Vermont, where statewide ballots in 2022 and 2023 have also either affirmed abortion access or turned back attempts to undermine the right to abortion. Ohio’s constitutional amendment took effect on December 7th. I hope it can help Brittany Watts, and all the other Ohioans whose lives have been thrown into turmoil since Roe was overturned. And help turn out voters in November 2024, when all of this and more will be on the line.
As 2023 comes to a close, let’s look out for one another, and fight the right-wing with all we’ve got. Our bodies, our lives.
In feminist solidarity and love to you all—wishing you justice, freedom, happiness and peace in 2024.