Stretching “medical necessity” to the breaking point

“I need to end my pregnancy now so that I have the best chance for my health, for parenting my children, and for a future pregnancy.” That was the case 31-year-old Texas mother, Kate Cox, made in The Dallas Morning News. She was then 20 weeks pregnant. Since then, the Supreme Court of Texas in a per curiam opinion overturned the lower-court decision that granted her an exemption to the state’s post-Dobbs abortion restrictions on the basis of her allegedly non-viable pregnancy. Cox’s attorneys and sympathetic commentators have emphasized pregnancy risks like hypertension and infection as well as, in Cox’s particular case, the need for a Cesarean delivery given her prior history. Of course, all surgeries risk complications. In the end, Cox left the state to get an abortion elsewhere but pursued the case anyway.

Texas ruled that none of the potential “difficulties” allegedly associated with Cox’s pregnancy rose to the level of “life-threatening” medical conditions. The “good faith belief” on the part of Cox’s doctor that an abortion was necessary did not clear the hurdle of current state law, according to the court. The doctor would have needed to determine, with “reasonable medical judgment,” that Cox herself had a life-threatening condition and that an abortion would prevent death or bodily impairment. Common risks associated with pregnancy, Cesarean deliveries included, do not rise to that level. “A pregnant woman does not need a court order to have a life-saving abortion in Texas,” the court added.

The unborn child in this case was diagnosed in late November with trisomy 18 (i.e., Edwards Syndrome), a genetic abnormality that can result in miscarriage, stillbirth, or post-birth death. There are only about 3,300 per year in America. There is less than a one percent likelihood that a woman will have multiple pregnancies wherein the child is diagnosed with trisomy 18. Severe harm or death to the mother was not cited in the case as a material risk. Cleveland Clinic lists no risks to the mother. There is no increased risk of preeclampsia. Rather, Cox’s physician simply claimed that abortion was the “safest” option. All “risks” cited by Cox were common to all pregnancies.

Cox’s case is noteworthy because it predicts the next stage in the state-level battle to heavily restrict or totally ban abortion, even in red states: Cox was the first to seek a court-ordered, pre-authorized abortion. Although her doctors claimed abortion was necessary, they were unwilling to abort Cox’s child absent a court order. More attempts will surely follow across the country as it moves toward a Balkanized legal regime on questions of pregnancy, sexuality, and child-rearing. The latter contains particularly polarizing potential.

Analogies to Cox’s arguments are low hanging fruit in this instance, but that doesn’t mean we shouldn’t pick them.

Replace abortion with the obvious example, murder predicated on avoidance of difficulty, discomfort, or non-life-threatening risk. That is, homicide without any self-defense justification. No one would buy it. And yet, the idea of a “fetus” as somehow a distinct species, an intruder, a parasite provides some kind of linguistic license for such arguments to be entertained by courts in the first place. Cox did make it to the highest appellate panel at her disposal, after all.

Or imagine a plaintiff making a similar argument about slavery around the last time America was this regionally divided. This example is especially apt given how often economic rationales are given for abortion. Defenders of chattel slavery often cited public and personal safety concerns (i.e., mob violence and insurrection), not to mention economic ones, to argue against abrupt cessation of the practice. Few would accept such special pleading now.

Since Genesis 3, risk and pain have accompanied pregnancy. In a different way, risk and pain accompanies work too. Neither of these curses cease until we return to the dust. The safest option is to not give birth. The safest option is also to not walk outside in the morning or drive a car down the road or climb onto an oil rig, and so on. Put differently, the risks of pregnancy can be mitigated if sex is avoided entirely. Of course, the latter suggestion does not suit whatever wave of feminism we are currently riding. Nor does the special duties given to parents to raise children (Proverbs 1:8), or to men to provide for their families (1 Timothy 5:8).

A modern obsession with safety—not to mention abnormal prolongation of life—is not an excuse to cease natural, God-ordained activity (Genesis 1:28), whether human reproduction or economic production. These things are not safe, but they are good. Marriage is good. Children are good. Work is good. God said so and our nature is encoded with desires and capabilities for them. True medical care should aid natural human function, not frustrate or literally abort it. And, in any case, the interest of safety from typical risks does not on any rational basis permit homicide, especially of the most vulnerable citizens among us.

The justices on the Texas Supreme Court ruled justly. Standard, commonplace risks or difficulties associated with pregnancy do not constitute a “medical necessity” for an abortion. Otherwise, the exception would become the rule. Of course, that is likely the idea behind these challenges to state bans to begin with.