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Pregnant women take a leading role in new legal battles over abortion

Kate Cox caught the attention of the nation last week when she asked a Texas judge for permission to end her pregnancy.

Three days later, a pregnant woman filed suit anonymously in Kentucky, arguing that the state’s near-total abortion ban violates her constitutional right to privacy and self-determination.

And across Texas, Tennessee and Idaho, several dozen women who had previously experienced pregnancy complications are awaiting decisions in a string of cases that could expand the health exceptions in their state abortion bans.

“I was condemned to endure both physical and emotional torture, knowing that I was going to deliver a stillborn,” said Nicole Blackmon, one of the plaintiffs suing Tennessee, when the lawsuit was announced in September. “I want some good to come out of my ordeal, so I am joining this case.”

The burst of lawsuits that put pregnant women front and center reflects a shift in approach by the abortion rights movement, which has long brought challenges through claims by clinics and doctors who remain affected by abortion restrictions beyond the narrow window during which patients would be seeking to end their pregnancies.

The strategy behind the new, high-profile lawsuits has both legal and political implications for the fate of abortion access in the ever-evolving aftermath of the fall of Roe v. Wade, according to experts tracking the cases. They enable advocacy groups to chip away at the new laws by highlighting particular circumstances that jeopardize the health of the mother — while compelling the courts, as well as the country, to reckon with some of the most harrowing consequences of abortion bans.

“For the past year and a half, what has resonated in the public consciousness is patient stories,” said David Cohen, a law professor at Drexel who specializes in constitutional law and gender. “It’s much more compelling when you have [Cox] as opposed to Planned Parenthood.”

It is not yet clear what long-term effects the cases brought by patients will have. When the Texas Supreme Court ruled against Cox on Monday night — soon after the 31-year-old left the state for an abortion — they set no precedent for future abortion cases, said Molly Duane, Cox’s lawyer at the Center for Reproductive Rights. The other cases, which are all still pending, could fundamentally change the way the certain exceptions in the bans are interpreted and applied — or, in the case of the Kentucky challenge, overturn the ban altogether.

Many of these patient-led cases center on the medical exceptions in state abortion bans. While the more than two dozen abortion bans enacted since the fall of Roe v. Wade all include some kind of exception for the mother’s life, the laws use ambiguous language, with many permitting abortions in a “medical emergency” without offering a concrete definition of that term. This ambiguity has led to patients being turned away from hospitals, with doctors fearful of the prison sentences they could face if they make the wrong call.

Since the Center for Reproductive Rights filed its first patient-led case to broaden medical exceptions in March, Duane said her email and voice mail have been flooded with messages from other women who have run up against an abortion ban, eager to tell their stories. Many had faced pregnancy complications and been denied care. Some, like Cox, reached out while they were still pregnant.

“She’s not the first person I’ve talked to in the middle of an emergency,” said Duane. “She’s just the first person who filed a lawsuit.”

Duane said she’s open to taking more cases for pregnant women seeking a court order for an abortion.

Cox, a mother of two, had sought an abortion after learning from her doctor that her fetus had a fatal genetic condition and that carrying the pregnancy to term could jeopardize her health and future fertility. The Texas Supreme Court late Friday night temporarily blocked a lower-court ruling that would have allowed Cox to get an abortion under the state’s near-total abortion ban, and later on Monday night, reversed the lower court’s decision.

Separately, Texas Attorney General Ken Paxton in a letter on Thursday threatened to take legal action if Cox had the procedure in the state, warning doctors and hospitals that anyone involved in performing an abortion for Cox would face “civil and criminal liability” that could include “first-degree felony prosecutions.” He contended that Cox’s case did not meet “all of the elements necessary to fall within an exception to Texas’ abortion laws” and that the judge was “not medically qualified to make this determination.”

Antiabortion advocates in Texas said they’re aware the public is not fully on board with their abortion ban — and that Cox’s case was deeply upsetting to many.

“After Ohio, Virginia and Kentucky, obviously there is a very volatile cultural conversation going on,” said John Seago, the president of Texas Right to Life, the state’s largest antiabortion organization, referring to Ohio’s abortion ballot measure and recent Republican losses at the ballot box, which many attributed to the abortion issue.

In the wake of the Cox case, Seago said, “we need to be clearer than ever that in these circumstances we value the life of the child no matter what the doctors are saying,” arguing that many doctors in Texas are abortion rights advocates.

There will almost certainly be more cases like Cox’s, said Steve Vladeck, a professor at the University of Texas School of Law. At this point, he said, there isn’t a clear legal path to overturning many of the country’s abortion bans, including the one in Texas. In lieu of that kind of sweeping litigation, Vladeck said, abortion rights groups are doing what they can for individuals.

“One of the advantages of being able to challenge abortion bans on their face is that you can get courts to issue categorical rulings,” Vladeck said. “But when every case turns on an individual patient’s medical facts, there’s going to be no precedent at all.”

These kinds of cases can raise public awareness about how difficult it can be for women to utilize medical exceptions to state abortion bans. The women who testified in a Texas hearing in July captivated the country with their vivid testimony about the life-threatening pregnancy complications they faced — and what it was like to be denied care. Cox’s case went viral as it unfolded over the weekend and on Monday, covered extensively in the national media.

In terms of public opinion, “Kate Cox’s case was effective almost precisely because she lost,” said Mary Ziegler, a law professor at the University of California Davis who specializes in abortion law. “Many Americans were like, really? That’s not allowed under Texas law? The idea is to make real to Americans what this means.”

As the 2024 presidential election nears, Democrats will be eager to keep abortion in the news — an issue where President Biden’s position is more widely popular than that of former president Trump’s, the leading candidate for the Republican nomination. Cases like Cox’s could help the American public understand the full ramifications of abortion restrictions, Duane said.

“If there is a national 15-week abortion ban, this is what the entire country would look like,” said Duane. “And I need people to understand that.”

After watching what happened to Cox, Duane said, fewer women might be willing to come forward, especially those who are actively pregnant. It’s a lot to ask someone to put their health on the line, she said, and wait for the court to make a decision about your medical care. If they have the option to leave the state, she said, many women with pregnancy complications would want to end their pregnancies as soon as possible.

Cox spent the whole weekend in bed, said Duane, who was in regular communication with her.

“She’d ask, ‘Have we heard from the court yet? Have we heard from the court yet?’” Duane said. “Who would sign up for that, especially now?”

The women who are able to pursue litigation typically have resources, Vladeck said — and options.

“There are plenty of women who aren’t going to have the time or resources to litigate,” he said. “The cases that make national headlines are going to involve women who probably have the ability, as Kate Cox did, to travel out of state for an abortion.”

This post appeared first on The Washington Post

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