Abortion: Harbinger of Healthcare

A harbinger is an omen for things to come. The word is often used in a negative sense. It’s the perfect word to describe how abortion policy is playing out. Take this week. Two major events transpired.

First, the Texas Supreme Court made a controversial decision regarding the medical exemption for abortion in the case of Kate Cox, a woman carrying a fetus with a fetal chromosomal abnormality. The ruling prompted her to seek an abortion out of state. Second, the Supreme Court agreed to review the issue of whether mifepristone, a commonly prescribed abortion medication, can be prescribed through telemedicine visits and shipped to a patient’s home by mail.

At first blush, it might feel like the two cases have little to do with one another aside from being about abortions. But the similarities run perniciously deep and reflect a common theme when it comes to abortion policy: non-clinically trained judges use legal rhetoric to justify an inherently moralized position on abortion.

Kate Cox sought an abortion due to severe health complications that posed a significant risk to her life. Under Texas law, there’s a provision for a medical exemption that allows abortions in cases where the mother’s life is in danger. However, the Texas Supreme Court denied Cox’s request for a medical exemption. The Texas Supreme Court believes a fatal chromosomal abnormality to the fetus, which would result in a high risk pregnancy for the mother, doesn’t qualify.

The medical exemption is a crucial aspect of reproductive healthcare, ensuring that women with life-threatening conditions can access safe and legal abortions. By denying Cox’s request, the court has raised concerns about its understanding of maternal safety and its ability to appropriately adjudicate complex clinical concepts. The Texas justices wrote:

“No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”

Through the magic of legal rhetoric, the Texas Supreme Court justices defined the clinical threshold for medical exemption for a patient who was carrying a fetus that would not survive pregnancy. This has consequences. The Texas Supreme Court’s denial of medical exemption for Kate Cox has significant implications for all women’s reproductive rights in Texas.

It raises questions about the accessibility of safe and legal abortions for women facing life-threatening conditions. By narrowing the interpretation of the medical exemption clause, the court has effectively limited the options available to women in desperate situations.

Now we see the same pattern at the federal level. The level of accessibility for the abortion drug mifepristone, which is used for medication induced abortions, has been hotly contested among federal judges since Justice Alito wrote the majority decision for the case that overturned Roe v. Wade. Ever since then, abortion rulings by fiat have been caroming across courts throughout the country.

This particular case revolves around the 5th Circuit’s ruling early in 2023, which upheld restrictions on mifepristone initially set in 2000 by the Food and Drug Administration (FDA), requiring the drug to be dispensed in person by a healthcare provider. In recent decades, the FDA became more lax on the restrictions, allowing the drug to be prescribed through telemedicine. The recent ruling aimed to reverse that. However, it was immediately challenged by federal judges in other districts through stay orders and special interest groups challenging the ruling.

It eventually landed at the 5th Circuit Court of Appeals. The higher court upheld the original provisions imposed on mifepristone by the FDA. The court argued these restrictions were necessary to ensure the safety of patients and to prevent potential misuse of the drug.

At the center of this legal back and forth is Judge Kacsmaryk, a former anti-abortion activist, known for his conservative stance on reproductive rights. In his original ruling, he emphasized the importance of protecting fetal life and maintaining the integrity of the medical profession. However, critics who challenged the ruling argued these regulations impose unnecessary burdens on women seeking medical abortions, especially in rural areas with limited access to healthcare facilities.

Now the matter will appear before the Supreme Court, tasked with resolving whether the original 2000 restrictions should be upheld. To guess into how the Supreme Court will rule, just remember that a significant number of justices sitting on the highest court in the land called themselves Originalists.

This is just the beginning. More of these cases will appear. Public sentiment will continue to rile and the courts will continue to rule. But the matter will never truly resolve. Instead, we’ll see a veritable game of whack a mole throughout the legal system with activist judges using the courts to impose their preexisting stance on abortion through the veneer of finely tuned legal rhetoric.

Call it what you want: judges playing doctor or judges practicing medicine. But this goes well beyond judicial activism. It harkens back to a time when Puritans used the machinations of a legal system to impose horrific sentences on women who were decried as witches from nothing more than accusations.

We may have advanced technologically since those times, but the way we continue to use the legal system to impose moralizations on others remains the same. There’s not much separating the way judges are acting on abortion cases today from those who were in positions of power centuries ago accusing and convicting and sentencing women to death.

Medicine and law have never coexisted harmoniously. There’s always been tension. Perhaps that’s the will of the public – a notion fashioned out of the mold of the late justice Antonin Scalia’s views on government. But when non-clinically trained judges are passing personal judgments on patients regarding matters directly related to their health, we’ve gone beyond the will of the public.

Hopefully, we find a way to incorporate sound clinical principles in future judicial rulings. But as long as judges are able to disregard established clinical guidelines set forth by medical societies, any sense of optimism feels like a false hope.

In fact, this past week feels more like a harbinger of things to come.