The OBGYN Justices

Anyone who has practiced or studied the dark art of politics, eventually arrives at the conclusion that nothing ever happens by accident in that practice. All occurrences are the product of planning, which might succeed with a positive outcome, or fail with unintended consequences. None of that, however, can be considered the result of dynamics that by happenstance resulted in a causation. A human mind set the pieces in motion, regardless of the nature of the final impact.

The findings of the Texas Supreme Court, regarding the pleadings of Texas Attorney General Ken Paxton and related to the pregnancy of Kate Cox, therefore, were never in doubt. The most stringent anti-abortion law in all the land had to be protected and that meant even if a woman’s life, every now and again, might need to be sacrificed. That degree of determinism was almost explicit in the text of the absurdly restrictive Texas trigger law. Consequently, neither the high court nor the AG even tried to express the slightest whiff of sympathy for the mother of two who was carrying a fetus with a fatal condition labelled trisomy 18, known for destroying internal organs. Her child was going to be miscarried, stillborn, or die shortly after birth, but by god, this is Texas, and it was fated to be born.

Cox’ case hinged on a clause in the state’s abortion law that allows for a medical exception when the woman’s health, or even her life, is at risk. The language in the statute requires doctors to exercise “reasonable medical judgment” prior to performing an abortion procedure. The standard is sufficiently vague that physicians tend to refuse providing abortions because there is a risk their prognoses might be challenged and found to be incorrect. Hesitancy is understandable when the doctor might be prosecuted for various types of felonies, face $100,000 fines, lose their licenses to practice medicine, and upon conviction by a local prosecutor, get up to 99 years in prison because overzealous Republican lawyers clearly know more about biology and childbirth than doctors. In fact, Texas Supreme Court justices have just made themselves the de facto OBGYNs of every woman in the state. The judges can begin to diagnose cases from the bench.

Allowing for medical exceptions in the new abortion regulations was a political ploy to get concerned opponents to give the regulation some benefit of a doubt. There does not appear, however, there was ever any intention, at least in the Texas version of the law, to provide women with abortions unless they were close to death. Kate Cox knew her attorneys were going to lose her case before the Texas Supreme Court and she had already left the state to seek an abortion in a location where such medical care is legal, and the electorate more sane. She is, at least in the case of her ability to travel, more fortunate than many other Texas women with problem pregnancies. Prior to the change in abortion laws in this state, about 50,000 were performed annually. The first year after the new regulations took effect, the number fell to 34, and in the first six months of 2023, only 17 exceptions had been granted.

It is pretty easy to extrapolate what those numbers mean. There were close to 50,000 women in Texas last year, (minus the 34), dealing with problem pregnancies, who either carried to term or went out of state for their health care services. Most of those women, though, likely now have a baby they did not want and often cannot afford, or a lifelong connection to a man whose presence can make their lives miserable. Tens of thousands of women find themselves trying to figure out child care when they can barely pay the rent and a high number of women exists who have been physically and emotionally traumatized by laws that made their situations go from bad to permanently awful. Their choices have diminished for what they might do with their own lives.

People against abortion in Texas and the rest of the country refer to themselves as “pro-life,” but they are really just “pro-birth.” They call abortion clinics and providers “baby killers,” but it now ought to be clear to everyone that conservative pro-lifers have become "mother killers.” Women will die because laws exist that criminalize finding a way to deal with their condition. The “pro-birthers” cannot be said to have concern for the child, especially in Texas. A child born in this state as a consequence of an unwanted pregnancy is in trouble if the mother is economically disadvantaged. There are almost no programs to help that child get health care, food, clothing, or a higher education, and if they are born with disabilities, the state government will put them on a waiting list for services, which will not deliver help for decades because there are tens of thousands already in that line due to a severe lack of funding and government concern. A child in the womb, even a zygote, is important to Republicans. A child breathing in the real world is of no great concern.

Unsurprisingly, the nine justices on the Texas Supreme Court, who unanimously ruled Ms. Cox was not eligible for an abortion procedure, are all conservative Republicans. There has not been a Texas Democrat cloaked in one of those robes since 1994, in part, because the justices are elected on statewide ballots rather than in their judicial districts, which means the political party that campaigns the most effectively wins the court. Voters, who might know a bit about a judge in their home district, tend to be even less informed about them than they do local candidates. Votes generally are cast party aligned, which might explain the election of John Devine in 2012.

Devine’s attitude regarding a woman’s right to choose is unsubtle. When he ran for election to the high court, Devine campaigned with a video on his website that talked about his wife carrying her doomed baby to full term. According to the narrative, it was their seventh child and the fetal condition risked killing the mother and the baby at delivery. Devine, though, praised his wife for “fearlessly” delivering the child, who the couple named Elizabeth. The baby died an hour after birth.

Devine, who got attention for a legal fight to keep the Ten Commandments on the wall of his Houston courtroom, revealed in his statewide campaign that he had been arrested 37 times for protesting at abortion clinics. The number was never verified by his campaign or journalists but his public sentiments during a 2012 Freedom of Religion rally in Fort Worth made it clear he cared more about religion and conservative ideology than he did the lives of women. Nobody has bothered to point out that it’s not exactly a good look for a candidate seeking a job on the most august legal body in the state to brag about breaking the law 37 times. Apparently, it’s different if you violate laws while being a conservative Christian.

A Future Justice Brags About Breaking the Law 37 Times

What sort of hope does a woman have when her pleading for an abortion that might save her life goes before a legal process that has already stated its opposition to the medical procedure? A potential justice who brags, probably untruthfully about being arrested 37 times for protesting at abortion clinics, can be expected to twist and strain the law with interpretations to serve his political and religious beliefs. Of course, Devine demands that Kate Cox and her doctors obey the statute because it is one he likes but when there were legal abortion rights under the U.S. Constitution that he did not care for, he was fine with breaking the law.

The national attention being granted the Cox story is certain to have political impact. Hypocrisies on the right are piling up so high they will be impossible to bury with political advertising. Republicans marching on their mantra that there needs to be less government are busy banning books and rewriting texts for public schools and forcing their Christian religion into public institutions are unable to see their own contradictions. Texas has a state government that keeps businesses from mandating that employees get Covid vaccines while also enforcing laws that prevent a mother from getting an abortion even as her doomed child threatens that mother’s life. Logic has abandoned Texas law.

And you ask me what I like about Texas?

(Just wanted to say thanks to everyone who subscribed this past week or so. Sure is reassuring and good for making a man feel like he is not speaking into the dark. If you haven’t subscribed yet, please consider signing up, free is nice, paid is inspiring. I promise to not always write about Texas and depressing politics. I’ve got endless stories to share. I’ve been around some, and it’s all coming out now. Also, please share this with a friend, if you think they might have an interest. - JM)