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Women increasingly are asking judges — not their doctors — for abortions in red states that have largely banned the procedure, creating a phenomenon not seen even before Roe v. Wade established a national right to abortion in 1973.
But as the wheels of justice turn slowly and gestation continues apace, those lawsuits could fizzle out when the pregnant plaintiffs travel to states that allow abortion.
Already a woman in Texas who asked a court for permission to have an abortion went to another state for the procedure, as a class-action lawsuit mounts in Kentucky.
“We should expect more and more of these types of lawsuits,” said Lois Shepherd, a health law professor at the University of Virginia.
Ms. Shepherd cited the Supreme Court’s landmark ruling last year in Dobbs v. Jackson Women’s Health Organization, which returned jurisdiction over abortion to the states, as the prime driver for the new phenomenon.
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Rachel Rebouche, dean of Temple University Beasley School of Law, noted the novelty of women asking judges for permission to get abortions under various state laws that have exceptions only for the woman’s life and other medical conditions. Dobbs is relatively new, she said, and state laws changed quickly after the ruling.
“The more and more examples there are … it gets to the question of workability,” Ms. Rebouche said. “I don’t know how long it stands on the books.
“I think it is really a sign of the drastic times we are in, but I don’t think it’s surprising,” she said.
Kate Cox, a 31-year-old mother of two, made national headlines when the Texas Supreme Court denied her request this week to have an abortion after she learned of a fatal diagnosis, trisomy 18, of the fetus and that carrying the pregnancy to term could harm her future fertility.
Despite visiting an emergency room, having a risk of uterine rupture and increased vital signs, the Texas Supreme Court said Ms. Cox did not meet the state’s exception for an abortion — when the woman’s life is in jeopardy.
A lower court judge had granted her request, but Texas Attorney General Ken Paxton brought the issue to the state’s highest court.
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The Texas justices reasoned the court must respect the law as it was enacted by the Legislature.
Ms. Cox, whose attorneys said had deteriorating health, ended up traveling out of state to seek an abortion — something other women are doing in the wake of Roe being overturned.
Ms. Cox is believed to be the first woman to go to court to ask permission to receive an abortion, but women across the country are crossing state lines as she did for the procedure.
Jaci Statton of Oklahoma fled to Kansas after she was denied an abortion for a partial molar pregnancy, which could lead to cancer and cause urgent medical care. She drove to the neighboring state while bleeding during an hours-long car ride.
She did not seek a court order for an abortion ahead of time due to the time-sensitive nature of her emergency. After receiving treatment in Kansas, Ms. Statton in September filed a federal complaint to the Department of Health and Human Services against the Oklahoma hospital’s emergency room that turned her away.
Her lawyers say that, under the Emergency Medical Treatment and Labor Act, the Oklahoma hospital should have treated Ms. Statton, who was hemorrhaging and suffering from dizziness. The complaint requested that the federal government investigate the hospital for its conduct.
Ms. Statton said she was turned away from several doctors — first after an ultrasound tech declined to consent to her abortion, suggesting he still heard a heartbeat. She said, though, that all the doctors told her she had the same dangerous condition.
She and women in Idaho and Tennessee are waging legal battles to clarify when doctors are permitted to perform abortions. They’re represented by the Center for Reproductive Rights, which also represented Ms. Cox in Texas.
Alongside Ms. Cox’s court battle this month, another woman in Kentucky, known as Jane Doe in court filings, is heading to court. She filed a lawsuit last week looking to end her eight-week pregnancy.
Little is known about her condition, but she sought class-action status for herself and other pregnant women in the state to overturn Kentucky’s abortion ban. The lawsuit claims the state’s law infringes on the right to privacy.
Her attorneys from the American Civil Liberties Union have encouraged other women in the state seeking abortions to contact them.
Amber Duke, executive director for the ACLU of Kentucky, said recently that “everyone should have the right to make decisions privately and make decisions for their own families.”
It’s unclear if Jane Doe still needs the abortion or if she received the procedure out of state, as her attorneys have refused to say.
“Jane Doe sought an abortion in Kentucky, and when she could not get one, she bravely came forward to challenge the state’s abortion ban,” said Brigitte Amiri, deputy director for the ACLU’s Reproductive Freedom Project. “Although she decided to have an abortion, the government denied her the freedom to control her body. Countless Kentuckians face the same harm every day as the result of the abortion ban.”
About one year after Dobbs was issued, 14 states had moved to ban abortion outright unless it’s to save the woman’s life. Five states, meanwhile, have moved to severely limit abortion to between six and 15 weeks.
In some states — such as Texas, where abortion is banned except to save a woman’s life — doctors who perform abortions could face jail time and civil penalties, including the loss of their medical licenses, if they’re prosecuted over the procedure.
Mary Ziegler, a professor at the University of California Davis School of Law, said doctors are reasonably concerned about trying to interpret state laws’ exceptions and don’t want to risk being prosecuted.
“Part of what is happening here is not just the way the law is written but the type of penalties that are attached,” Ms. Ziegler said. “How many people are going to roll the dice on that?”
The Arizona Supreme Court, meanwhile, is hearing arguments this week over the state’s near total abortion ban and whether doctors can face penalties.
John Seago, president of Texas Right to Life, said the pro-choice groups are strategically litigating these cases — aiming to get protections for doctors performing abortions and looking for loopholes.
“What they are pushing for is that any doctor can authorize an abortion no matter the medical circumstance,” Mr. Seago said. “The goal of the pro-life law is to protect life — to protect mothers and their children.”
President Biden said Republicans have politicized abortion via state bans. He encouraged Congress to codify Roe into law, giving women abortion rights nationally.
“Legal and medical chaos, as we are witnessing in states like Texas, Kentucky and Arizona, is a direct result of Roe v. Wade being overturned, and as we predicted would happen, women’s health and lives now hang in the balance. Republican elected officials have imposed dangerous abortion bans that jeopardize women’s health, force them to travel out of state for care, and threaten to criminalize doctors. Their agenda is extreme and out-of-step with the vast majority of Americans,” Mr. Biden said.
• This article is based in part on wire service reports.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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