WWhen Kate Cox got the news that her baby would likely only live a few days, she went online to explore her options. Cox, a 31-year-old mother of two living in Texas, couldn't get an abortion, but she also knew she didn't want her baby to suffer.
Then Cox came across the news that twenty Texas women had come forward to tell a court that they, like her, had been unable to get an abortion in medical emergencies. Within days, Cox also went public: She became the first woman since the fall of Roe v Wade to sue for an abortion while actively pregnant.
Dozens of women in the United States have now filed lawsuits claiming they were denied abortions, even amid pregnancy complications that left them are often at great risk. Their voices have redefined the conversation around abortion rights in the US since the fall of Roe v Wade, addressing the unique circumstances that can lead to unexpected abortions, the complicated realities of pregnancy, and the medical and ethical difficulty in transposing both into law.
Ultimately, Cox fled Texas for an abortion, her lawyers said earlier this week. Hours after their announcement, the Texas Supreme Court overturned a lower court order allowing her to terminate her pregnancy in her home state.
In the wake of Cox's lawsuit, dozens of people have contacted Cox's attorneys to say they want to find a way to help — or that what happened to Cox happened to them.
“I think a nerve has been struck. People think the laws are too extreme, which they are,” said Nick Kabat, an attorney with the Center for Reproductive Rights, which represents Cox and several other women who have filed lawsuits after their abortions were blocked despite medical emergencies. “People realize how dangerous it is. Pregnancy is already complicated, and if the state stands in the way of doctors providing medical care to patients, that's just a bad idea.”
Technically, all abortion bans in the US have some kind of exception that allows people to have an abortion in an emergency. But numerous doctors have said that these exceptions do not take into account the complexity of the pregnancy. Due to the vague and politicized language of the bans, as well as the severe criminal penalties for providers who violate the law, doctors say yes They don't know when they can intervene to help patients and are hampered by the fear of persecution.
Instead, doctors say, they are forced to wait and watch until patients are on the brink of death. Then they have to withdraw them.
“A person can decide for himself: what is a medical emergency for him?” said Dr. Ghazaleh Moayedi, a gynecologist from Texas. For a pregnant person “it is an emergency, it is immediate danger, to be forced to continue the pregnancy for one more minute longer than necessary, when they know that their baby is suffering and will suffer and will die and that they will be forced become a major operation with possible life-threatening complications.”
Five women originally sued Texas over its medical emergency exceptions, which the lawsuit hopes to clarify. The suit is named after Amanda Zurawski, whose waters broke too early in pregnancy to deliver a healthy baby. Because her doctors could still detect the fetus's heart activity, she was unable to have an abortion. Days later, she was diagnosed with sepsis. She ended up spending three days in intensive care, and thanks to the scarring on her reproductive organs, she may never be able to get pregnant again.
As the months have passed, more and more women have joined Zurawski's lawsuit. Dr. Danielle Mathisen joined in November. She had fled to New Mexico for an abortion after learning her baby had a condition that would likely cause her to die shortly after birth.
“There are so many things that can harm you during pregnancy, apart from the delivery itself,” says Mathisen, a gynecologist. “The birth itself – you can have major abdominal surgery, you can have a bleed, you can have an embolism. The pregnancy itself – you can get preeclampsia, you can get diabetes. It is not a health-neutral event.”
Kabat declined to say what the future of Cox's lawsuit might look like. The Texas lawsuit involving Zurawski and Mathisen is awaiting a ruling from the Texas Supreme Court.
Similar lawsuits are underway in Idaho and Tennessee. One of the women in the Tennessee lawsuit, Allie Phillips, is running as part of the first generation of female candidates to run after Roe. After her fetus was diagnosed with several fatal conditions, Phillips had to travel to New York for an abortion.
“I can scream on TikTok, I can scream at marches, I can scream at the Capitol every day for the rest of my life. But that won't change the people within those voices,” Phillips told the Guardian. 'I have to be inside. I should be the one voting – on the actual bills, not the ballot.”
In Oklahoma, a woman has also filed a federal complaint against two hospitals. Desperate for an abortion when her unviable pregnancy deteriorated, the woman was told to wait in a parking lot until she “collapsed,” according to the complaint.
Her complaint centers on a federal law that requires healthcare providers to treat people in medical emergencies. Anti-abortion advocates say this requirement does not extend to abortion, while the Biden administration has argued it does.
Now the U.S. Supreme Court could soon become involved in that fight, as the top court has been asked to review an Idaho case about the law and its connection to abortion.
Battles over abortion are also being waged on several other legal fronts – as evidenced by a flurry of developments in recent days.
The U.S. Supreme Court announced this week that it would hear another abortion case involving restrictions on abortion pills. Arguments in that case have not yet been scheduled, but a ruling could be reached by the summer of 2024 – just in time to disrupt the 2024 US presidential election.
In addition, this week, state courts held hearings on multiple lawsuits, some orchestrated by anti-abortion advocates seeking to expand the series of bans put in place since the fall of Roe. Arizona is considering whether to reinstate a 19th-century “zombie law” that would ban nearly all abortions in the state. Abortion foes went to court in New Mexico in a case over another 19th-century law that threatens to create a de facto abortion ban nationwide. A Wyoming judge is now deliberating whether to enact a unique ban on abortion pills.
And while Cox was the first pregnant woman to file a lawsuit seeking an abortion after Roe, she was not the last. Just days after Cox went public, a Kentucky woman announced that she, too, was suing for the right to end her pregnancy in a state that bans nearly all abortions. (It's unclear whether that lawsuit will move forward, as the woman has since learned that her fetus no longer has cardiac activity.)
Regardless of their outcome, the lawsuits filed by patients over the abortion ban represent a “remarkable grassroots movement,” said Nicole Huberfeld, co-director of the reproductive justice program at Boston University School of Law. “I think it is important that patients are willing to speak out and have a voice.”
American conservative Christian organizations have long been adept at finding plaintiffs and filing lawsuits to dismantle statutes that conflict with their beliefs; the case that ultimately overturned Roe arose from a law that had been fixed to be challenged in court. Now, through these lawsuits, the reproductive rights movement is finally responding to those efforts with an initiative of its own.
But, Huberfeld warned, it likely won't be enough to calm the legal chaos.
“These test cases are making headlines,” she said. “But the real answers will lie in writing laws that create a more stable landscape.”