Opinion: The Kate Cox case shows the cruelty of Texas’ abortion law

Opinion by Jocelyn Viterna

(CNN) — Editor’s Note: Jocelyn Viterna is professor of sociology and chair of studies of women, gender and sexuality at Harvard University. The views expressed here are the author’s own. View more opinion articles on CNN.

After the Texas Supreme court turned down 31-year-old Kate Cox’s appeal, she was essentially left with two choices: she could carry her non-viable pregnancy to term, which her doctors say could threaten her future fertility and even her life — or she could pay to leave Texas and seek an abortion elsewhere.

Cox had filed a lawsuit to terminate her pregnancy at 20 weeks, which was appealed to the highest court in the state. The court held up her request for relief from the state’s abortion ban, and she left Texas to seek an abortion elsewhere. 

Texas Attorney General Ken Paxton commented after the court’s ruling that Cox’s pregnancy did not meet the standard of “life-threatening” required for a legal abortion, and said that if she interrupted her pregnancy in Texas, her physician would face first degree felony charges and civil penalties.

Paxton’s actions have been celebrated by anti-abortion advocacy groups who portray forcing women to carry non-viable pregnancies as compassionate. All fetuses, they argue, deserve a “natural death”— even non-viable ones.

But my research in El Salvador demonstrates that Cox’s fears of health complications and lost fertility are well-founded, and that the nonsensical language of “natural death” hides a more sinister reality: that Texas has legalized the torture of pregnant women.

In El Salvador, women have been required to carry non-viable fetuses to term (meaning around 40 weeks of gestation) since a 1998 law eliminated all legal allowances for abortion. As such, El Salvador provides researchers like me a powerful opportunity to predict how the new Texas legislation will impact women’s health in the years ahead.

To understand the consequences of the Salvadoran legislation, my colleagues and I evaluated the medical records of 239 women diagnosed with fatal fetal malformations in El Salvador between 2013 and 2018. We found that well over half (54.9%) of the pregnant women in our study suffered at least one serious medical complication after the diagnosis of non-viability, and before they were legally allowed to interrupt the pregnancy. And 47.9% of these women had to undergo a physically-invasive medical procedure to manage the complicated pregnancy — medical procedures that would have been avoided if the pregnancy had been interrupted at the moment the malformation was diagnosed.

Take for instance the case of a 40-year-old woman whose non-viable fetus was diagnosed with alobar holoprosencephaly, a fatal congenital malformation in which the fetal brain fails to separate into hemispheres and lobes. Because of the malformation, the fetus was unable to swallow amniotic fluid, which is a necessary part of typical fetal development. The lack of swallowing created abnormally high levels of amniotic fluid, causing the woman’s uterus to swell far beyond expected size.

To prevent the uterus from bursting, doctors twice had to insert a long needle into the woman’s abdomen to drain off the extra fluid while waiting for her to reach 39 weeks. This is the week when the hospital had decided that it was finally legal to interrupt the woman’s complicated pregnancy, even though the fetus was no more viable at 39 weeks than it had been when the anomaly was first diagnosed.

When doctors were cleared to deliver the baby, they realized that the fetus’ abnormally developing skull would prevent a vaginal delivery, and they were forced to perform a cesarean (C-section). The woman began hemorrhaging badly; weeks of severe stretching had damaged her uterus beyond repair. Her doctors had no choice but to remove her uterus to save her life.

All of these complications could have been avoided if the pregnant woman had been allowed to interrupt her non-viable pregnancy earlier. And yet, despite the physical violence suffered by carrying the pregnancy to term and the removal of a major organ, she still watched her baby die, as promised.

The more my colleagues and I dug into the medical cases of Salvadoran women, the more absurd — and torturous — we understood the law to be. To begin, the very notion of carrying a non-viable fetus to term is nonsensical. These fetuses will never survive outside the womb, no matter how many weeks they are legally required to gestate.

The notion of “natural death” is even more bizarre.  Because non-viable fetuses are only kept alive by their mother’s body, they will die a “natural death” shortly after their delivery. This is true whether the pregnancy is interrupted at 20 weeks, as Cox has requested, or at 40 weeks.

Prior to 1998, Salvadoran women were legally allowed to interrupt their non-viable pregnancies after receiving a diagnosis of a fatal fetal anomaly. The doctors I work with report that a common method for interrupting non-viable pregnancies at this time was to administer medication, like Pitocin, to induce labor and delivery. With the passage of the 1998 law, however, this process of early labor induction became heavily criminalized. Now Salvadoran women, like Texas women, are required to carry non-viable pregnancies to term in order to give their fetuses a coveted “natural death.”

But what makes the death of a non-viable fetus after a 40-week delivery “natural,” while the death of a non-viable fetus after a 20-week induced delivery is a felony? Do Salvadoran lawmakers believe that a “natural delivery” is required for a “natural death?” If so, they overlook the fact that labor induction is one of the most frequently performed obstetrical procedures in the world, and that induction rates for non-viable pregnancies are much higher than in typically developing pregnancies.

Nearly 41% of non-viable pregnancies in our study failed to initiate labor naturally and required a medication induction — the very same procedure that doctors used prior to 1998 for much earlier pregnancy interruptions. And tragically, in 27.7% of cases in our study, doctors were forced to deliver non-viable babies via cesarean surgeries. These statistics make clear that it’s not the presence or absence of medical intervention that determines whether a non-viable fetal death is “natural” in the eyes of Salvadoran lawmakers.

And while US pregnancy interruptions often use different procedures than induction, our Salvadoran study finds that any early pregnancy interruption seems compassionate, for both non-viable fetuses and their pregnant mothers, when compared to the complicated procedures required to deliver severely-malformed, 40-week fetuses.

It is telling that neither Paxton nor the Court attempt to define the “natural death” that they so passionately — and mercilessly — pursue. They never explain why having a naturally-occurring and lethal fetal anomaly is insufficient for achieving “natural death,” or why forcing women to endure an additional five months of painful pregnancy and procedures is somehow an act of “compassion.”

International law defines torture as an “aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment” enacted by a public official, typically for obtaining information or for inflicting punishment. Texas laws, as interpreted by the Texas Supreme Court, easily rise to the level of inflicting cruel, inhuman and degrading treatment on women carrying non-viable pregnancies. However, the purpose of this torture is not to obtain information, or even to ensure that a healthy baby is born. The purpose — absurdly — is to ensure that pregnant women carry non-viable fetuses for the same amount of time as they would a viable fetus.

Cox’s case is extreme, but it is not unusual. Pregnancy remains the most dangerous and complicated biological process that humans undertake. This is especially true in the US, where maternal mortality rates are increasing in contrast to broader global trends of improvement.

Yet, instead of working to make pregnancy safer, Texas has ceded critical medical decisions to the very zealots whose talent lies in inventing nonsensical definitions of “natural death.”

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