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Most of the public commentary on the tragic case of Kate Cox has been emotionally fraught and terribly misleading. Texas law allows termination of pregnancy to prevent death or serious harm to the mother, but just about every reason offered by Cox’s lawyers to challenge the law does not require this procedure, except possibly harm to her reproductive system. Termination of pregnancy should have never come up when it did. Contrary to most public commentary, the Texas law is successfully challenging the deliberate killing of children in the womb while protecting the lives of their mothers.
Even if Texas’ legal language were unclear, ethical clarity is possible on the main issues.
The basic ethical difference is between terminating the pregnancy to deliberately end the life of the child, which is unethical, and terminating the pregnancy to address a medical condition that currently threatens the mother with death or serious harm and which cannot be handled in another way. The Texas law attempts to prohibit the former, which is a method of deliberate killing, and permit the latter, which is a method of addressing medical complications that regrettably results in the death of a child.
Could we say that everyone, pro-choice and pro-life advocates alike, agrees that we do not want a society that ends a human life in order to solve problems when other solutions are available? Finally, could advocates on both sides say that we do not want a society that treats people with disabilities differently than people without them?
If we look carefully at Ms. Cox's case, it appears that she was never in danger of death or serious harm and requested an abortion to avoid risk and suffering. This is terminating her pregnancy to deliberately end the child’s life, not to address an existing medical condition. The baby’s condition itself, Trisomy 18, does not endanger the mother’s life or future ability to carry a child to term and is not a reason for abortion. For Kate Cox’s advocates to emphasize the baby’s condition makes it sound like the child’s disability, rather than danger to the mother, is the actual reason for the abortion. Some might think the fact that the child may be stillborn or not live very long after birth is a reason for abortion. Ms. Cox has expressed the desire that her child not suffer, but the abortion procedure that would be used on the child would dismember it, inflicting suffering. If the thinking is to relieve Ms. Cox of the burdens of carrying a child whom they do not expect to live very long, then she is avoiding those burdens by inflicting great suffering and death on a disabled child when she would have borne them for a baby without disability. Texas law rightly defends her child against all these reasons to terminate the pregnancy.
But what about the danger to Ms. Cox? It is concerning that Ms. Cox went to the emergency room multiple times. When she did, doctors and the emergency room staff successfully managed her complications without terminating the pregnancy. They would have continued to manage any complications that emerged, if possible, without terminating the pregnancy — but they could have terminated it ethically if emerging circumstances made that no longer possible. Pro-life doctors have developed ways of terminating pregnancies under these conditions that respect the life of the child, even when they cannot save the child, while saving the mother. Sometimes public commentary misrepresents this standard medical practice as waiting until the mother is at death’s door before intervening and presents actual cases as evidence. But these are cases of medical malpractice rather than unjust law.
It is also concerning that carrying her disabled child could require another cesarean section, increasing the risk of complications in future pregnancies. Avoiding grave harm to her reproductive system is the only reason stated thus far that, depending on the circumstances, could justify terminating a pregnancy and meet the legal standard of laws like the one in Texas. Her doctors’ goal, of course, should be to manage her pregnancy so that she can greet her Trisomy 18 baby and go on to have another successful pregnancy. If that becomes impossible, doctors, the patient, and the family confront the truly difficult ethical and legal issue. Should doctors terminate the pregnancy to avoid the kind of harm to a mother’s reproductive system that increases risks of complications for future pregnancies?
Not if doctors can manage those complications, and it seems likely that they can. Even the evidence provided by Ms. Cox’s lawyers at the Center for Reproductive Justice shows that doctors can likely manage complications associated with a 3rd and 4th C-section and drive down risks for carrying future pregnancies to term:
When The Dispatch asked the Center for Reproductive Rights (CRR) for studies backing up the argument that a third C-section would place Cox at “high risk” for “multiple serious medical conditions such as uterine rupture and hysterectomy,” a spokesperson pointed to an amicus brief filed by the American College of Obstetricians and Gynecologists (ACOG) and Society for Maternal-Fetal Medicine. That amicus brief itself cited a 2006 study published in ACOG’s own peer-reviewed journal that found that hysterectomy was required for 0.65 percent of mothers after a first C-section, 0.42 percent after a second, 0.9 percent after a third, and 2.41 percent after a fourth.
The 1% risk of hysterectomy after a 3rd C-section is very low, and the Center for Reproductive Rights and the courts should be forthcoming about all the risks in cases where human life is at stake. In any case, it seems that the Cox family tried to avoid all these risks by deliberately ending the life of their child well in advance. In her interview with the New York Times podcast “The Daily,” Ms Cox said that when the Trisomy 18 diagnosis was confirmed, they went to their doctors, said that they did not want to continue the pregnancy, and asked what the options were. At that point, they asked for an abortion, which Texas law prohibits, and not a procedure for complications that doctors could foresee emerging and begin to manage.
The Texas Tribune quoted Ms. Cox saying “I do not want to put my body through the risks of continuing this pregnancy, … I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days.”
Everyone should be able to empathize emotionally with the difficult circumstances Ms Cox is facing. At the same time, we want women to treat disabled children in the womb the same way they treat those without disabilities. Ms. Cox was prepared to carry to term a child without disabilities. She might have done so for her disabled child if her social support structure, especially her doctors, had helped her imagine the benefit of carrying and meeting her disabled child and assured her of their ability to manage her pregnancy.
Ethically competent medical practice avoids two extremes. It refuses to wait until the mother is near death or grave harm before intervening, and it refuses to end a child’s life in order to avoid the possibility of complications that could lead to death or serious harm for the mother. Avoiding these extremes creates a range of reasonable medical judgment within which doctors manage complications, help mother’s give birth to their children, avoid procedures that end the child’s life, and prioritize the well-being of the mother, even if that means terminating the pregnancy in a way that the child cannot survive.
The public presentation of the case of Kate Cox has brought more confusion than clarity. More and more, it sounds like a tragic case of ending the life of a disabled child that the pro-choice movement has turned into abortion propaganda, fear-mongering, and legal maneuvering.
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