As for Ms. Cox’s personal medical risks, they relate primarily to her two prior cesarean sections. Continuing her pregnancy would have put her in an impossible bind: Either she would have had a third cesarean (major abdominal surgery that could threaten her future fertility), or she would have attempted a vaginal birth, which, post-C-section, carries a low but significant risk of catastrophic uterine rupture. She also had an elevated risk of developing gestational hypertension and diabetes. In my view, these risks are “serious” — to quote the Texas law — particularly to birth a dying child. But they are also not uncommon: If Texas allowed these risks to a woman’s health to satisfy the exception in its abortion law, the exception would be available to anyone with an unwanted pregnancy that is also medically complicated.
And therein lies the problem: There is no nonarbitrary way to identify medically necessary abortions. Anti-abortion legislators and activists often try to place abortions into two categories: “therapeutic” abortions, meaning those that are medically indicated, and “elective” abortions, meaning those chosen to avoid having a child. The Dobbs decision itself engaged in this thinking, finding that Mississippi had a legitimate interest in regulating abortion “for nontherapeutic or elective reasons.”
What this categorization misses is that pregnancy is inherently risky. This is especially true in the United States, which compared to other high-income countries has by far the highest (and worsening) maternal mortality. Every person who carries a pregnancy to term will endure months of significant, and occasionally debilitating, physical side effects and medical risks that include the possibility of death. Given that abortion is many times safer than childbirth, abortions help people avoid medical risks.
This issue extends beyond exceptions for medical emergencies. Take fetal anomaly exceptions, which are typically reserved for “lethal” anomalies in the states that have them. The boundaries of lethality have created deep confusion, in large part because only a tiny number of conditions are 100 percent fatal in infancy. Even a small percentage of babies born with Trisomy 18, the condition Ms. Cox’s fetus was diagnosed with — which is often considered “incompatible with life” — can survive to 10 years old with aggressive treatment. As a result, some even outside the anti-abortion movement have questioned whether it deserves the moniker “lethal.”
But if Trisomy 18 doesn’t count as “lethal,” hardly any fetal diagnosis would. The prognosis of most severe fetal anomalies is complex, involving varying risks of stillbirth and infant mortality, coupled with significant risk of severe disability in survivors, a subset of whom will die in childhood. There is no categorical way to distinguish the diagnoses that are worthy of exemption in anti-abortion laws and those that are not.