Kate Cox and the cruelty of abortion bans

Kate Cox has become the first American woman to sue for an abortion since Roe v Wade – the 1973 ruling that gave abortion constitutional protection – was overturned last year.

Earlier this month, the 31-year-old mother of two sued the state of Texas after being told by her doctors that her baby would likely not survive – and that she herself could die from the pregnancy. A lower court ruled in Cox’s favour. But the Republican-dominated Texas Supreme Court intervened and put a temporary block on her case while it reviewed the evidence. On Monday, Cox’s lawyers announced that she had left Texas to obtain an abortion elsewhere.

Cox is not trying to make a political statement. She is seeking an abortion after discovering her third child will be affected by chromosomal condition Trisomy 18, an abnormality that causes Edwards syndrome. This condition often results in miscarriage or a stillbirth. The babies born with it rarely live beyond two weeks of life. And those who do survive for longer are almost always severely disabled, needing constant daily living support.

Before the US Supreme Court struck down Roe v Wade, a ruling that had endured for decades, the decision to end or continue Cox’s pregnancy would have been for her to make with the support of her doctors. Though flawed in some regards, the Roe v Wade framework was humane, moderate and compassionate.

Now, it’s gone. Since Roe v Wade was struck down, 14 US states have enacted near-total abortion bans. State judiciaries have the power to decide whether, even in exceptional circumstances, a woman can have an abortion.

This makes for a hellish state of affairs. Judges’ decisions on abortion can often be arbitrary, as we have seen in the case of Cox. For one court, a diagnosis of Trisomy 18 was a sufficient reason to grant her a legal exception to the abortion ban, on the grounds that she might die without it. Yet the Texas Supreme Court remains to be convinced.

In many US states, so much now rests on the reasoning of judges. This is profoundly unfair on the women involved. The decision to abort a pregnancy is incredibly ethically complex. Which is why it must ultimately be made by the women themselves.

A woman in Cox’s position is faced with a difficult dilemma. She will be thinking not just about herself, but also the baby inside of her. She will have to consider not only the dictates of her own conscience, but also how the father of the baby feels and the impact her decision might have on him. Then, in Cox’s case, there are the implications for the rest of her family – including her two children.

We all may have our opinions on Cox’s predicament. But none of us is in a better position to decide what she should do than she is.

This is what Roe v Wade recognised – that a woman’s decision about if, when and with whom she has a child is a private matter. This is not a decision to be taken by a judge. It is a deeply personal decision to be made free from the public gaze.

It is now clear how much American women have lost following the overturning of Roe v Wade. They have lost their voice. They have been reduced to the passive recipients of the decisions of others – decisions that will shape their lives to the most profound degree.

Depriving women of control over their own bodies is morally objectionable. Especially in Cox’s case. How can it be right that a judge can decide that she must endure pregnancy and childbirth before, in all likelihood, having to grieve the death of her child? And how can judges possibly make this decision on her behalf, even when doctors agree that the birth would endanger her life? This is beyond cruel.

The personal, private nature of abortion has been forgotten. Every pundit has an opinion, every lawyer has an interpretation of statute and every politician has a position. But in the end, an abortion must come down to a woman’s decision. And hers alone.

Ann Furedi is author of The Moral Case for Abortion: A Defence of Reproductive Choice.

Picture by: Kate Cox.