Texas abortion case shows how court orders can be practically worthless
Kate Cox, a woman in Dallas who was 20 weeks pregnant with a fetus diagnosed with trisomy 18, an almost always fatal condition, was the first person after the fall of Roe v. Wade to go to court to get an emergency order permitting abortion. Cox’s case was historic in other ways, too: For decades, court orders for abortions generally were granted only for minors acting without parental consent.
On the surface, this would seem to be exactly the kind of rare exception Texas lawmakers had in mind when they passed their state’s highly restrictive abortion laws. Cox’s physician told her that she was at high risk of suffering life-threatening complications — and that her ability to have a third child would be compromised — if she carried her pregnancy to term. But when a Texas judge granted Cox’s request for an emergency order to obtain an abortion, the state’s attorney general not only appealed the decision but threatened each of three hospitals at which Cox’s doctor has admitting privileges with criminal and civil penalties if the abortions were performed there.
After the Texas Supreme Court temporarily blocked the lower court’s emergency order pending further review,
Cox left the state to get an abortion.
Although the state was ultimately unable to prevent the abortion, the attorney general’s initial response raised a troubling question: Can a state really punish doctors for carrying out a procedure explicitly allowed by a court order?
The answer is that a court order, or injunction, like the one Cox got offers unclear protection, especially in Texas. Start with SB8, the law that lets anyone in Texas sue an abortion doctor or anyone “aiding or abetting” them for at least $10,000 per abortion. SB8 made headlines in 2021 because of its bounty structure, which seemed to incentivize complete strangers to target abortion doctors and anyone in a patient’s support network who could qualify as an accomplice. The law also contained a little-noticed provision that prevented defendants from shielding themselves with a court order overruled by a later court, even if the court order was in effect when the abortion took place.
It’s worth asking whether this is constitutional. The 14th Amendment still guarantees due process of law, which requires defendants to have notice of what is prohibited — and when. How can doctors and other defendants have notice that an order issued by a court is no good before another court has even weighed in?
US Supreme Court precedent is less clear on this than we would hope.
In 1920, the court decided Oklahoma Operating Company v. Love, a case that involved Oklahoma’s antimonopoly laws. Justice William Brandeis addressed the possibility that a party challenging a law would win an injunction early in litigation only to lose later. Brandeis’s opinion reasoned that when this happened, there should be no penalty for actions taken “pendente lite,” or during the litigation, so long as a plaintiff had reasonable grounds for a challenge. Winning a court order certainly suggests that this challenge had a reasonable foundation.
But the Supreme Court muddied the waters in 1982 in Edgar v. MITE Corporation, which struck down an Illinois law on corporate takeovers. Two of the dissenting justices, Thurgood Marshall and William Brennan, wrote that an injunction early in a legal battle offered “permanent protection from penalties for violations of the statute that occurred during the period the injunction was in effect.” The majority didn’t address Marshall and Brennan’s assertion, but Justice John Paul Stevens wrote separately to argue that the court simply didn’t have the authority to create this kind of protection.
The Supreme Court’s decision in Oklahoma Operating Company v. Love is still the law, but the Texas attorney general, Ken Paxton, and other conservatives are betting it won’t be for long. Other antiabortion activists have even broader aspirations. Jonathan Mitchell, the former Texas solicitor general, has argued that states have the authority to prosecute people for abortions that occurred when Roe was the law because the Supreme Court later overruled it.
If people can be prosecuted for actions taken in reliance on a court’s word, the implications will be radical. Abortion opponents in recent decades have prioritized the idea of criminal punishment for anyone who assists abortion, especially doctors. In the aftermath of the 2022 ruling in Dobbs v. Jackson Women’s Health Organization, physicians in restrictive states have steered clear of violating criminal laws, and the patients who have managed to access abortion have traveled to other states or ordered pills online. But doctors relying on a valid court order might assume they are protected and feel obligated to intervene in cases like Cox’s. If Paxton’s theory works, that could open the door to more prosecutions of doctors. Texas law authorizes penalties up to life in prison for performing abortion.
This threat will serve to discourage doctors from performing abortions, even in cases where patients ultimately prevail in court. Given that pregnancy lasts only so long, even merely delaying a procedure for someone like Cox might stop an abortion from taking place at all — never mind what the law says about exceptions.
The Supreme Court’s Dobbs decision was unprecedented in the fact that it destroyed an individual right that had existed for decades. Cox’s case is a reminder that Dobbs may be just the beginning. If some abortion opponents have their way, anyone who convinces a court to recognize their rights would have to look over their shoulder, wondering if a later court will change course.