Abortion Advocacy, Inc.

Recklessness in Media Coverage of Abortion Law

Ever since the Supreme Court’s Dobbs decision overturned Roe v. Wade, abortion has returned to prominence in American discourse. Unfortunately, the polarizing nature of abortion means that getting accurate information can be difficult, especially when media outlets seem more interested in stoking controversy than in reporting news accurately. One could point to countless examples in the immediate wake of Dobbs, such as those that hysterically warned that the government would start demanding access to women’s period-tracking apps to determine if they’d had an illegal abortion.

This trend of exaggerating, if not outright misinforming, has continued most recently in a Texas case that has made national news. In December 2023, a Texas mother named Kate Cox sought to abort a pregnancy after receiving an unfavorable fetal diagnosis. After having given birth to two healthy children, she discovered during her third pregnancy that her baby had trisomy 18, a severe genetic disorder that frequently results in fetal death. Cox and her doctor, Damla Karsan, filed a lawsuit, sponsored by the pro-abortion Center for Reproductive Rights, against the State of Texas requesting that Dr. Karsan be pre-authorized to perform an abortion. The suit claimed that Cox’s situation fell within the permitted exceptions in Texas law and asserted that continuing the pregnancy was risky to Cox’s health and could jeopardize her future fertility.¹

On December 7, a Travis County judge granted a temporary restraining order that would keep the attorney general’s office from enforcing Texas law in the case. That same day, the attorney general appealed the case to the Texas Supreme Court and sent a letter to local hospitals warning them of potential legal ramifications if they allowed the abortion to take place at their facility.² The Texas Supreme Court overturned the restraining order just a few days later, but by that time, Cox had traveled to another state for her abortion.³

Many outlets have called this a miscarriage of justice and have accused the courts of trying to play at being doctors rather than leaving decisions in the hands of medical professionals. Reporters have been sympathetic to Cox, who to them represents a woman directly harmed by Texas’s abortion laws and therefore a poster child for the necessity of abortion on demand. A careful look, however, reveals that much of the reporting on this case has been misleading if not downright false.

Inflammatory & False Reporting

Despite claims to the contrary, Texas abortion laws do allow for a woman to receive an abortion when, in the “reasonable medical judgment” of her doctor, a continued pregnancy threatens her life or “poses a serious risk of substantial impairment of a major bodily function.”⁴ Cox’s doctor claimed that, because of her previous C-sections, the current pregnancy was risky and that any means of ending it other than an abortion (such as inducing labor in the case of a miscarriage or carrying the baby to term and delivering via a third C-section) risked complications that could cost Cox her fertility. The problem is that Cox’s own doctor did not testify that Cox had a life-threatening condition or that abortion was necessary in her “reasonable medical judgment.” Rather, Dr. Karsan said it was her “good faith belief” that Cox qualified for the exception.

This may sound like a quibble over words, but in legal matters wording is extremely important. A “good faith belief” is a lower standard of evidence than a “reasonable medical judgment,” and had the court allowed the temporary restraining order to stand, it would have challenged Texas’s abortion legislation as written. In its ruling the court was clear that it had no desire to usurp the medical judgment of doctors: “The law leaves to physicians —not judges —both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.”⁵ In this case, Cox’s doctor did not (or could not) testify that Cox met the requirements of the exemption, and thus no exemption was granted. If her doctor had testified differently, the court would have had no problem granting the exemption: “Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment.”⁶

Despite the limited nature of the court’s decision, news outlets have consistently worked to generate outrage about the case, and they have done so at the expense of truth. For example, a Time article reported numerous incorrect or inflammatory statements without any additional context or correction.⁷ A few examples:

• The article claims that Cox received a diagnosis of a “fatal fetal condition.” While trisomy 18 is a devastating genetic disorder that leads to numerous birth defects, it does not inherently lead to fetal death. And while the life expectancy of children born with the disorder is short, the child remains a child with a severe disability, not a hopeless case to be disposed of so the parents can get on with having non-disabled children.⁸ This distinction is quite important. Cox was clear that she wants a large family and will continue to have children, so the issue is not that she doesn’t want to accept the risk of pregnancy and childbirth in the future. The problem is that she does not want this specific child because of its disabilities and the high probability that it will not make it to term.

• The article quotes Nancy Northup, CEO of the Center for Reproductive Rights, as saying, “This is why judges and politicians should not be making healthcare decisions for pregnant people —they are not doctors.” But the truth is, the court deferred to Cox’s own doctor, who did not claim Cox’s case met the legal standard to warrant an exception. The court further left open the possibility that if another doctor was willing to recommend abortion in his or her “reasonable medical judgment,” that would be acceptable.

• The article quotes Center for Reproductive Rights attorney Molly Duane: “This is why people should not need to beg for healthcare in a court of law.” This is both inflammatory and false, as the Texas Supreme Court was clear that had there been a legitimate medical indication, there would have been no need for the courts to even be involved: “A pregnant woman does not need a court order to have a life-saving abortion in Texas.”⁹ The article also fails to mention that, since the Texas law took effect, there have been more than 50 abortions that fell into the exception clause, and not a single one of the doctors who performed those abortions has been disciplined or faced legal challenges. In other words, there has been no need for anyone to “beg for healthcare.”¹⁰

• A final Northup quote states that “Kate’s case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work. . . While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.” This is fearmongering, pure and simple. Those whose lives are truly threatened are eligible for an exception, and Cox’s own physician did not think her case rose to that level.

While it is fine for Time to quote someone closely connected to a case, Time’s failure to offer any modicum of balanced coverage while allowing ­inaccuracies to remain unchallenged is advocacy, not journalism.

Or consider the article, “That Texas Abortion Case Is Even Worse Than You Think,” whose title is best described as clickbait. What the article is really about is the confusion around Texas abortion law and what qualifies as an exemption, as there are currently three different statutes (and a pending Texas Supreme Court case that will hopefully bring some clarity). But this is not what the title implies.

Unfortunately, this article contains incendiary and misleading language too, such as the description that Cox “had to flee Texas . . . to end a doomed pregnancy.” “Flee” is a deliberately charged term, and Cox’s lawsuit said that her baby could have been delivered at term, alive —disabled, yes, and requiring additional care —but not doomed. The article also claims that “the state’s Supreme Court slowly decided to substitute its judgment for her doctor’s advice.” This is inaccurate on two counts. As already noted, the court explicitly did not substitute its judgment for that of the doctor. Nor was its decision slow; it came just four days after the initial appeal.

Better Care Needed

Fortunately, not every article suffers from these flaws. A New York Times opinion piece, though explicitly pro-abortion, at least acknowledged the facts of the case, recognizing that risk is not the same as imminent danger and that trisomy 18 is not the immediate death sentence some outlets make it out to be.¹¹ The author also acknowledged the potential of utilizing perinatal hospice, an option most outlets ignored. It is not that those opposed to abortion wish for a woman or her unborn child to suffer; they simply believe that there are better alternatives than ending the life of a child merely because it is disabled.¹²

Cox’s case is a difficult one, and her child’s diagnosis is heartrending, something no parent ever wishes to go through. Nevertheless, the way this case has been presented has been misleading at best. Using one woman’s tragic story to push a narrative about the supposed necessity of abortion on demand is manipulative and deceptive. Cox’s case should remind us that in discussions of abortion there are hurting human beings in need of our compassion. But it also exemplifies our need to be cautious about uncritically accepting every story as it is told and to do the work of checking things out for ourselves.

Notes
1. Case document: Cox v. Texas.
2. This letter was posted on X.
3. For an overview of the case see “Five Things to Know about the Latest Abortion Case in Texas,” NPR, December 13, 2023.
4. Supreme Court of Texas, No. 23-0994, On Petition for Writ of Mandamus, 2.
5. Supreme Court of Texas, 4.
6. Supreme Court of Texas, 6.
7. Solcyre Burga and Simmone Shah, “What to Know about the Texas Woman Who Sued the State to Get an Abortion,” Time, December 12, 2023.
8. For more information about trisomy 18, see “Edwards Syndrome (Trisomy 18),” Cleveland Clinic, December 13, 2021.
9. Supreme Court of Texas, 6.
10. “Texas Supreme Court Rebukes District Judge Who Authorized an Abortion in Violation of State Law,” Texas Alliance for Life, December 13, 2023.
11. Greer Donley, “What Happened to Kate Cox Is Tragic, and Completely Expected,” The New York Times, December 17, 2023.
12. For more on perinatal hospice, see Stephanie Richardson, “Perinatal Palliative Care,” Dignitas 23, no. 2 (2016): 1, 4–8.