After creepy misogynist Donald Trump’s devastating inauguration, The Handmaid’s Tale, understandably, took off on Hulu. I’d read the book by Margaret Atwood in college, but my daughter told me not to watch the television series (although she and her friends were loving it). She knew I’m squeamish about “entertainment” featuring oppression and abuse of women, and, in those months, I was overwrought generally, as were so many of us. I listened to her, as I often do, and I’m glad I did.
But what am I supposed to do, being squeamish and easily overwrought when it comes to misogynist cruelty, reading about the latest abortion outrages in states like Texas and Ohio? I think I’d rather watch The Handmaid’s Tale. On the abortion front, we are facing some unusually cruel and sickening shit this week, and reading about it in detail is stomach-turning. At least The Handmaid’s Tale was fiction.
You probably know the most about the case in Texas, perhaps more than you wanted to: Kate Cox, a 31-year-old mother of two, became happily pregnant with her third child. An iconic photo of her is everywhere on MSNBC this week; she’s chic in a black dress, cradling her baby bump. I’ve heard MSNBC’s female anchors refer to her just as “Kate.” Hearing her story, it seems like it could have happened to someone you know.
A wanted pregnancy turned out to be a life-threatening one. Over the last month, she visited the emergency room three times for cramping, diarrhea, and other serious complaints. She learned that her fetus suffered from a genetic condition that would kill it either in the womb or in early infancy, and painfully. Her doctor said her problematic pregnancy could doom her reproductive future—she and husband say they want a big family—and maybe even kill her, too.
Even though Texas has one of the strictest state abortion laws, a six-week ban invoking the “heartbeat” a doctor can supposedly hear at that point after a woman’s last period, the state’s cruel and mostly white male legislature nominally provided an exception to save the “life of the mother.” Cox filed a lawsuit, with the Center for Reproductive Rights, and a trial judge granted her permission to get the abortion in her 20th week of pregnancy. But corrupt Attorney General Ken Paxton stepped in to block it, threatening to prosecute Cox, her doctor, Houston ob-gyn Damla Karsan, and three local hospitals where Karsan has admitting privileges if the abortion proceeded.
The judge’s order “will not insulate you, or anyone else from civil and criminal liability,” Paxton wrote menacingly. For good measure, he also threatened that anyone who helped Cox could be sued under Texas’s insane bounty hunter law (what century is this?), which allows citizens to take legal action against anyone who assists with an abortion.
Cox’s lawyers appealed to the Texas Supreme Court, which agreed to rule on the case. Days passed; Cox moved into her 21st week of pregnancy. With no indication of when the court would rule, and with abortion a riskier matter every week that passes, Cox and her husband left the state to terminate the pregnancy. There is no word on where or when they did so.
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It’s a good thing they fled, because on Tuesday the Supreme Court ruled—and backed Paxton. The ruling must be appreciated in its Orwellian entirety. At first, it reads as if it will side with Cox: It acknowledges that Texas law permits abortion when “in the exercise of reasonable medical judgment” a doctor determines their patient is “at risk of death” or faces a “serious risk of substantial impairment of a major bodily function unless the abortion is performed.”
Sounds good, because here’s what Dr. Damla Karson wrote about Cox’s condition: “It is my good faith belief and medical recommendation that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed.”
But no: As Vox’s Ian Milhiser notes, Karson didn’t use the magic words “reasonable medical judgment,” and thus her patient couldn’t get an abortion. Milhiser compares this Texas charade to the Jim Crow voting rights laws that required Black voters to guess the number of bubbles in a bar of soap, or jelly beans in a jar. It would be funny if it wasn’t so sickening.
Despite the nightmarish situation she found herself in, Cox had the wherewithal to take her case to a lawyer, and then when her legal effort failed, she could travel to another state to obtain her necessary medical procedure safely. At the same time, as fate would have it—to force us to pay attention to the way race and class plays out in these stories?—we are learning more about the case of Brittany Watts, the Black 33-year-old Ohio woman who is being charged with abuse of a corpse because she miscarried her already dead 22-week-old fetus into her toilet and flushed the remains. If you feel sick reading those words—and I feel sick typing them—well, this is what we’re doing to women in red states.
Watts’s attorney says her client went to her doctor, who told her “she would miscarry,” adding, “When the bleeding and the pain from the impending miscarriage got severe, she did the same thing that many women who miscarry at home do. Watts went into her bathroom, miscarried into her toilet and flushed.” When Watts later took herself to a hospital with “life-threatening hemorrhaging,” in a nurse’s words, and was admitted, police were called, and the prosecution of Watts commenced. They literally removed her toilet as evidence. The law in question states: “No person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.”
Forensic pathologist Dr. George Sterbenz testified to authorities that the unborn fetus had died before the miscarriage. Watts, who by all accounts wanted the child, had visited the hospital twice before the delivery. “This fetus was going to be nonviable,”Sterbenz told authorities, “because she had premature ruptured membranes—her water had broken early.” She was nonetheless charged with a felony and could face two years in prison. It is clear that Ohio authorities are using this case to prosecute Watts for an abortion she didn’t have and apparently didn’t want, using the technicality of “mistreating a corpse.” Such sick fucks.
When Watts’s story emerged on social media, dozens of women related similar stories. It’s not uncommon for miscarriages to happen unexpectedly, spontaneously, and often while women are on the toilet. I can’t imagine the pain and fear of facing something like that, but it would never occur to me that I’d face anything but kindness and condolences from the people who love me. It would never occur to me that I’d face prosecution.
But we cannot expect kindness and condolences from the men, and it’s mostly men, who are creating this cruel abortion archipelago throughout the country, torturing women in red states with fervent hopes of bringing their misogyny to us in the blue states. Get a load of Texas Supreme Court Justice John Devine, who has boasted of being arrested 37 times for harassing women entering and leaving abortion clinics. It gets worse. He has also bragged that he and his wife continued the extremely high-risk pregnancy of their seventh child, which was likely to cause the death of either the mother or the child, or both. Devine’s wife survived; the baby died shortly after its birth. That’s Devine’s plan for the rest of us.
We must pay attention to both of these abortion- and pregnancy-related injustices facing us this week, Kate Cox’s and Brittany Watts’s. I’m always a little worried when the stories of women who wanted their pregnancies but faced death or their child’s death become front and center in this debate. Abortion is healthcare, and people rely on it for a wide variety of reasons. Most who have abortions already are mothers who can’t care for the children they have. Some are too young, or too old, or just not ready to bring a life into the world. And yes, some very much want to be mothers, but face life-threatening agonies and turn to abortion. If they live in blue states, that’s an option. Increasingly in red states, it’s not. Fourteen red states ban abortion entirely, two at six weeks after the last period, and two at 12 weeks.
There are two other important takeaways from these devastating stories. Though it failed, Cox’s lawsuit matters hugely, because it’s the first time since Roe was overturned that a pregnant woman has brought a lawsuit seeking an abortion while she is still pregnant. You’ll probably recall that when brave Texas plaintiffs earlier this year sued the state for denying them medically necessary abortions, lawyers attacked their claims. When these lawsuits were filed, these women were no longer pregnant; why were they suing the state, an assistant attorney general asked, and not their own doctors? Did Attorney General Ken Paxton tell you that you couldn’t get an abortion? Well, no, not directly, was the answer, although the question was disingenuous and offensive. The legal argument seemed to be that the women were failed by their doctors, not the state.
Well, Ken Paxton told Kate Cox she couldn’t get an abortion, loud and clear. “Kate Cox called their bluff,” said Elizabeth Sepper, a law professor at the University of Texas at Austin, told the Texas Tribune. “Ken Paxton came in, in a very personal way, and put the state of Texas in embodied form between her and an abortion.”
We have no evidence that Brittany Watts sought an abortion, only that she sought prenatal care for her child, at least twice. Hers is a tragic but familiar story: A Black woman in America lost a pregnancy she apparently wanted. Black infant mortality is 2.4 times the rate of white infant mortality int his country. Black maternal mortality is 2.6 times the white rate. But I must also say this: In a state or country that treated women like Watts with compassion, she might have been offered an abortion as an alternative to what her doctors termed an inevitable miscarriage, which she suffered, painfully, alone on the toilet at home. She might have turned down the option, but at least she’d have had it. The constitutional amendment protecting the right to an abortion in Ohio that passed in November was too late to change the hidebound red-state attitudes of local prosecutors. We all need to do some proselytizing, especially in states where abortion bans are being fought, successfully, to keep injustices like what Watts suffered from happening again.
The other important takeaway is: Kate Cox had the means to bring a lawsuit, and to leave the state for an abortion when it failed. In Ohio, Brittany Watts could not save the baby she wanted, and miscarried alone at home. Now she has a GoFundMe campaign to pay for her mounting legal fees. The fund cites Margaret Atwood’s “Gilead.”
