Plus, a reader asks what gives me hope.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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Quick hits.
- In a rare criticism, President Biden insisted the Israeli government needed to change strategy in its war with Hamas and embrace a two-state solution or risk losing international support. (The rift) Meanwhile, the Israeli forces have begun pumping seawater into underground tunnels in Gaza as part of their effort to destroy Hamas infrastructure. (The operation)
- The New York Court of Appeals ruled that the state must redraw its congressional districts before the 2024 election, a decision that is likely to benefit Democrats in the race to control the House of Representatives. (The ruling)
- The COP28 Summit ended in Dubai, where nearly 200 nations signed a pledge to transition away from fossil fuels. (The deal)
- Senate Minority Leader Mitch McConnell (R-KY) said a deal to provide Ukraine with more funding and beef up border security is practically impossible to pass before Christmas, signaling the Senate might be sent home for holiday break without a measure in place. (The report)
- The Supreme Court announced on Wednesday that it would hear a case involving the abortion pill mifepristone, the first major case involving abortion since it overturned Roe v. Wade. (The case)
Today's topic.
The Texas abortion case. On Monday, the Texas Supreme Court reversed a lower court's ruling that would have allowed a woman to obtain an abortion under the state's medical emergency exception. Just hours before the court's ruling, the same woman, Kate Cox, left the state to terminate her pregnancy.
Before the dramatic reversal by the state Supreme Court, a state district court judge had sided with Cox, granting her and her doctors a temporary restraining order against the state so she could legally have an abortion without fear of punishment. Cox had sought the exception after learning that her fetus had trisomy 18, or Edwards Syndrome, which results in fetal loss in over 80% of cases and can risk future fertility of the mother. Roughly 10% of babies diagnosed with trisomy 18 survive past birth, and only 10% of those survive their first year. Cox was 21 weeks pregnant.
Texas has a near-total abortion ban anytime after fetal cardiac activity is detected — usually around six weeks. The ban does not make any exceptions for fetal abnormalities, rape, or incest, but permits abortions if a "physician believes that a medical emergency exists." The law received a great deal of national attention not just for its strictness, but also because of its structure. Rather than being enforced by the state government, any citizen can sue abortion providers for alleged violations, and a plaintiff can receive a cash reward if the accused from their case is found guilty. Critics of the bill described it as a "bounty system."
Cox's lawsuit is believed to be the first attempt by anyone to receive a court exemption for an abortion since the Supreme Court overturned Roe v. Wade last year.
Shortly after the district court's ruling, Texas Attorney General Ken Paxton issued a letter threatening to prosecute any doctors who helped facilitate the abortion and said the charges could come at the end of the court’s 14-day restraining order. He also suggested Dr. Damla Karsan, Cox's doctor, would not be insulated from civil and criminal liability, and said that any hospital where the abortion took place could also be liable.
The Texas Supreme Court re-emphasized that the state’s abortion law delegates the decision about when an abortion is necessary to medical professionals. However, the ruling denied Cox's doctor a restraining order that would have protected her from prosecution in this case, ultimately leaving her open to fines or jail time for providing the abortion.
The court faulted Karsan, Cox’s doctor, for saying in court filings that she had a "good faith belief" Cox is entitled to an abortion rather than noting that she made a "reasonable medical judgment."
"No one disputes that Ms. Cox's pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child's trisomy 18 diagnosis," the court said. "Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses."
Today, we're going to break down some arguments about the case from the right and left, then my take.
What the left is saying.
- The left is outraged by the Texas Supreme Court’s ruling and says the case sets a frightening precedent.
- Some suggest we’re likely to see many more cases like this in Texas and other states with similarly strict laws restricting abortion access.
- Others say the case shows how far the pro-life movement is willing to go to prevent abortions.
In CNN, Mary Ziegler said Cox “is exposing a chilling truth about abortion law.”
“Cox’s case and others like it expose how unworkable abortion exceptions are under current law in states with virtual bans, especially when they are attached to harsh penalties like life in prison. Conceding that a woman like Cox is right could threaten to send much else about criminal abortion laws toppling down,” Ziegler wrote. “Suits like Cox’s expose how hard it would be to devise a workable abortion exception… if a state requires harsh punishment — Texas, for example, authorizes life in prison for abortion.”
“Republican lawmakers often seem to want it both ways on abortion. They define themselves as pro-life but insist on compassion for women, especially in the so-called hard cases like Cox’s. But what is happening in Texas complicates that narrative,” Ziegler said. “Texas claims compassion for women but requires that their lives or a major bodily function be at imminent risk before a doctor can step in. And Texas claims to protect life by forcing a woman like Cox to carry a child who almost certainly won’t live while threatening her ability to have a child who will.”
In The Guardian, Moira Donegan argued Cox’s case “won’t be the last.”
“By refusing to let her end this pregnancy, Paxton and the state of Texas in effect allowed Kate Cox to be tortured, and that she was forced to flee to escape that torture. Cox will not be the last woman in this position. She will not be the last woman to make a public plea to be permitted an abortion for a dangerous and non-viable pregnancy; she will not be the last one who is denied. She is part of a growing cast of abortion rights plaintiffs, a product of Dobbs’s cruelties and of the shifting strategic posture of the reproductive rights movement.”
“The way we talk about abortion has warped in the wake of Dobbs. We use bloodless language of gestational limits; we may even be tempted to describe once-unheard of 15 week bans as comparatively ‘moderate’. We look on the bright side, like to the fact that Cox, denied the care that will keep her healthy and alive in Texas, was able to go elsewhere,” Donegan wrote. “Two years ago, a woman in Cox’s shoes was able to control her own body and life on her own terms; now, she has to go before a court, all her virtues on display, and beg not to be maimed.”
In The Austin American-Statesman, Laura Hermer wrote “in opposing [Cox’s] bid to get an abortion, Paxton shows his cards.”
“Women like the ones in these lawsuits, who have doomed fetuses or doomed pregnancies, are trying to make the least awful decision for themselves and their families in response to a terrible, unwanted situation. Preventing Texas physicians from providing them with standard medical care – an abortion – under such circumstances isn’t ‘protecting life.’ We don’t prevent physicians from providing life-saving care to someone who had a heart attack,” Hermer said. “This isn’t about protecting innocent fetuses. It is not about getting government out of the lives of Texans. Rather, it’s about dehumanizing women by subordinating their will to their biology.
“Women of reproductive age know better than anyone that they are biological beings. They menstruate. They ovulate. They know they can get pregnant, with all that pregnancy entails. In Texas, pregnancy now means that the pregnant woman exists primarily as a host for her fetus. Everything else is subordinate. Paxton knows this,” Hermer wrote. “Paxton is not pro-life. Nor is anyone who supports his office’s conduct on this issue.”
What the right is saying.
- The right mostly supports the court’s decision but acknowledges the challenging elements of the case.
- Some say potential birth defects or disabilities are not reason enough to justify an abortion, even if there is some risk to the mother.
- Others say Paxton went too far in his interpretation of the law and undermined what the pro-life movement is supposed to represent.
In RedState, Jennifer Oliver O'Connell suggested “we need to look beyond the talking points” when discussing this case.
“Trisomy 18 (or Edwards Syndrome) is not always a fatal diagnosis. It's a troubling one that can result in pregnancy complications, birth defects, and a stillborn birth. But trying to paint it solely as destructive to the child and the mother is wrong. How do we know? Because families have chosen to ignore a diagnosis or a warning and have allowed their child to go to full term. Former Senator Rick Santorum and his wife Karen made this choice in 2008,” O'Connell wrote. “The Santorums are devout Catholics (they have eight children) and chose life despite the diagnosis. Bella just celebrated her 15th birthday.”
“Unfortunately, whether it's the pro-life side or the pro-death side, there is an agenda that makes conversation difficult. What is necessary are actual sound policies to best support life for both the mother and child. What has occurred in Texas is troubling no matter which side you are on. There are no ‘winners,’ and the biggest loss is that Baby-Girl Cox was not given a chance to be,” O’Connell added. “Why do we wish to discard children, especially potentially special-needs or health-challenged children, rather than do all we can to help them survive and thrive, no matter how long that might be? Why do we not give families making this difficult decision the support necessary to see life not as an option but as the only quality choice?”
In The Federalist, Rachel Roth Aldhizer said the case “exposes the need for protections for disabled children.”
“As Cox v. Texas demonstrates, children with other genetic conditions are at great risk across the country. Ms. Cox alleges that the current abortion ban targets her constitutional rights as a Texan, as she and her physicians believe continuing her pregnancy threatens her life and liberty, despite compelling evidence,” Aldhizer wrote. “States that have passed abortion restrictions need to understand that provisions explicitly protecting disabled children are critical to the pro-life position. The power of the state should be focused on protecting the truly vulnerable.”
“When my own son was diagnosed with a set of fatal birth defects at 17 weeks gestation here in North Carolina, it was indeed devastating, but my health was not at risk. My son and those like him deserve the same protection that is afforded to unborn children with Down Syndrome under North Carolina law. Anything less is not acceptable. Diagnosis of a particular disability should not threaten a child’s right to life, whether in the womb or out of it, or cause a mother to egregiously argue that her child’s disability threatens her life.”
In The Fort Worth Star-Telegram, Nicole Russell argued “Paxton’s threat to doctors over abortion” isn’t pro-life.
“This is a lose-lose situation for everyone, most of all for Cox. Paxton’s punitive statement seems anathema to the pro-life movement that enacted Texas’ abortion ban,” Russell said. “If Cox is forced to go through with the pregnancy and survives, her baby could die and she may struggle to conceive again. If Cox is allowed to have an abortion, she still loses her baby. She may not conceive again. For a mother — for parents who desire children — both of these are heartbreaking. This is the reality of life that all laws about abortion attempt to address.
“Paxton’s attempt to enforce the law is understandable from a legal standpoint but stunning from a medical, empathetic or even optical view. The punitive nature of Texas’ law was always a bridge too far and anathema to the pro-life movement which seeks to aid mothers in keeping, loving and raising their precious children. Life is the goal, not fear. A law that seeks to punish a doctor for trying to keep her patient alive and healthy is not wise or good.”
My take.
Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.
- I’m personally more to the “pro-choice” side, but I see the arguments from the many honest and sincere people who disagree.
- In this case it’s hard for me to accept the state of Texas restricting Cox’s medical decision, and I think more pro-life people should see why.
- There’ll be more cases like this, and I’m certain Democrats will use them in 2024.
In the last four years I've written publicly about abortion a lot in Tangle, so you can read my old pieces if you want a more fleshed-out perspective on my views. The short version is that I fall more into the “pro-choice” camp. Legally and constitutionally, I don't think the government should have a role in this decision, and I think it is antithetical to small-government conservatism to promote state intervention on issues with a great deal of moral ambiguity and a divided public. Of course, that perspective is informed by my own personal moral and religious feelings. Any question intersecting with religion and morality is incredibly complicated, but I've explained how I came to my views in the past.
I know that millions of smart and sincere people disagree with me. Virtuous ethical, moral, and legal arguments in the pro-life movement abound, especially among pro-lifers who consistently carry that ethic across various issues. We published a reader essay from one of those people a few years ago (and I encourage you to read it). Fundamentally, I believe there are good legal and ethical reasons to have certain limits on abortion, and I don't view pro-lifers as insidious evil zealots trying to reduce women to nothing more than child bearers.
All that being said, I do think this case is an example of the pro-choice side’s “nightmare scenario” of how abortion restrictions infringe on a woman’s right to make her own health care decisions. Kate Cox was stuck in an incredibly painful and difficult position, one that — according to Texas state law — should have been left up to her and her doctor.
Instead of facing a system that greatly limits abortion but also supports the best judgment of medical professionals, which is what proponents of Texas's abortion law say it does, Cox ran into an attorney general penning threatening letters and a court system that split hairs on her doctor’s language to refuse to afford her those protections. And for what? She just crossed state lines and got an abortion anyway.
This is a moral and legal failure by the pro-life movement in Texas, and it’s counterproductive to their ultimate goal of winning more people over politically. Many in the pro-life movement have contended that Cox doesn’t get to “kill” a child because the fetus has a disability, which are the moral grounds they want to have this argument on. But that is a reductive and disingenuous framing of the choice she faced. It is true that Cox could have carried her pregnancy to term, facing huge odds of a stillbirth or a baby who would not survive their first month. It’s also true she may have been able to do that without hurting her chances of having children in the future. It’s even possible, though incredibly unlikely, that her child could have lived into their teens or even adulthood.
On the other hand, it was exceedingly likely that everything would have gone the opposite direction. Her child would very likely have died before birth, shortly after birth, or in the first year of their life, and by bringing her pregnancy to term Cox would have hurt her chances of having children in the future, which she has said she wants to do. What a fraught, tragic, awful position for an expecting mother to be in. On a personal level, I struggle to imagine how it would feel to have my own desire to have children in the future threatened by a court’s decision. It is mind boggling to me that someone in Cox’s position should have her options limited by a group of state Supreme Court justices or a state attorney general.
And to be clear, Cox's doctor was not particularly ambiguous about what was going on. As her legal team argued in the original complaint:
“It is also Dr. Karsan’s 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.”
Does anyone really think there is much ambiguity in that statement?
While judges should not be prioritizing political optics, it’s my job to analyze them. And it's impossible to ignore the political ramifications of decisions like this. Democrats are cleaning up in elections across the country on abortion rights already, and if you are interested in how they might drag President Biden across the finish line in a 2024 race, or regain control of the House or hold onto a slim majority in the Senate, this is your answer. Being able to point to states like Texas and say "look at how they are treating women's rights on the most difficult, thorny personal choices there are," will be their number one strategy.
Your questions, answered.
Q: What gives you hope for 2024 and the future?
— Alex from Chicago, IL
Tangle: Thank you for this question. With all the terrible things that have been dominating the news lately, it’s a good reminder that we have to remember what’s working in our country and what’s good in the world. It’s also widely known that there’s a negative bias in media — that news organizations emphasize bad news, and that readers do, too. That’s part of the reason we finish every weekday newsletter with a good news story.
On that note, let’s start with what we covered at the end of Monday’s newsletter: Childhood mortality has plummeted over the past century, and it’s continuing to go down all over the globe. But it’s not just childhood mortality that’s improved over the past century. Life expectancy has exploded. So has literacy. At the same time, despite a recent uptick, crime in the U.S. has been decreasing over the past 25 years. And even with the last two decades being marred by a deterioration of peacefulness, from the long-term view we are becoming more peaceful as a species.
We often think of the world we’re born into as "normal," but we’re currently living in a period of greater education and general prosperity, and I’m hopeful that that will continue..
Speaking of education, I’m also optimistic about scientific progress and what the future holds. As Derek Thompson wrote during the Covid pandemic, we’re seeing alternative energy getting more affordable, AI making us more efficient, and mRNA vaccines becoming a more proven technology. None of those advancements are risk-free, of course. More alternative energy could mean different kinds of environmental damage or spurts of high energy costs. Certain vaccines could create certain health risks. AI has struck fear into plenty of technologists.
But long-term, I think each one offers way more upside than downside. It is not hard for me to imagine a world in the near future where technology allows us to live more prosperously and do less damage to our planet, while working a little less and spending a little more time with family and friends, all with more access to better medical treatments and more robust disease prevention.
The last thing that makes me optimistic is just doing this work. I took a big bet that there is an appetite for non-partisan news that exposes you to opinions outside of your bubble, and you have all rewarded me. I’ve started to do my end-of-year lookback, and there’s just so much good news from Tangle. That means that there are thousands of you who value work like this, and there are probably hundreds of thousands more. In an era of hyper-partisanship, online echo chambers, and so much divisive rhetoric, I’m more hopeful than ever that there are people out there who want to come together to fix the many broken parts of our politics and media ecosystem.
Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.
Under the radar.
Muslim Americans in swing states have launched a national campaign against the reelection of President Joe Biden for his handling of the Israel-Hamas conflict. The leaders met in Dearborn, Michigan, earlier this month and convened others from states like Minnesota, Arizona, Wisconsin, Florida, Georgia, Nevada, and Pennsylvania, starting a campaign to #AbandonBiden and vowing to make him a one-term president. The campaign speaks to the mounting political pressure facing Biden from Muslim and Arab leaders frustrated by his refusal to pressure Israeli leaders towards accepting a ceasefire. Politico and CBS have the story.
Numbers.
- 55%. The percentage of Americans who say it should be possible for a pregnant woman to obtain a legal abortion if she wants it for any reason, according to a Wall Street Journal-NORC poll published in November.
- 18%. The percent increase in support for access to a legal abortion for any reason since 1973.
- 14. The number of U.S. states where abortion is banned in almost all circumstances.
- 7. The number of U.S. states that do not ban abortion outright, but restrict abortion access earlier in pregnancy than the standard set by Roe v. Wade.
- 22. The number of plaintiffs challenging Texas’s abortion laws after seven women joined an ongoing lawsuit last month.
- 5-99 years. The sentencing range for physicians convicted of performing an illegal abortion in Texas.
- $10,000. The amount that a private citizen can sue to collect from anyone who funds, facilitates, or provides illegal abortion care in Texas.
The extras.
- One year ago today we covered the Senate's two immigration bills.
- The most clicked link in yesterday's newsletter was the story of Xi's political purge in China.
- Rejected: 704 Tangle readers responded to our poll asking if the presidents of MIT, Harvard, and Penn should receive discipline with 50% saying they should lose their jobs. 23% said they should be disciplined but keep their jobs, 18% said they should not receive discipline but the backlash is deserved, and 5% didn't think they did anything wrong. "Whether anyone has actually called for the genocide of Jews is irrelevant, the answer to the question is unequivocally ‘no’. A clear and consistent standard must be applied to protect all people from the threat of violence," one respondent said.
- Nothing to do with politics: The end-of-year reviews begin. Rolling Stone with the 21 Best Memes of 2023.
- Take the poll. What do you think of Texas's abortion law? Let us know!
And remember...
There is a fresh video up on our YouTube channel:
Have a nice day.
At elementary schools across Louisville, Kentucky, dozens of dads show up once a month to start the morning with hugs, high fives, smiles, and support. They call themselves the Flash Dads, and they started greeting kids at the Jefferson County Public Schools in Kentucky seven years ago. Now, there are several dozen men who go to elementary schools all across Louisville and line up to greet students, helping them start their day on a positive note. The Flash Dads are "community members showing up for students who sometimes don't have anybody showing up for them," participant Roger Collins said. Another member of the Flash Dads, James Bogan, signed up so he could surprise his grandson one day at school. "It's contagious and I've been doing it ever since," he said. “We're not just there that day. We're there whenever you need us. It's not a one day thing, it's a lifetime thing." Yahoo News has the story.
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