The Texas Supreme Court on Friday night halted a lower court ruling that allowed a woman who is 20 weeks pregnant to have her unborn baby aborted.
The state’s high court blocked a temporary restraining order from Democrat Travis County District Judge Maya Fuerra Gamble after Texas Attorney General Ken Paxton asked the court to intervene. The Texas Supreme Court blocked the order “without regard to the merits” of the case.
The case involves Kate Cox, 31, a mother of two from the Dallas area. The Center for Reproductive Rights filed a lawsuit on her behalf to obtain an abortion after she learned that her unborn baby has Trisomy 18, otherwise known as Edwards syndrome. The original complaint states that the condition means “her pregnancy may not survive to birth, and if it does, her baby would be stillborn or survive for only minutes, hours, or days.”
The complaint also states that Cox had been to three different emergency rooms within a month due to “severe cramping and unidentifiable fluid leaks.” The lawsuit alleges that her history of having two prior cesarean surgeries means continuing the pregnancy “puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy.”
The complaint argues that it is Dr. Damla Karsan’s (Cox’s healthcare provider) “good faith belief and medical recommendation” that Cox’s circumstances “fall within the medical exception to Texas’s abortion bans and laws.” In Texas, abortion is outlawed except to save the life of the pregnant woman or prevent serious risk to her physical health, and a doctor can be prosecuted for performing the procedure. The lawsuit ultimately asked the court to block the state from enforcing its abortion laws to allow Karsan to abort Cox’s unborn baby.
Before the Texas Supreme Court blocked the lower court ruling, Paxton issued a statement saying that the temporary restraining order “will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”
Attorney General Ken Paxton Responds to Travis County TRO: pic.twitter.com/zs8nMtSXON
— Texas Attorney General (@TXAG) December 7, 2023
This includes first degree felony prosecutions, Tex. Health & Safety Code § 170A.004, and civil penalties of not less than $100,000 for each violation, Tex. Health & Safety Code §§ 170A.005, 171.207-211. And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens. Tex. Health & Safety Code § ¬¬171.207. Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.
Paxton also wrote a letter before the state Supreme Court’s order to the hospitals where the doctor involved in the case had admitting privileges. In the letter, he argued that Dr. Karsan has “failed to follow your hospital’s procedures for determining whether Ms. Cox qualifies for the medical exception to Texas’ abortion laws.”
“It appears she has not sought a second opinion from a colleague at your hospital to determine whether they agree with her that Ms. Cox qualifies for the medical exception. Nothing in the TRO (temporary restraining order) compels you to waive your hospital’s long-standing policies for determining whether a patient, including Ms. Cox, qualifies for the medical exception to Texas’ abortion laws,” the letter reads.
…[T]he TRO and the allegations in this lawsuit, on their faces fail to establish that Ms. Cox qualifies for the medical exception to Texas’ abortion laws. To fall within the medical exception, the physician must determine “in the exercise of reasonable medical judgement, the pregnant female on whom the abortion is performed, inducted, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
Paxton also argued that Karsan’s “good faith” belief is “not the legal standard” for allowing an abortion — “reasonable medical judgment and life-threatening physical condition are.”
The TRO is further deficient because it failed to identify what ‘life-threatening’ medical condition that Ms. Cox purportedly has that is aggravated by, caused by, or arising from a pregnancy, nor does it state with specificity how this unidentified condition places Ms. Cox at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.
The temporary ruling fails to show that Dr. Karsan meets all of the elements necessary to fall within an exception to Texas’ abortion laws. Judge Guerra Gamble is not medically qualified to make this determination and it should not be relied upon. A TRO is no substitute for medical judgment.
The lawsuit “could become a test case for similar cases elsewhere,” The Washington Post noted.
“On Friday, a pregnant woman sued Kentucky, arguing that the state’s near-total abortion ban violates the right to privacy and self-determination in the state constitution,” according to the report. “Cox and the Kentucky woman are the first two adult women to seek permission from a judge for an abortion since Roe v. Wade was decided in 1973.”
Cox’s lawsuit is separate from another broader case, Zurawski v. Texas, brought by five women who had been pregnant and sued the state over its abortion laws. Those women are claiming the state’s laws denied them proper health care and put their lives in danger.
“Four of the women traveled out of state to have abortions; the fifth, whose fetus did not have a chance of surviving, was allowed to deliver only after she became septic, leaving her with permanent physical damage,” according to the Washington Post report. “The case now involves 20 women, and the Texas state Supreme Court held a hearing on the matter last week.”
The case is Cox v. Texas, No. 23-994 in the Supreme Court of Texas.