A woman whose fetus has a fatal condition is petitioning a Texas court to let her override the state’s total abortion ban and terminate the pregnancy—the first such case since before Roe v. Wade.
Lawyers for the Center for Reproductive Rights filed suit on behalf of Kate Cox, a 31-year-old from Dallas-Fort Worth who learned last month that her fetus has Trisomy 18, a chromosomal anomaly that causes developmental delays so severe that most infants do not survive more than two weeks. Cox’s attorneys are seeking a temporary restraining order against Texas’ abortion bans to allow her to end the pregnancy without leaving the state.
Attorney Nick Kabat from the Center for Reproductive Rights said this is the first time a pregnant woman in a medical emergency has filed a lawsuit seeking access to abortion since Roe was decided more than 50 years ago.
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“It's a statement of where we are that what this case is about is a medical emergency,” he said. “This is not Jane Roe. Kate Cox is in the middle of a medical crisis.”
“You can just imagine how crazy it is that in the middle of a medical crisis, she has to reach out to lawyers, run to court, and try to get a court order, he added. “It’s really heartbreaking that this is where we are historically.”
The mother of two learned she was pregnant with a third child in August, but soon received devastating news from her doctors, according to the suit. Ultrasounds in October revealed the fetus had an umbilical hernia, a twisted spine likely due to spina bifida, a neural tube defect, clubbed feet, irregular skull and heart development, and other serious medical conditions. An amniocentesis in November showed the fetus had what doctors had feared: full Trisomy 18, an almost always fatal condition.
The diagnosis meant Cox’s fetus is unlikely to survive past birth or much longer, according to the suit. It also poses threats to her own health; because she previously gave birth twice by C-section, inducing labor early carries a “serious risk of uterine rupture,” while having a full-term C-section would make subsequent pregnancies higher risk, the suit states. Cox has already been to the hospital twice during her pregnancy, once for days of severe cramping and diarrhea and again for leaking amniotic fluid.
Doctors advised Cox that the safest option would be a dilation and evacuation abortion, the suit states. But Texas has barred abortion since shortly after the Supreme Court overturned Roe last year, except in narrow circumstances when it is necessary to save the life of a pregnant patient.
“Because of Texas’s abortion bans, Ms. Cox’s physicians have informed her that their ‘hands are tied’ and she will have to wait until her baby dies inside her or carry the pregnancy to term, at which point she will be forced to have a third C-section, only to watch her baby suffer until death,” the suit states.
In a statement, Cox said she wants to have an abortion to protect herself and prevent her baby from suffering. “It is not a matter of if I will have to say goodbye to my baby, but when,” she said.
“I do not want to continue the pain and suffering that has plagued this pregnancy,” she added. “I do not want to put my body through the risks of continuing this pregnancy. I do not want my baby to arrive in this world only to watch her suffer. I need to end my pregnancy now so that I have the best chance for my health and a future pregnancy.”
Tuesday’s filing seeks a restraining order against the Texas abortion ban for Cox and Dr. Damla Karsan, an OB/GYN who volunteered to provide the abortion. Cox’s husband is also seeking protection under the restraining order, as Texas law allows private citizens to sue anyone involved in “aiding or abetting an abortion.”
The case comes just one week after the Texas Supreme Court heard arguments in Zurawski v. State of Texas, a case filed on behalf of two OBGYNs and 20 women who say they were denied abortion care for medically complex pregnancies. In that suit, the Center for Reproductive Rights is seeking to clarify the scope of the state’s “medical emergency” exception to its abortion ban. State District Judge Jessica Mangrum ruled in August that doctors could use their own judgment in the case of dangerous pregnancies—including lethal fetal diagnosis—but the state appealed, sending the case to the state Supreme Court.
Kabat added Cox reached out to the Center for Reproductive Rights after hearing about the Zurawksi case on the news, which allowed to them the rare opportunity to bring a case with a plaintiff who is still pregnant and seeking abortion. But he also acknowledged the limitations of this strategy, saying: “For every woman like Kate that reaches out to us, there are 10 or 20 who do not,” he said.
“[They] are in the middle of a medical crisis and the last thing they’re thinking about is wanting to file a lawsuit," he added. “They’re just thinking, ‘How do I get medical care?’”
