The Texas Supreme Court on Monday night agreed with Attorney General Ken Paxton and overruled a lower court’s decision that would have allowed a woman carrying a fetus with a fatal condition to undergo an emergency abortion.
The ruling came hours after Kate Cox’s attorneys said she is being forced to leave Texas to obtain an abortion, just days after she petitioned a state court to allow her to obtain the procedure.
Cox, 31, filed for an emergency restraining order against Texas’ abortion ban last week, after discovering that her fetus carried Trisomy 18—a chromosomal anomaly that would cause it to die shortly after birth. Doctors told her that carrying the pregnancy to term could threaten her health and future fertility. The historic case was the first time since Roe v Wade that a pregnant patient asked a judge to rule on their ability to get an abortion.
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A district court judge sided with Cox on Thursday, saying that forcing her to risk her ability to have children in the future would be a “genuine miscarriage of justice.” But the Texas Supreme Court halted that ruling the next day, saying it needed more time to consider the case.
Cox chose to leave the state to obtain the abortion on Monday, her lawyers at the Center for Reproductive Rights said in a statement.
“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO at the Center for Reproductive Rights. “Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer.”
Texas currently bans abortion in all cases except when the pregnant patient’s life is at risk. Twenty women and two doctors are suing the state of Texas, arguing the law is not clear about pregnancies that threaten patients’ health and that it forces doctors to deny them care or risk jail time. The Supreme Court has yet to make a ruling on that case.
In Cox’s case, she learned in November that her fetus carried Trisomy 18 and asked to have an abortion to prevent the baby’s suffering and preserve her own health. Cox had been in and out of the emergency room in the preceding weeks because of complications with the pregnancy. But according to her suit, doctors told her their “hands [were] tied,” and that she would have to wait til the fetus died or carry the pregnancy to term and have a C-section.
In a statement at the time, Cox said it was “not a matter of if I will have to say goodbye to my baby, but when.”
“I do not want my baby to arrive in this world only to watch her suffer,” she said. “I need to end my pregnancy now so that I have the best chance for my health and a future pregnancy.”
After a 45-minute hearing Thursday, District Court Judge Maya Guerra Gamble granted Cox’s request for a restraining order protecting her and her doctor from prosecution and civil liability. Texas Attorney General Ken Paxton immediately asked the Supreme Court to weigh in and issued a letter threatening anyone who provided the abortion with prosecution. The higher court halted the ruling on Friday.
On Monday, the Texas Supreme Court ruled in favor of Paxton, noting that the “good faith belief” that the abortion was medically necessary, provided by the doctor involved in the case, Dr. Damla Karsan, did not meet state requirements.
The court added that Karsan needed to prove there was “reasonable medical judgment,” that Cox has a “life-threatening physical condition” that places her “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 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,” the ruling says.
“If a doctor, using her “reasonable medical judgment,” decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion.”
In her statement, Northup said the case was an example of why “judges and politicians should not be making healthcare decisions for pregnant people.”
“Kate's case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work,” she said. “She desperately wanted to be able to get care where she lives and recover at home surrounded by family. While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”
