Ruling allows Texan to get abortion
Woman says health at risk in pregnancy involving fetus with likely fatal disorder
A judge in Travis County ruled Thursday that a Texas woman may terminate her pregnancy after her fetus was diagnosed with a typically fatal condition, a groundbreaking step in the wake of the state’s neartotal abortion ban.
Kate Cox, a 31-year-old Dallas woman, petitioned the court this week for access to the procedure, saying that carrying the pregnancy to term could put her health and fertility at risk.
“The idea that Ms. Cox wants desperately to be a parent and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” District Judge Maya Guerra Gamble said during the 30-minute hearing. “So I will be signing the order.”
Shortly after the decision, Attorney General Ken Paxton issued a threatening letter to Cox’s medical providers, warning they could be liable if they perform the abortion regardless of the court order.
Abortion is banned in Texas other than to save the life of the mother or prevent “substantial impairment of a major bodily function.” Medical professionals have said they are afraid to act because of the vagueness of the exception and the prospect of possible penalties of life in prison, steep fines and a loss of their medical licenses if they violate the law.
Cox and her husband, Justin, received test results last week showing that her fetus has trisomy 18, a chromosomal disorder that carries a low likelihood of survival, according to the suit filed Tuesday.
Her physicians have told her the baby is likely to be stillborn or to live only for a week at most, the suit reads. They also have told Cox, who has previously delivered two children via cesarean section, that she is at higher risk of complications if she continues the pregnancy.
Her lawyers with the Center for Reproductive Rights wrote in the suit that Cox believes abortion is her safest option, but her Houston physician, Dr. Damla Karsan, has been unable to perform the procedure because she fears violating the state’s strict abortion ban, according to the suit.
“Today’s decision underscores what we already know — abortion is essential health
care,” Molly Duane, senior staff attorney at the center, said in a statement after the ruling. “While we are grateful that Kate will be able to get this urgent medical care, it is unforgivable that she was forced to go to court to ask for it in the middle of a medical emergency.”
In a press call Thursday, Duane declined to offer information about “where and when she is getting the health care that she needs” out of a concern for Cox and her family’s safety, as well as her physician’s safety. She would not clarify whether Cox would wait for the resolution of a possible state appeal.
Marc Hearron, senior counsel for the center, added that if Cox or the other plaintiffs did face legal consequences for Cox getting an abortion before an appellate court ruled, “it would be a complete undermining of our legal system” because parties must be able to rely on court orders.
In a letter he sent to three hospitals where Karsan has privileges, Paxton argued that Cox doesn’t qualify for an exemption because the court failed to show that Cox has a “life-threatening” condition.
The “activist” judge’s order, he said, “does not insulate hospitals, doctors or anyone else” from facing civil or criminal legal consequences under the state’s overlapping abortion bans that invite enforcement from local prosecutors, Paxton’s office and everyday citizens.
“We feel it is important for you to understand the potential long-term implications if you permit such an abortion to occur at your facility,” wrote Paxton, a third-term Republican.“judge Guerra Gamble is not medically qualified to make this determination, and it should not be relied upon.”
Paxton did not say whether his office would appeal the judge’s ruling, which is effective for the next 14 days.
The three Houston-based hospitals — The Methodist Hospital, The Women’s Hospital of Texas and Texas Children’s Hospital — did not immediately respond to a request for comment.
‘We are suffering’
Cox wrote in an op-ed in the Dallas Morning News this week that she doesn’t think she or any other Texas woman “should need to drive or fly hundreds of miles to do what we feel is best for ourselves and our families.”
“An abortion was not something I ever imagined I would want or need,” Cox wrote. “I’m trying to do what is best for my baby daughter and myself and my family, but we are suffering because of the laws in Texas.”
Guerra Gamble on Thursday sided with Cox, her husband and Karsan in issuing a temporary restraining order. The judge also said she would likely stay proceedings in Cox’s case until there is a resolution in a similar case before the Texas Supreme Court, in which 22 women who were denied abortions are seeking clarification of the emergency exception in the state’s abortion bans. They are
also represented by the Center for Reproductive Rights.
Cox coincidentally received the news about her fetus’ diagnosis on the same day that oral arguments were held in that Supreme Court case. She learned about the case while exploring her options online and then reached out to Duane.
According to the suit, the Coxes learned through “devastating” ultrasounds that their baby already had multiple serious conditions, such as a twisted spine, clubbed foot and irregular skull and heart. Cox has been in the emergency room four times in the past month because of pregnancy complications, including severe cramps, leaking fluid and elevated vital signs.
Joanna Grossman, a law professor at Southern Methodist University, said Thursday’s ruling could trigger a deluge of similar suits from Texans across the state — at least until the Texas Supreme Court elucidates the law.
“If the Texas Supreme Court is in the position of having to personally rule on every necessary abortion, this gives them a little more incentive to grant some global relief,” Grossman said.
Anti-abortion advocates said Cox should have to carry the fetus to term, arguing that allowing her access to an abortion would open the floodgates for other women.
“Every child is uniquely precious and should continue to be protected in law no matter how long or short the baby’s life may be,” Texas Right to Life said in a statement.
Deirdre Cooper, a policy analyst with another anti-abortion group, Texas Alliance for Life, said terminating a pregnancy because of fatal abnormalities amounts to “discrimination.”
“Once given a fatal diagnosis, parents are now on a unique journey of preparing for the death of a beloved child,” said Cooper, who chose to birth a child with the same condition as Cox’s. “But abortion robs that child of the chance at life, no matter how short.”
Court hearing
The attorney general’s office has argued that while Cox may be at slightly higher risk for health complications, “she does not face an imminent injury.”
State attorneys also argued that Karsan should have sought a second physician’s opinion, which they said would have negated the need for a lawsuit. The state relied on an affidavit from a San Antonio doctor, Dr. Ingrid Skop, who reviewed the court filings and said in a sworn statement that she did not believe Cox has a “life-threatening physical condition” that would qualify under the emergency exception.
Skop is vice president and director of medical affairs at the Charlotte Lozier Institute, an anti-abortion research group.
The state also said Thursday’s order will cause only the state, not the plaintiffs, irreparable harm.
“The abortion, once performed, is permanent. It can’t be undone,” Assistant Attorney General Johnathan Stone said.
Duane, who represents the Coxes and Karsan, responded
by arguing that “the harm to Ms. Cox’s life, health and fertility are very much also permanent and cannot be undone.” She added that the judge’s ruling, not another doctor’s opinion, is what would have given Karsan’s hospital the reassurance needed to do the procedure.
Duane said after the ruling that most women will not be able to sue the state like Cox, and they will have to continue dangerous pregnancies that risk their health, as long as the law is left unclear.
“This can’t be the new normal,” she said. “I don’t think you can expect to see now hundreds of cases being filed on behalf of patients. It’s just unrealistic.”
Grossman said such a legal landscape would perpetuate existing inequities by putting at a disadvantage low-income people of color who are not likely to be able to afford a lawsuit or out-of-state travel for an abortion.
“This would just be another example of the way those burdens are not going to fall equally,” she said.
The state owes an explanation for why it believes Cox falls outside the emergency exception, Duane said in court Thursday.
“I read the statute, Dr. Karsan reads the statute, to say that a serious risk of substantial impairment of Ms. Cox’s reproductive functions would fall within the medical exemption,” Duane said. “If that is not what the statute means, then the state after two years of silence should really tell us.”