Texas Supreme Court Overturns Ruling Authorizing Woman's Abortion
- December 15, 2023
The Texas Supreme Court rejected December 11 a pregnant woman’s bid for a court order allowing her to proceed with an abortion to preserve her health and fertility despite the state’s restrictive bans on the procedure.
In the closely watched case, the state high court vacated a Texas judge’s ruling last week granting Kate Cox, who currently is 20 weeks pregnant, a temporary restraining order (TRO) to have the procedure without facing repercussions under the state abortion bans.
The high court found Cox had not shown she qualified for the “medical-necessity exception” to the abortion bans, which it said should be left to a physician’s “reasonable medical judgment.”
Cox learned in late November that her baby has Trisomy 18, a chromosomal condition that is almost always fatal either before or shortly after birth. Because Cox had two prior C-sections, doctors said that continuing the pregnancy puts her at high risk for severe complications, including the potential loss of fertility. The Center for Reproductive Rights, which was representing Cox, filed the action in the Travis County District Court.
Ruling from the bench on December 7, Judge Maya Guerra Gamble agreed to issue the emergency order. “The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice," Guerra said. The ruling also applied to Cox's husband, who feared liability for "aiding and abetting" an abortion, and her physician, OB/GYN Dr. Damla Karsan, who the order authorized to perform the procedure without the threat of prosecution.
Following that ruling, Texas Attorney General Ken Paxton immediately asked the state high court to intervene. The Texas Supreme Court agreed to temporarily block the lower court order on December 8.
Before the high court handed down its per curiam decision this week, the Center for Reproductive Rights, citing a “week of legal whiplash,” reported that Cox had left Texas to have the procedure in another state.
“Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer. This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors,” said Nancy Northup, President and CEO at the Center for Reproductive Rights.
In its December 11 decision, the high court said Dr. Karsan asserted a “good faith belief” that Cox met the medical exception, but the statute requires a “reasonable medical judgment,” not a subjective belief.
“A pregnant woman does not need a court order to have a lifesaving abortion in Texas . . . . if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment,” the high court added. The high court also noted that the Texas Medical Board could “do more to provide guidance in response to any confusion that currently prevails.”
Cox's lawsuit came as the Texas Supreme Court also considers another action, which the Center for Reproductive Rights filed in March on behalf of a number of women and two Texas OB/GYNs, arguing that medical professionals are delaying or refusing to provide necessary obstetrical care to pregnant people in the face of potential criminal and civil liability, stiff fines, and revocation of their medical licenses under Texas’ abortion bans, despite exceptions for protecting the life and health of the pregnant person.
A Texas judge in August temporarily enjoined the state from enforcing the abortion bans against physicians who perform the procedure on patients experiencing emergent medical conditions that pose a risk to life or health, including loss of fertility, or in cases where the fetus was unlikely to survive after birth. Zurawski v. State of Texas, No. D-1-GN-23-000968 (Tex. Dist. Ct. Travis Cty. Aug. 4, 2023). That ruling, however, is on hold after the state’s immediate appeal to the Texas Supreme Court, which held oral arguments in the case on November 28, the same day Cox filed her action.
Texas’ so-called trigger ban, which went into effect after the Supreme Court overturned Roe v. Wade, makes performing an abortion a felony. Medical professionals that violate the trigger ban also could lose their medical license and be subject to civil penalties of not less than $100,000.
Senate Bill 8, enacted in 2021, effectively prohibits abortion beyond the point that an embryo or fetus has detectable cardiac activity, typically around six weeks. The law allows individuals to sue those who “aid or abet” abortions for statutory damages of not less than $10,000.
While these laws include exceptions for pregnant patients with emergent medical conditions, conflicting language on physician discretion and intent is creating widespread uncertainty among medical professionals, the Center for Reproductive Rights has argued.
Meanwhile, a woman in Kentucky filed a class action challenging two of that state’s abortion bans, which went into effect in August 2022. The woman, identified only as Jane Doe, is asking the Jefferson County Circuit Court to strike down the abortion bans as violating the Kentucky Constitution’s right to privacy and self-determination.