Texas Judge Authorizes Woman's Abortion After Risky Pregnancy Diagnosis
- December 08, 2023
A Texas judge this week authorized a pregnant woman to have an abortion despite the state’s restrictive bans on the procedure.
Kate Cox, who currently is 20 weeks pregnant, learned on November 28 that her baby has Trisomy 18, a chromosomal condition that is almost always fatal either before or shortly after birth, according to the complaint.
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. Her physicians, however, refused to perform the procedure citing uncertainty surrounding the state’s abortion restrictions.
The Center for Reproductive Rights, which is representing Cox, filed the complaint in the Travis County District Court, seeking a temporary restraining order (TRO) authorizing her physician to perform the procedure.
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 applies to Cox's husband, who feared liability for "aiding and abetting" an abortion, and her physician, OB/GYN Dr. Damla Karsan, who the order allows to perform the procedure without the threat of prosecution.
But Texas Attorney General Ken Paxton said December 7 that the TRO would "not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws." He added that the order did not "prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else," and that the TRO would "expire long before the statute of limitations for violating Texas’ abortion laws expires."
Cox's lawsuit comes as the Texas Supreme Court is considering 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.
“Over the months that Zurawski has been pending, the state defendants have refused to provide any clarification of the law or even their own interpretation of its meaning,” the complaint said. “Before the Supreme Court of Texas, the state defendants conceded that a physician could provide an abortion to a patient with a fatal fetal diagnosis if there was ‘some evidence’ of ‘substantial impairment of a major bodily function.’ But the state defendants have never said what evidence nor what condition would be enough."
Arguing that Cox could not wait for the state high court decision, her complaint asked for the court's immediate intervention.
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 lawsuits argue.