A Texas woman with a non-viable pregnancy will be able to get an emergency abortion, a judge ruled on Thursday, in a lawsuit against the state that was filed after the woman was denied care because of the state’s strict abortion bans.
Kate Cox, a 31-year-old mother of two in Dallas, learned last week that her fetus has a lethal diagnosis and had been unable to get an abortion despite going to the emergency room three times with severe cramping and fluid loss. Her lawyers said in court that, in the two days since filing the lawsuit, Cox had to go to the ER a fourth time.
During the hearing, Cox’s lawyers asked the Travis county judge Maya Guerra Gamble to issue a temporary restraining order to allow Cox’s OB-GYN, Dr Damla Karsan, to perform an abortion under the medical exception to the state bans.
Cox had been told that her only options were to carry the pregnancy to term and have a C-section or, if the fetal heartbeat stopped, have labor induced. Both options could threaten her life and fertility: because she has had two previous C-sections, she would face a higher risk of uterine rupture or hysterectomy. In her suit, Cox requested an abortion procedure known as dilation and evacuation (D&E).
In granting the order, Gamble said: “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.”
Cox and her husband Justin attended the virtual hearing and Cox wiped away tears after the judge ruled. However, hours after the ruling, Texas attorney general Ken Paxton issued a statement warning doctors that Gamble’s order would not insulate them from civil or criminal penalties under Texas’s overlapping abortion bans.
The state is likely to appeal Gamble’s order.
Cox is 20 weeks pregnant and her fetus has trisomy 18, a fatal chromosomal condition, as well as other health issues, including a spinal abnormality. Hers is the first case in which a pregnant person has asked a court for an emergency abortion since Roe v Wade was decided in 1973. She is being represented by the Center for Reproductive Rights, which is also suing the state on behalf of 20 women and two OB-GYNs, including Karsan, in a separate case called Zurawski v Texas.
Notably, in neither suit are the plaintiffs asking for the abortion ban to be overturned – they are seeking clarification on the exceptions for emergency medical conditions.
Molly Duane, an attorney with the Center for Reproductive Rights, argued that, in its filings against Cox’s suit, the state of Texas was second-guessing her physicians and saying that she was not sick enough.
“The state says that Ms Cox has no injury, the harms to her health are not imminent but are ‘purely hypothetical’ and her legal claims are not yet ripe. These arguments are frankly stunning. The state goes as far to characterize her claims as ‘a frivolous assertion of harm’,” she said. Duane said the state’s argument amounted to a patient having to be about to die before they can have an abortion.
Jonathan Stone, the lawyer representing Texas, said: “The only party that’s going to suffer an immediate and irreparable harm in this case if the court enters a [temporary restraining order] is the state.” He claimed this was because Texas would not get to make its legal arguments in a regular hearing.
“The abortion once performed is permanent and cannot be undone,” Stone said. “The plaintiffs are going to obtain permanent relief in this case through this TRO application without any evidence being considered by this court and in full-blown evidentiary hearing.”
Duane countered that claim with a searing response.
“The state says that the only harm at issue in this motion is harm to the state and I would just note that the harm to Ms Cox’s life, health and fertility are very much also permanent and cannot be undone,” she said.
Even before laying out the state’s arguments, Stone attempted to raise questions about the Cox’s petition being signed by a virtual notary in Florida rather than Texas. Duane said Texas suggested in its filings that the couple was on vacation in Florida, when in fact they have been at home because Cox felt so unwell and wanted to stay close to the emergency room.
“We take notarized documents from other states all the time,” Gamble said to Stone, also noting that the couple attended the hearing and could attest in person. “I think we should focus on what’s really going on.”
Duane said in a statement after the hearing: “Today’s decision underscores what we already know – abortion is essential healthcare. 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.
“Most women are not able to do what Kate has done – many Texans have been forced to continue pregnancies that put their lives at risk. That is happening every day across Texas. As long as abortion is banned, pregnant people will suffer. As we await the Texas supreme court’s ruling in Zurawski v State of Texas, our hearts go out to the countless people in similar situations who – for so many reasons – aren’t able to sue the state of Texas for an emergency hearing.”
