Texas abortion case: State Supreme Court strikes down ruling allowing woman's emergency abortion

Kate Cox asked for an abortion to preserve her fertility.

ByNadine El-Bawab and Mary Kekatos ABCNews logo
Tuesday, December 12, 2023
Texas high court strikes down ruling allowing woman's abortion
Kate Cox is at the center of a Texas abortion case is now leaving the state to get care after a judge ruled she could get care.

The Texas Supreme Court struck down a lower court's ruling that would have allowed a Dallas mother to seek an emergency abortion for a nonviable pregnancy.

The ruling on Monday was issued hours after Kate Cox's attorneys said the 31-year-old was leaving the state to have the procedure done.

Read the full Texas Supreme Court ruling.

Cox filed a lawsuit last week against the state over its restrictive abortion bans, asking a judge to grant her a temporary restraining order that would allow her to get an abortion.

After a judge in Travis County District Court allowed her to get an abortion Thursday, the Texas Supreme Court put that decision on hold Friday, saying it needed more time to consider the case, according to court documents.

Texas Attorney General Ken Paxton asked the high court to reverse Travis County District Court Judge Maya Guerra Gamble's decision granting Cox's request for an abortion for a pregnancy with a severe fetal anomaly.

The Texas Supreme Court, comprised of all Republicans, said the state's 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."

"Though the statute affords physicians discretion, it requires more than a doctor's mere subjective belief ... Though courts may not expand the statute beyond the Legislature's remit, limiting a physician's judgment by construing the exception more narrowly than the statute provides would likewise be error," the high court wrote.

Well before the ruling, the Center for Reproductive Rights, which brought Cox's lawsuit, said she would get the procedure done elsewhere.

"This past week of legal limbo has been hellish for Kate," Nancy Northup, president and CEO for the CRR, said in a statement Monday. "Her health is on the line. She's been in and out of the emergency room and she couldn't wait any longer...Kate's case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don't work. 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."

Cox's representatives asked that the Texas Supreme Court still issue a ruling, even though she is getting an abortion out of state.

"Because the issues in this case are capable of repetition yet evading review, the Plaintiffs nonetheless intend to proceed with their case," Molly Duane, Cox's lawyer from the CRR, said in a letter to clerk of the Texas Supreme Court on Monday.

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Cox received offers to help her access abortion in other states, such as Colorado, and other countries, including Canada, according to the CRR. It has not been disclosed where she is receiving abortion care.

In Cox's original lawsuit, she said her baby received a diagnosis of full trisomy 18, which is a condition with a very high likelihood of miscarriage or stillbirth and low survival rates.

According to Marc Hearron, senior counsel at CRR, Cox has been told by physicians that they can provide her with an induction of labor if the baby's heart stops beating. Cox - already a mother of a 3-year-old and a 1-year-old - has had two cesarean deliveries, and was told that an "induction carries serious risk of uterine rupture," according to the lawsuit.

"I do not want to put my body through the risks of continuing this pregnancy. I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days, full of medical tubes and machinery," Cox said in the lawsuit.

"Trisomy 18 babies that survive birth often suffer cardiac or respiratory failure. I do not want my baby to arrive in this world only to watch her suffer a heart attack of suffocation. I desperately want the change to try for another baby and want to access the medical care now that gives me the best chance at another baby," Cox said in the lawsuit.

The CRR also alleged that Cox's health is at risk and that she "risks debilitating health complications" if she continues her pregnancy, including potential loss of fertility.

Texas has multiple abortion bans in place and is one of 16 states that has ceased nearly all abortion services since the U.S. Supreme Court issued a decision overturning Roe v. Wade, ending federal protections for abortion rights, according to an ABC News tally.

Texas' bans include exceptions that allow abortions in cases of medical emergencies and fatal fetal diagnoses, but doctors and patients claim, in another lawsuit filed in March, that they are unable to provide care or have been denied care, respectively, under the laws. Under Texas' bans, it is a second-degree felony to perform or attempt an abortion, punishable by up to life in prison and a fine of up to $10,000. The law also allows private citizens to sue anyone who "aids or abets" an abortion.

Plaintiffs allege that the laws are confusing and do not define the exception to bans -- which allow abortions to save the life of the mother or preserve bodily function -- and wager significant penalties against doctors, up to life in prison.

In a new court filing Sunday, Attorney General Paxton told the state's high court that fertility risks don't qualify as a life-threatening condition that would allow a patient to get an abortion under Texas laws. His office argued that neither would a fatal fetal abnormality.