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The Texas Supreme Court has overturned a court order that would have allowed a Dallas woman to get an abortion. The ruling came down hours after Kate Cox’s lawyers announced she was leaving the state to terminate her non-viable pregnancy.
Last Tuesday, Cox, 31, filed a historic lawsuit, asking the courts to allow her to terminate her pregnancy after she learned her fetus had full trisomy 18, a lethal fetal anomaly. The lawsuit, brought by the Center for Reproductive Rights, said continuing the pregnancy posed a threat to Cox’s health and future fertility, but her doctors refused to perform an abortion due to the state’s near-total ban on the procedure.
Travis County District Judge Maya Guerra Gamble ruled Thursday that neither Cox, nor her husband or OB/GYN, should be criminally or civilly penalized for terminating her pregnancy. Texas Attorney General Ken Paxton filed an emergency petition, asking the state Supreme Court to overturn that ruling. On Friday night, the high court put Guerra Gamble’s order on hold while they considered the merits of the case.
Meanwhile, though, Cox’s condition was deteriorating, and she was in and out of the emergency room, according to her lawyers.
“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO for the Center for Reproductive Rights. “Her health is on the line ... This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors.”
Cox’s lawyers said Monday afternoon that she had left the state to get an abortion, but did not specify where or when the procedure was occurring. The Center for Reproductive Rights told the Texas Supreme Court that it intended to continue litigating her case, despite Cox no longer seeking an abortion within Texas. A few hours later, the court issued its ruling, overturning the temporary restraining order.
“No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis,” the justices wrote. “Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”
The Texas Supreme Court also heard arguments in late November in Zurawski v. Texas, in which 20 women allege they were denied medical care for their complicated pregnancies as a result of the state’s abortion laws. In both suits, the Center for Reproductive Rights has argued that doctors must be allowed to exercise their medical judgement and perform abortions when their “good faith belief” is that the procedure is necessary. The law says doctors must instead exercise “reasonable medical judgment,” which lawyers for the Center has argued is a vague standard that pushes doctors to wait until a patient is close to death before acting.
In Monday’s ruling, the justices say the law does not “ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day.”
The ruling also called on the Texas Medical Board to offer more guidance to physicians, reminding the agency that it can “assess various hypothetical circumstances, provide best practices, identify red lines, and the like” as it has done for COVID-19 protocols and similar circumstances.
Cox’s lawyers noted in a statement that many women in Texas do not have the financial means to quickly leave the state. All but one of Texas’ neighboring states have banned the procedure, and Texans are flooding clinics in New Mexico, Colorado and Kansas, leading to delays in care. In October, the Texas Tribune documented the story of a woman who could not afford to leave the state for an abortion, and carried a non-viable pregnancy to term.
