Update: Judge Maya Guerra Gamble of Travis County, Texas, granted permission for Kate Cox to have the abortion she is seeking.
"Kate Cox needs an abortion, and she needs it now." Thus begins a petition filed in a Texas district court this week, asking a judge to allow the abortion to be performed in the state, where abortion is banned with very limited exceptions.
The petition was filed by the Center for Reproductive Rights, which is the group behind a high profile case heard at the Texas Supreme Court last week.
In that case the group's senior staff attorney Molly Duane argued on behalf of 20 patients and two OB-GYNs that the medical exception to the ban on abortion in the state's laws is too narrow and vague, and that it endangered patients during complicated pregnancies. An attorney for the state argued the exception is already clear and that the plaintiffs didn't have standing to sue.
On the very day of those arguments, Nov. 28, Kate Cox, a 31-year-old mother of two who lives in the Dallas area, got "devastating" news about her pregnancy, the filing says. At nearly 20-weeks gestation, she learned that her fetus has Trisomy 18 or Edwards Syndrome, a condition with extremely low chances of survival.
So, as the Texas Supreme Court considered whether its abortion laws endangered patients with pregnancy complications in the past, Cox was trying to figure out what to do in her present situation.
"When she Googled what to do and – where can I find help? – news about our case popped up," Duane tells NPR.
Cox had already been in the emergency room three times with cramping and other concerning symptoms, according to court documents. Her doctors told her she was at high risk of developing gestational hypertension and diabetes, and because she had had two prior cesarean sections, carrying the pregnancy to term could compromise her chances of having a third child in the future, the brief says.
Last Thursday, she reached out for the Center for Reproductive Rights. Five days after that, the group filed this petition on her behalf.
A decision could come quickly
The filing asks a Travis County district court judge for a temporary restraining order against the state of Texas and the Texas Medical Board, blocking enforcement of Texas's abortion bans so that Cox can terminate her current pregnancy. It also would block enforcement of S.B. 8, which allows civil lawsuits to be filed against those who help patients receive abortions. That would protect the other plaintiffs in the case, Cox's husband, Justin, and Dr. Damla Karsan, who is prepared to provide the abortion if the court grants their request. Karsan is one of the OB-GYN plaintiffs in the Zurawski v. the State of Texas case.
There are currently three overlapping abortion bans in Texas. Abortion is illegal in the state from the moment pregnancy begins. Texas doctors can legally provide abortions only if a patient is "in danger of death or a serious risk of substantial impairment of a major bodily function, " the law says.
"I don't know what that means," Duane says of the language of the medical exception. "But I think [Cox's] situation must fall within whatever it is that that means."
The Texas Attorney General's office did not respond to a request for comment on Cox's case, but the office argued in the Zurawski case that the medical exception needs no clarification.
Texas Alliance for Life, a group that lobbied in the state legislature for the current abortion laws, published a statement about Cox's case Wednesday. "We believe that the exception language in Texas laws is clear," wrote the group's communication director Amy O'Donnell, and accused the Center for Reproductive Rights of pretending to seek clarity while really attempting to "chisel away" at Texas's abortion laws.
The timeline of this case may be very quick. "I have to be honest, I've never done this before, and that's because no one's ever done this before," Duane says. "But usually when you ask for a temporary restraining order, the court will act very, very quickly in acknowledgement of the emergency circumstances."
The hearing will be via Zoom on Thursday morning. Judge Maya Guerra Gamble is presiding.
"I am hopeful that the judge will issue an order from the bench," Duane says.
If the judge agrees with Duane and her colleagues, Texas could not appeal the decision directly. "They would have to file what's called a writ of mandamus, saying that the district court acted so far out of its jurisdiction and that there needs to be a reversal," Duane explains. "But filing a petition like that is not does not automatically stay the injunction the way that an appeal of a temporary injunction does."
In the meantime, the justices of the Texas Supreme Court are considering the Zurawski case, with a decision expected in the next few months. "I want them to take their time to write an opinion that gets this right and will protect patients, doctors and their families going forward," Duane says. "But the reality is that in the meantime, people are going to continue to be harmed," and Cox cannot afford to wait for that decision, Duane says.
Duane praises Cox for her bravery in publicly sharing her story while in the midst of a personal medical crisis. "She's exceptional – but I will also say that the pathway to this has been paved by all the other women in our lawsuit," she says. "There is strength in numbers."
