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For the first time in at least 50 years, a judge has intervened to allow adult women to have abortions.
Kate Cox, 31, of Dallas, cried as Travis County District Judge Maya Guerra Gamble handed down the temporary restraining order Thursday. Cox and her husband desperately wanted to have the child, but doctors said continuing her non-viable pregnancy was in the best interest of her health and safety, according to the landmark lawsuit filed Tuesday. It said it poses a risk to future fertility.
“Ms. Cox has a strong desire to become a parent, and the idea that this law might actually incapacitate her is shocking and a genuine miscarriage of justice,” Gamble said.
Texas Attorney General Ken Paxton responded in a letter to the three hospitals Thursday afternoon. — Houston Methodist Hospital, Texas Women's Hospital in Houston, and Texans Children's Hospital in Houston. — The interim order “does not relieve hospitals, physicians, or others from civil or criminal liability for violations of Texas abortion law.”
The Texas Attorney General's Office, which challenged Cox's claims during Thursday's hearing, may ask the high court to intervene, but as of Thursday afternoon had not yet done so.
At 20 weeks pregnant, Cox learned her fetus had complete trisomy 18. This is a chromosomal abnormality that is almost always fatal before or shortly after birth. Before Roe v. Wade was overturned, Texas law allowed doctors to terminate pregnancies at any point during pregnancy for fatal fetal abnormalities. But now Cox's doctors say their hands are tied by Texas' abortion law, which prohibits abortions except to save a pregnant patient's life.
A week after her initial diagnosis, Cox and her husband filed a lawsuit on behalf of the Center for Reproductive Rights, asking a judge to grant them a temporary restraining order that would allow them to terminate the pregnancy.
“It's not a question of if you have to say goodbye to your baby, it's a question of when you have to say goodbye,” Cox said in a statement. “I'm trying to do what's best for my baby and myself, but the state of Texas is hurting both of us.”
At the hearing, Jonathan Stone, a lawyer with the Texas attorney general's office, argued that Cox “does not meet all the elements” to qualify for a medical exemption to the abortion ban, at least based on her allegations. . lawyer. To grant a temporary restraining order, Stone said, the state would need to “change Texas' medical exemption and argue that the plaintiff meets this revised, newly rewritten standard.”
Stone also argued that a temporary restraining order would have a lasting effect in the form of an abortion.
“The harm to Ms. Cox's life, health and fertility is nearly permanent and irreversible,” said Molly Duane, senior counsel at the Center for Reproductive Rights. She said Duane said Cox's condition was “rapidly deteriorating day by day,” and that she had already visited the emergency room for complications from her pregnancy since the lawsuit was filed Tuesday. she said. Duane said she went to the ER four times in the last month.
In a filing late last night, the state said Cox actually “the current She lives in Florida's sunny St. Lucie County, where, “ironically and especially relevant for the purposes of this lawsuit,” she is eligible for abortions under the state's medical exemption. becomes. Duane told the judge that Cox had not left Dallas in months and had only signed legal filings using a Florida-based online notary service.
After Thursday's 45-minute Zoom hearing, Gamble said Cox should be allowed to perform the abortion and that there would be civil and criminal penalties if Dr. Damra Kalsan, a Houston obstetrician-gynecologist, performed the abortion. The court ruled that they should be protected from.
In a letter to the hospital that also served as a response to the hearing, Paxton wrote that Dr. Carthan said the hospital's procedures were followed to “determine whether Ms. Cox qualifies for the medical exception to Texas' abortion law.” “I did not comply,'' he said. He also said that both the temporary restraining order and the lawsuit failed to “prove that Mr. Cox qualifies for the medical exception to Texas' abortion law.”
It's unclear whether this is true, and there is certainly some legal risk for the hospital, but Paxton is “exaggerating his claims,” said Charles “Rocky” Rhodes, a law professor at South Texas College of Law. he said.
“This is an open question,” Rose said. “There are too many uncertainties to say who will win and who will lose. There is no 100% guarantee that the hospital will not be held retroactively liable. ”
Another district judge, Jessica Mangrum, previously ruled that the state's abortion ban should not apply to people with complicated pregnancies, including those facing lethal fetal diagnoses. I put it down. The state appealed this decision and put the decision on hold. The case is pending before the Texas Supreme Court.
Thursday's order is a temporary restraining order, so the state cannot directly appeal it. Instead, the attorney general's office would have to file a writ of mandamus asking a higher court to take the unusual step of overturning the emergency order.
“For mandamus relief, it goes first to the Court of Appeals and then to the Texas Supreme Court,” Rose said. “However, the Texas Supreme Court has allowed some flexibility in the standard, allowing you to go directly to court if you don’t have enough time.”
Joanna Grossman, a law professor at Southern Methodist University's Dedman School of Law, said Paxton did not immediately seek to elevate the order to the Texas Supreme Court because Paxton frequently appeals orders related to abortion. He said he was surprised. At the same time, she said it makes sense not to bring this case in court at the same time as Zulawski v. Texas, in which 20 women and two doctors challenged Texas' abortion laws earlier this year. He said there was. Regarding complicated pregnancies.
“This case provides a good template [for other women] Not just ideas but also documentation. If TRO holds true, we have a model of what works. That way, it's easy to scale up to serve attorneys in different counties,” Grossman said.
“As long as he's not there, [Paxton] “When the Texas Supreme Court files a writ, it says something so broad that it won't work again,” she said, adding, “I expect there will be all kinds of lawsuits like this.” .
The anti-abortion advocacy group Texas Right to Life accused the lawsuit of being a gateway to allowing abortion for any reason in Texas.
“Every child is a unique and precious being and should continue to be protected by law, no matter how long or short a baby's life may be,” the organization said in a statement. “A compassionate approach to these heartbreaking diagnoses is perinatal palliative care, which honors a child's life rather than ending it.”
Since the state banned nearly all abortions after the Roe v. Wade reversal in June 2022, many have told stories of how their long-awaited pregnancies have gone awry and how the state's abortion ban has made their situation even worse. More and more women are coming forward.
In October, The Texas Tribune chronicled the story of an East Texas woman who was forced to carry a non-viable pregnancy to term. Her twin sons were born with severe deformities and died just hours after birth.
Neelam Bohra is a 2023-2024 New York Times Disability Reporting Fellow and will be based at the Texas Tribune through a partnership with The New York Times and the National Center on Disability Journalism, which is a Walter Cronkite Center for Disability Journalism. – Based at the Graduate School of Journalism and Mass Communication. Arizona State University.
Southern Methodist University has been a financial supporter of the Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by contributions from members, foundations, and corporate sponsors. Financial supporters play no role in the Tribune's journalism. See the complete list of them here.
