The Texas Supreme Court overturned a lower court ruling that would have allowed a woman to receive an emergency abortion under the state’s “medical emergency” exception.
Shortly before the ruling was delivered, the woman’s attorneys shared that she had left the state to get the procedure after the Texas Supreme Court temporarily blocked the ruling on Friday.
On Thursday, a Travis County judge ruled in favor of Kate Cox, a 31-year-old mother of two who filed a temporary restraining order and permanent injunction on Dec. 5, asking the court to allow her to terminate her pregnancy at 20 weeks because she received a diagnosis of a fatal fetal condition. Dr. Damla Karsan, a board certified OB/GYN who would perform the abortion on Cox, is the second plaintiff in the lawsuit, along with Cox’s spouse, Justin Cox. But one day later, the Texas Supreme Court temporarily blocked the lower court ruling, and on Dec. 11 it overturned the decision.
Texas has one of the most restrictive abortion laws in the U.S., prohibiting abortion beginning at six weeks, before many women know they are pregnant. The law only allows for the procedure if the person is facing a life-threatening condition, which the Supreme Court claimed Cox’s doctor was unable to prove. In the seven-page ruling the Supreme Court said that Dr. Karsan, “asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.”
“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO at the Center for Reproductive Rights, the organization representing Cox’s case, when sharing Cox’s decision to leave the state for care. “Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer. This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors.”
“Kate’s case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work,” Northup said. “While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”
The case is the first of its kind in 50 years, and heralds a burdensome new legal strategy for pregnant people navigating the complex legal landscape of abortion after the Supreme Court overturned Roe v. Wade last year. "We are talking about urgent medical care. Kate is already 20 weeks pregnant. This is why people should not need to beg for healthcare in a court of law,” Molly Duane, senior staff attorney at the Center for Reproductive Rights, said in a news release following the state supreme court's stay
Following Thursday’s ruling, the state’s attorney general threatened to prosecute anyone who aids in providing the abortion. In a letter to three hospitals where Dr. Karsan has admitting privileges, Paxton warned that Thursday’s ruling “will not insulate you, or anyone else, from civil and criminal liability”.
More From TIME
“The court is being invited into this agonizing decision-making that this woman is having in choosing between the health of her life and the future of her living children,” says Missy Owen, co-chair of the National Association of Criminal Defense Lawyers’ Criminalization of Reproductive Health Taskforce. “She is opening the doors for the court, saying, ‘I do not want to be committing a crime, but the situation in front of me is impossible.’”
What is the case about?
In Cox v. Texas, the plaintiffs asked the court to allow Karsan to perform an abortion on Cox because her fetus has Trisomy 18, also called Edwards syndrome. The condition causes abnormalities—Cox’s baby, the lawsuit says, has a “spine abnormality,” umbilical hernia, clubbed foot, and other conditions.
Cox’s physicians have recommended an abortion. Children with Trisomy 18 have a greater risk for miscarriage or stillbirth and research shows that only 1 in 2 babies who are carried to term will be born alive. Most only survive for a few days, and only about 90-95% of babies do not live beyond the first year, the Minnesota Department of Health reports.
According to the case filing, Cox is currently 20 weeks pregnant and has been to three different emergency rooms because of “severe cramping and unidentifiable fluid leaks.” Cox is also at higher risk for complications because she previously had two Cesareans, has elevated glucose levels, and other underlying health conditions. Cox filed the case to ask that the court clarify its abortion regulations. The case filing says that Cox could not wait for the Texas Supreme Court to release its decision on a separate lawsuit, Zurawski v. Texas. That case, filed in March, asks the court to clarify under which medical exemptions OB/GYNs could perform abortions. A Travis county judge previously ruled that patients who have medical issues that could threaten their life, or have a lethal fetal diagnosis, should be exempt from existing abortion regulations. But Texas Attorney General Ken Paxton appealed that ruling.
Stakes of the case
The stakes go beyond Cox and her family. Cox’s case could encourage women in other states with abortion bans to file similar suits seeking both to obtain an abortion and to clarify exceptions to Texas’ abortion restrictions. “It would show them that it might be possible for them to get an abortion,” says University of Virginia School of Law professor Naomi Cahn.
Barriers remain for many women to employ a similar strategy. Finding legal representation can be costly and difficult. There also can be an emotional and physical toll to seeking an abortion through the judicial system: “The notion that anyone would have to publicly advocate to a court their personal circumstances to be able to get justification feels like a violation,” says Owen. “That she (Cox) would have to file on a docket in a courthouse where anybody can read the complaint and it can be plastered all over every publication in America…that’s an enormous sacrifice.”
Duane, during a press call Thursday, said this process is not a “reasonable or rational way to practice medicine in this country.”
“This is not some new precedent we're setting that every patient has to come to court to get an abortion,” she said. “But I want to be clear that that's what the attorney general of Texas wants.”
Nicolas Kabat, an attorney for the Center for Reproductive Rights, which filed the case, says this has been difficult for Cox. “Imagine that you are grieving the loss of a very desired pregnancy. Kate wants to carry. She has two children, and she wanted to have a third,” says Kabat. “So she's grieving a loss of a pregnancy and at the same time, she's being told by her doctors that she needs to end this pregnancy now in order to be able to have kids in the future.”
There’s added time pressure on cases like these as the pregnancy progresses. “The consequence of the state's strategy here is that in the middle of a time-sensitive and devastating pregnancy crisis, a woman like Kate may have to be forced out of state,” Kabat says. “This is a situation where she's not only facing potential loss for fertility, but life threatening risks. And the state cannot force a woman to take on those risks just because the state is opposed to abortion.”
Correction, Dec. 7
The original version of this story misspelled the name of a Center for Reproductive Rights attorney. He is Nicolas Kabat, not Nicholas.
More Must-Reads From TIME
- Inside the White House Program to Share America's Secrets
- Meet the 2024 Women of the Year
- East Palestine, One Year After Train Derailment
- The Closers: 18 People Working to End the Racial Wealth Gap
- Long COVID Doesn’t Always Look Like You Think It Does
- Column: The New Antisemitism
- The Best Romantic Comedies to Watch on Netflix
- Want Weekly Recs on What to Watch, Read, and More? Sign Up for Worth Your Time
Write to Simmone Shah at email@example.com