Texas judge grants woman with fatal fetal condition permission to have abortion

A Texas judge on Thursday granted a pregnant woman whose fetus has a lethal diagnosis permission to get an abortion despite Texas’s strict ban. 

But it’s unclear just how quickly the plaintiff, a 31-year-old Dallas woman named Kate Cox, will be able to obtain an abortion. 

District Court Judge Maya Guerra Gamble said she would grant a temporary restraining order that allows Cox to get an abortion, while also protecting her husband from being held liable for helping her under Texas’s “bounty” law, as well as preventing her physician from being prosecuted for performing the abortion. 

Cox is currently 20 weeks pregnant, and her fetus has been diagnosed with full trisomy 18, a chromosomal anomaly that leads to miscarriage, stillbirth or the death of the infant within hours, days or weeks after birth.   

Cox’s doctors said carrying the pregnancy to term will force a cesarean section or induction that would inflict serious injury. Inducing labor would risk a uterine rupture because of two prior C-sections with earlier pregnancies, and another C-section at full-term would risk her future fertility. 

During the hearing, Cox’s attorneys said in the two days since the lawsuit was first filed she has already needed to go to the emergency room — her fourth trip during the pregnancy. 

“The idea that Ms. Cox wants desperately to be a parent and this might cause her to lose that ability is shocking, and would be a genuine miscarriage of justice,” Gamble said in granting the restraining order.  

In a call with reporters following the ruling, attorneys for the Center for Reproductive Rights, which represented Cox, would not disclose when or where she would obtain her abortion care due to safety concerns. A temporary restraining order typically lasts 14 days.

The state does not have the ability to immediately appeal Thursday’s order. Instead, the Office of the Attorney General would have to ask a higher court to overturn the emergency order through a writ of mandamus.

Texas has overlapping abortion bans. The state outlaws all abortions from the point of fertilization and also enforces a “bounty” law that rewards private citizens who sue others who have helped a person get an abortion.   

There are medical exceptions to save the life of the mother, but doctors and abortion advocates argue the law is too vague on what constitutes such a risk, so physicians won’t risk providing abortions for fear of potential criminal charges or lawsuits. 

The state argued Cox was not eligible for an injunction, and any injuries were merely potential and not life-threatening. Jonathan Stone, a lawyer for the Texas Office of the Attorney General, said Cox did not “meet all the elements” to qualify for an exemption, and that the state would need to change the medical exemption and then say “that the plaintiffs meet this changed newly rewritten standard.”

In response to the ruling, Texas Attorney General Ken Paxton on Thursday said the temporary order would “not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”

In a letter sent to three hospitals where Cox’s physician Damla Karsan practices, Paxton said Karsan “failed to follow” hospital procedures for determining whether Cox qualifies for the medical exception, including getting a second opinion from a colleague.

The state made the same argument in court, but Cox’s attorney Molly Duane noted that was the entire problem with the medical exemption — physicians are too scared of prosecution to make such a decision.

Paxton indicated that even though the restraining order “purports to temporarily enjoin actions” brought by the Attorney General and state medical board, private citizens will still be able to sue.

“The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires,” Paxton said.

Updated at 5:56 p.m.