AUSTIN, Texas — (AP) — A Texas judge on Thursday gave a pregnant woman whose fetus has a fatal diagnosis permission to get an abortion in an unprecedented challenge over bans that more than a dozen states have enacted since Roe v. Wade was overturned.
The lawsuit by Kate Cox, a 31-year-old mother of two from the Dallas area, is believed to be the first time since the landmark U.S. Supreme Court decision last year that a woman anywhere in the country has asked a court to approve an immediate abortion.
It was unclear how quickly or whether Cox will receive the procedure. State District Judge Maya Guerra Gamble, an elected Democrat, said she would grant a temporary restraining order that would allow Cox to have an abortion under what are narrow exceptions to Texas' ban. That decision is likely to be appealed by the state, which argued that Cox does not meet the criteria for a medical exception.
In a brief hearing Thursday, her attorneys told Gamble that Cox, who is 20 weeks pregnant, went to an emergency room this week for a fourth time during her pregnancy.
Cox and her husband both attended the hearing via Zoom but did not address the court. Doctors have told Cox that if the baby’s heartbeat were to stop, inducing labor would carry a risk of a uterine rupture because of her prior cesareans sections, and that another C-section at full term would would endanger her ability to carry another child.
“The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice," Gamble said.
The Center for Reproductive Rights, which is representing Cox, has said this lawsuit is believed to be the first of its kind since Roe v. Wade was overturned. Since that landmark ruling, Texas and 12 other states rushed to ban abortion at nearly all stages of pregnancy. Opponents have sought to weaken those bans, including an ongoing Texas challenge over whether the state's law is too restrictive for women with pregnancy complications.
“I do not want to continue the pain and suffering that has plagued this pregnancy or continue to put my body or my mental health through the risks of continuing this pregnancy,” Cox wrote in an editorial published in The Dallas Morning News. “I do not want my baby to arrive in this world only to watch her suffer.”
Although Texas allows exceptions under the ban, doctors and women have argued that the requirements are so vaguely worded that physicians still won't risk providing abortions, lest they face potential criminal charges or lawsuits.
State officials had asked Gamble to deny the request, arguing that Cox has not shown her life is in imminent danger and that she is therefore unable to qualify for an exception to the ban.
“There are no facts pled which demonstrate that Ms. Cox is at any more of a risk, let alone life-threatening, than the countless women who give birth every day with similar medical histories,” the state wrote in court filings ahead of Thursday's hearing.
"The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions, Tex. Health & Safety Code § 170A.004, and civil penalties of not less than $100,000 for each violation, Tex. Health & Safety Code §§ 170A.005, 171.207-211. And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens. Tex. Health & Safety Code § ¬¬171.207. Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires," a statement from Texas Attorney General Ken Paxton's office in response to the temporary restraining order.
Cox's attorneys have argued that the risks to her health will worsen unless the courts act swiftly.
Marc Hearron, senior counsel at Center for Reproductive Rights issued the following statement:
“Fearmongering has been Ken Paxton's main tactic in enforcing these abortion bans. Rather than respect the judiciary, he is misrepresenting the court’s order. He attacks the judge who rules against him as an 'activist judge'. He is trying to bulldoze the legal system to make sure Kate and pregnant women like her continue to suffer.”
The decision was handed down just two days after Cox filed the lawsuit, which says doctors told her the baby will likely be stillborn or live for a week at most.
Cox had cesarean sections with her previous pregnancies. She learned she was pregnant for a third time in August and was told weeks later that her baby was at a high risk for a condition known as trisomy 18, which has a very high likelihood of miscarriage or stillbirth and low survival rates, according to the lawsuit.
The lawsuit was filed a week after the Texas Supreme Court heard arguments about whether the ban is too restrictive for women with pregnancy complications. That case is among the biggest ongoing challenges to abortion bans in the U.S., although a ruling from the all-Republican court may not come for months.
In July, several Texas women gave emotional testimony about carrying babies they knew would not survive and doctors unable to offer abortions despite their spiraling conditions. A judge later ruled that Texas’ ban was too restrictive for women with pregnancy complications, but that decision was swiftly put on hold after the state appealed.
More than 40 woman have received abortions in Texas since the ban took effect, according to state health figures, none of which have resulted in criminal charges. There were more than 16,000 abortions in Texas in the five months prior to the ban taking effect last year.