By Eleanor Klibanoff
The Texas Tribune
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A year and a half after enacting one of the strictest abortion laws in the country, Texas finally saw a test case.
In a historic lawsuit, Kate Cox, a 31-year-old Dallas mother of two, put herself and her heartbreaking pregnancy story into the public eye to force an answer to an urgent question: Just how serious is the state of Texas about enforcing its new abortion laws?
Pretty damn serious, it turns out.
Cox’s story followed a now-familiar storyline: She and her husband were thrilled to find out they were pregnant, and devastated to receive a lethal fetal diagnosis. Her doctor said she needed an abortion to preserve her health and future fertility, but because of state law, their “hands are tied,” according to the lawsuit.
Cox’s lawyers say the problem is the laws — they’re too vague, and the stakes too high, for doctors to implement them with confidence.
The state says the problem is with the way doctors are interpreting the law, not the law itself. When several women testified in July that they had been denied medically necessary abortions, an assistant attorney general asked why they were suing the state instead of their doctors. Again and again, the state’s lawyer asked the women: Did Attorney General Ken Paxton tell you you couldn’t get an abortion? Did anyone, working in any capacity for the state, tell you you couldn’t get an abortion?
But when Cox got a court order allowing her doctor to terminate her non-viable pregnancy, Paxton channeled the full power of the state to stop her, threatening hospitals, appealing to the state’s highest court and ultimately getting the order blocked.
“Kate Cox called their bluff,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “Ken Paxton came in, in a very personal way, and put the state of Texas in embodied form between her and an abortion.”
Cox’s case captured national attention, generated a response from the state and forced the Supreme Court of Texas to show its hand on how it plans to handle abortion challenges. It did not, however, get Cox the relief she sought — an abortion in the state of Texas.
On Monday, her lawyers announced she had left the state to terminate her pregnancy.
A historic court ruling
Two weeks ago, Kate Cox sat at her OB/GYN’s office, anxiously awaiting the results of her amniocentesis test.
She knew her fetus was developing with a twisted spine, clubbed feet, irregular skull and heart development, and she’d gone to the emergency room three times in the last month for cramping, diarrhea and unexplained fluid leakage.
The amniocentesis confirmed her fetus was developing with full trisomy 18, an extreme chromosomal abnormality. If her child was born alive at all, they would survive only minutes, hours or days outside of the womb.
Cox’s pregnancy was going to end in heartbreak. The only question was when. Cox and her husband wanted to end “the pain and suffering that has plagued this pregnancy,” she said in a statement.
“I do not want to put my body through the risks of continuing this pregnancy,” she said. “I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days.”
Before the overturn of Roe v. Wade in June 2022, Texas law would have allowed Cox to have an abortion at her doctor’s office or hospital. But now, her doctors told her they could not perform the procedure, and there was likely no one in Texas who would.
While Cox was inside a doctor’s office in Dallas, receiving this devastating diagnosis, the Texas Supreme Court was considering this exact question, of when and whether doctors can terminate a pregnancy, in another case, Zurawski v. Texas.
Twenty women had signed onto this suit, saying they had been unable to access medically necessary abortions because of the state’s abortion laws.
Texas laws ban all abortions unless, “in the exercise of a reasonable medical judgment,” a doctor determines that the patient is experiencing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
The Center for Reproductive Rights, which filed the Zurawski suit, argued doctors are unclear on what qualifies as “reasonable medical judgment,” and should be allowed to act based on their “good faith belief” that an abortion is necessary.
Initially, a judge in Austin agreed and enjoined the law as it applied to complicated pregnancies. The state appealed that ruling to the Texas Supreme Court, arguing in part that the plaintiffs didn’t have standing to sue because they were not actively seeking abortions in Texas.
At the November hearing in that case, assistant attorney general Beth Klusmann said to challenge the law, an actively pregnant woman seeking an abortion would have to bring the suit. While it was likely “impractical” to ask a woman facing a medical crisis to come to court, she said, “we don’t bend the rules of standing for practicality,” she said.
Cox saw the news stories about this hearing and reached out to the Center for Reproductive Rights. She volunteered to be the plaintiff they needed, in the state’s own words, to challenge these laws.
A week later, the Center filed its lawsuit on her behalf in Travis County district court asking for a temporary restraining order to allow her to have an abortion, asserting that continuing the pregnancy threatened her health and future fertility.
At the Zoom hearing, Jonathan Stone, a lawyer for the Texas attorney general’s office argued that Cox “does not meet all of the elements” to qualify for a medical exemption, and granting the order would require “changing the medical exemption in Texas and then saying that the plaintiffs meet this changed newly rewritten standard.”
Travis County District Judge Maya Guerra Gamble disagreed and granted the motion.
“The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” she said.
Paxton wields his power
This ruling marked the first time since before Roe v. Wade that an adult woman sought a court’s permission to have an abortion. The order applied to Cox, her husband, and Dr. Damla Karsan, a Houston OB/GYN who agreed to perform the abortion.
But it was not to last.
Within hours, Paxton sent a threatening letter to Methodist Hospital, The Women’s Hospital of Texas and Texas Children’s Hospital, where Karsan has admitting privileges, reminding them of the “potential long-term implications if you permit such an abortion to occur at your facility.”
Paxton said the hospitals were not protected from felony prosecution nor private lawsuit if they allowed the abortion to occur on their property, and said they should not rely on Guerra Gamble’s ruling as she “is not medically qualified to make this determination.”
“We remind you that the TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires,” Paxton wrote.
The Center for Reproductive Rights condemned the letter, asking Guerra Gamble to hold a hearing to consider sanctioning Paxton for his comments.
“The repeated misrepresentations of the Court’s TRO, coupled with explicit threats of criminal and civil enforcement and penalties, serve only to cow the hospitals from providing Ms. Cox with the healthcare that she desperately needs,” wrote Molly Duane, senior counsel with the Center for Reproductive Rights.
When a majority of Texans want the Legislature to expand access to abortion, it’s a bold political move to throw the weight of the state against an “extremely sympathetic plaintiff,” Sepper said.
“It shows that Texas politicians feel so shielded from any sort of electoral consequences related to attacks on women’s equality that they’re just going to keep on keeping on,” she said.
For Paxton, that meant filing a petition asking the Texas Supreme Court to intervene and overturn Guerra Gamble’s ruling. The day after the hearing, the high court stepped in, putting Guerra Gamble’s ruling on hold while it considered the case.
Cox remained pregnant, unable to get the abortion a court had told her she had a right to. Over the weekend, awaiting a ruling from the Texas Supreme Court, Cox’s situation deteriorated.
On Monday, her lawyers announced she couldn’t wait any longer and was leaving Texas to get an abortion.
“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO for the Center for Reproductive Rights. “Her health is on the line … This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors.”
Supreme Court weighs in
Hours after Cox announced she had left the state, the Texas Supreme Court ruled on her case, validating her decision to go ahead and seek care elsewhere.
The high court rejected the lower court’s temporary restraining order, saying Cox did not qualify for an abortion under the medical exception to the law. The justices said Karsan, Cox’s OB/GYN, did not assert that, in her reasonable medical judgment, Cox is facing a life-threatening physical condition, as the law requires.
“No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis,” the justices wrote. “Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”
The ruling purported to offer some insight into how the court would interpret the law going forward, saying doctors do not need to wait until a patient is “within an inch of death or her bodily impairment is fully manifest or practically irreversible” to perform an abortion.
But, the justices acknowledged that more guidance is needed for doctors to be able to interpret these laws with confidence. The justices encouraged the Texas Medical Board to “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” much as it did with COVID-19 protocols.
Until the Texas Medical Board offers that guidance, or the Supreme Court rules in Zurawski v. Texas, doctors who have said for 18 months they do not understand how to interpret these laws have little new to go on.
When the U.S. Supreme Court threw the abortion issue back to the individual states, it handed a great deal of authority to state supreme courts, which have typically drawn less attention than their federal counterparts. Texas’ Supreme Court is unique in that it handles only civil cases, and is one of just a handful of states that selects justices through a partisan election system.
All nine justices are Republicans, a mix of longtime jurists, acolytes of Gov. Greg Abbott, and at least one anti-abortion activist.
Justice John Phillip Devine was first elected in 2013, when he unseated a Republican incumbent and ran unopposed in the general election. Before joining the high court, he was best known for fighting to keep a copy of the Ten Commandments displayed in his courtroom, and during his campaign, proudly claimed he was arrested 37 times protesting outside abortion clinics.
He also made a campaign video about his wife’s seventh pregnancy, which she carried to term despite a lethal fetal abnormality. The baby died an hour after birth. According to the Texas Observer, the since-removed video asks, “What if your beliefs were so powerful, they allowed you to fearlessly risk your life for the life of your unborn child?”
Devine is up for reelection in 2024, alongside Justice Jimmy Blacklock, Abbott’s longtime general counsel. During his campaign, Blacklock attended an anti-abortion rally alongside Abbott, where the governor said he doesn’t “have to guess or wonder how Justice Blacklock is going to decide cases because of his proven record of fighting for pro-life causes.”
Blacklock told The Texas Tribune at the time that Abbott just meant he is confident in Blacklock’s judicial philosophy.
“I will be the kind of judge who looks only to the text of the Constitution and the text of the laws, and does not go beyond that to impose my own personal views on these cases,” Blacklock said.
After Monday’s ruling, the Texas Democratic Party said all three justices up for reelection will have challengers in the general election.
State Rep. Donna Howard, a Democrat, said this case, as much as any since the overturn of Dobbs, will hopefully shine a spotlight on the Texas Supreme Court
“The way the winter storm put ERCOT on everyone’s radar, abortion is going to put the Texas Supreme Court on people’s radar,” she said. “Voters may not have known who was on the Supreme Court or what the Supreme Court did before. But they will now.”
Disclosure: University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune.
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