Texas Supreme Court temporarily blocks ruling that allowed woman emergency abortion

Kate Cox had asked a Texas court for an abortion to preserve her fertility.

December 10, 2023, 5:06 PM

The Texas Supreme Court temporarily blocked a historic lower court ruling on Friday that allowed a Texas woman to get an emergency abortion.

The state's attorney general asked the high court to reverse a judge's decision granting a woman's request for an abortion for a pregnancy with a severe anomaly.

The Supreme Court said it will weigh in on the matter and put the lower court's decision on hold until it has more time to consider the case, according to court documents.

The woman, Kate Cox, had filed a lawsuit against the state over its restrictive abortion bans, asking a judge to grant her a temporary restraining order that would allow her to get an abortion.

"While we still hope that the Court ultimately rejects the state's request and does so quickly, in this case we fear that justice delayed will be justice denied," said Molly Duane, senior staff attorney at the Center for Reproductive Rights. "We are talking about urgent medical care. Kate is already 20 weeks pregnant. This is why people should not need to beg for health care in a court of law."

Judge Maya Guerra Gamble, a Democrat elected to the bench, granted Cox's request.

"The idea that Miss 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," Gamble said on Thursday.

Cox could be seen wiping away tears as Gamble issued her decision. Guerra Gamble's order has been processed. A temporary restraining order prohibiting the implementation of any of Texas' abortion bans, including SB8 which allows private citizens to sue anyone who aids in providing an abortion, will remain in effect until Dec. 20.

The ruling came in the first publicized case of a woman suing for an emergency abortion since Roe v. Wade in 1973.

In a new court filing on Sunday, Texas Attorney General Ken Paxton told the state’s high court that fertility risks don’t qualify as a life-threatening condition that would allow a patient to get an abortion under Texas laws.

Neither would a fatal fetal abnormality qualify, his office argued.

The court filing is the most detailed explanation yet provided by Paxton on why his administration believes Kate Cox should be required to continue her pregnancy.

On her fertility in particular, the filing noted that Cox would likely face similar risks of uterine rupture in future pregnancies.

And, according to Paxton, it appears Cox didn’t want to assume those risks with this particular pregnancy only because the fetus was unlikely to survive.

The state of Texas says she doesn’t get that choice, under existing laws.

The plaintiffs have "failed to explain why these risks require the abortion of this child," the office wrote.

"A fatal fetal condition does not meet the medical exception," the filing states. "Rather, the only question is whether Ms. Cox’s condition meets the exception, regardless of how long the child is expected to live."

The night before the temporary block was issued, Paxton had filed an appeal asking the Texas Supreme Court to immediately block the restraining order, writing that "time is of the essence."

"Each hour it remains in place is an hour that Plaintiffs believe themselves free to perform and procure an elective abortion," the filing stated. "Nothing can restore the unborn child's life that will be lost as a result."

A response filed by the Centers for Reproductive Rights on Cox's behalf called the state's petition "stunning in its disregard for Ms. Cox's life, fertility, and the rule of law."

Cox is currently carrying a pregnancy with virtually no chance the baby -- who has trisomy 18 -- will survive to birth or long afterward. She said she has been denied the safest form of abortion care for her -- a dilation and evacuation procedure. The CRR would not disclose when or where Cox plans to obtain her abortion care due to safety concerns.

In an interview the night before the ruling, Cox told ABC News' Rachel Scott that she was shocked to hear from her doctor that she could not get the care she wanted in Texas.

"We're grieving the loss of a child. There's no outcome here that results in us taking home a healthy baby girl. So it's hard. It's overwhelming," Cox said.

"I asked my doctor, you know, best case, how much time she thinks we would have with her. And she said, 'Could be an hour. Could be a week,' but that we needed to prepare ourselves to be placing this baby onto hospice. There's no treatment. So that was very, very hard," Cox said.

PHOTO: The Travis County 459th District Court is seen prior to a hearing in Cox v. Texas, in Austin, on Dec. 7, 2023. Kate Cox sued the state of Texas in order to get an abortion for a pregnancy she and her doctors say threatens her life and fertility.
The Travis County 459th District Court is seen prior to an emergency hearing in Cox v Texas, in Austin, Texas, on Dec. 7, 2023. Kate Cox, a 31-year-old mother-of-two from Dallas-Fort Worth, sued the state of Texas on Dec. 5, 2023, in order to get an abortion for a pregnancy that she and her doctors say threatens her life and future fertility.
Suzanne Cordeiro/AFP via Getty Images

Cox said she "desperately" wants a chance to have another baby and grow her family.

"I'm a Texan. I love Texas. I'm raising my children here. I was raised here. I've built my academic career, my professional career here. You know, I plan to stay. And so, I want to be able to get access to the medical care that I need, and my daughter to have it as well," Cox said.

Johnathan Stone, with the Texas Attorney General's Office, argued in court that Cox hadn't proved she would suffer "immediate and irreparable injury" and suggested that a subsequent hearing be allowed with more evidence.

He said under state law doctors can use "reasonable medical judgement" in providing an emergency abortion to protect a woman's life at risk, but that it didn't appear Cox met that definition.

Duane said that standard is impossible to meet without harming a woman.

"The state attempts to second guess Miss Cox's positions and say that she is still not sick enough," Duane said. "They have moved the goalposts once again. Now a patient must be about to die before a doctor can rely on the exception. This position is not only cruel and dangerous, but it flies in the face of the Texas Constitution, medical ethics and the laws themselves."

In a conference call after the ruling, Duane said they were "relieved" that the judge ruled in Cox's favor.

"Every day of this ordeal has been agonizing for her and today she finally got recognition that she has a right to the health care she needs," Duane said.

Cox did not consider traveling to another state because she was in the middle of a health crisis and was worried about her condition, according to Duane. When she got a diagnosis for her baby, the CRR had just been in court defending its lawsuit over the Texas bans, so she reached out to them, according to Duane.

The Travis County 459th District Court is seen prior to an emergency hearing in Cox v. Texas, in Austin, Texas, on Dec. 7, 2023.
Suzanne Cordeiro/AFP via Getty Images

Following Cox's win in court, the Texas attorney general warned that the doctors who perform her abortion could still get sued by private citizens.

Under Texas' bans, it is a second-degree felony to perform or attempt an abortion, punishable by up to life in prison and a fine of up to $10,000. The law also allows private citizens to sue anyone who "aids or abets" an abortion.

Paxton also threatened to come after the hospitals' licenses.

In a letter to the hospitals, he said the restraining order "won't insulate you or anyone else."

The hearing was held in Travis County's 459th District Court in Austin, and lasted about a half hour before the ruling was delivered.

This undated handout photo provided courtesy of Kate Cox, shows Cox standing for a photo in Dallas-Fort Worth, Texas.
Handout/Kate Cox/AFP via Getty Images

Cox's lawsuit stands separate from a suit filed by 20 women who say their lives were put in danger due to Texas' abortion bans.

That suit is before the Texas state Supreme Court for a ruling on whether the challenge can continue and if a temporary hold on implementation of the bans in cases of fatal fetal anomalies and medical emergencies can go into effect.

The CRR declined to comment on whether Cox has plans to further pursue a case legally or if she is considering joining the other lawsuit as a plaintiff.

Texas has multiple overlapping abortion bans in effect with severe punishments for violations of the bans.

Texas' bans include exceptions that allow abortions in cases of medical emergencies and fatal fetal diagnoses, but doctors and patients claim, in another lawsuit filed in March, that they are unable to provide care or have been denied care, respectively, under the laws.

ABC News' Anne Flaherty contributed to this report.

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