Updated December 11, 2023 at 8:58 PM ET
Kate Cox, a 31-year-old woman from the Dallas area facing pregnancy complications who had sued the state of Texas for access to an abortion, has left the state to get the procedure, according to the Center for Reproductive Rights.
"This past week of legal limbo has been hellish for Kate," Nancy Northup, president and CEO at the Center for Reproductive Rights, wrote in a statement. "Her health is on the line. She's been in and out of the emergency room and she couldn't wait any longer." The group notes that Cox is not giving interviews and that the details about where she traveled for the abortion is not being disclosed to the public.
On Monday evening, hours after Cox's lawyers announced her decision to leave the state for care, the Texas Supreme Court issued a ruling in the case. It found that her lawyers and doctor had not proven she was eligible for an abortion under Texas's narrow exception to its abortion ban.
Texas enacted some of the strictest abortion laws in the country, before and after the constitutional right to an abortion was repealed when the Supreme Court overturned Roe v. Wade in June 2022.
The state has become a focus of legal action from patients and doctors seeking to clarify how those laws will be enforced. With this ruling, a picture is emerging in which doctors must decide when to apply the medical exception — and they can face extreme penalties up to life in prison if they get it wrong in the eyes of Texas law enforcement.
A fast-moving case
In late November, Cox received "devastating" news about her pregnancy, according to the petition filed in a Texas district court last week. At nearly 20-weeks gestation, she learned that her fetus has Trisomy 18 or Edwards Syndrome, a condition with extremely low chances of survival. Fetuses with Trisomy 18 often die before birth or just after.
Cox was also having issues with her health. She had been in the emergency room four times in two weeks with cramping and other concerning symptoms, according to court documents and her lawyer. Her doctors told her she was at high risk of developing gestational hypertension and diabetes. She also has two children already, and because she had had two prior cesarean sections, carrying the pregnancy to term could compromise her chances of having a third child in the future, the brief says.
The filing asked Judge Maya Guerra Gamble to allow the abortion to be performed in the state, where abortion is banned with very limited exceptions. Two days later, on Dec 7, District Court Judge Gamble ruled from the bench that the abortion should be permitted.
That same day, Texas Attorney General Ken Paxton appealed the ruling and sent a letter, shared on social media, addressed to all of the hospitals where Dr. Damla Karsan has admitting privileges. Karsan is a plaintiff in Cox's case as a physician who has met her and reviewed her medical chart, and who is willing to provide an abortion with the backing of the courts.
The Paxton letter says the hospitals and Karsan could still face felony charges and fines of no less than $100,000. It also says the hospitals could be liable for "potential regulatory and civil violations" if they allow Cox to have an abortion.
On Friday, Dec 8, the Texas Supreme Court put a temporary hold on Judge Gamble's ruling, pending review.
In its ruling issued Dec. 11, the state's high court said, "Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses."
It also said that doctors, not judges should be deciding whether the exception applies. The ruling reads, "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."
A request for clarity
There are currently three overlapping abortion bans in Texas. Abortion is illegal in the state from the moment pregnancy begins. Texas doctors can legally provide abortions in the state only if a patient is "in danger of death or a serious risk of substantial impairment of a major bodily function," the law says.
Doctors, hospitals and lawyers have asked for clarity on what "serious risk" of a major bodily function entails, and the Texas attorney general's office has held that the language is clear.
In open court in a previous case, an assistant attorney general for Texas suggested that doctors who delayed abortions for certain women who nearly died in complicated pregnancies were committing malpractice, and not applying the Texas abortion bans correctly.
In this case, Paxton argues in his letter to hospitals that Cox did not meet the standard laid out in the medical exception. Her petition to the court "fails to identify what 'life-threatening' medical condition that Ms. Cox purportedly has that is aggravated by, caused by, or arising from a pregnancy, nor does it state with specificity how this unidentified condition places Ms. Cox at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced."
The Texas Supreme Court sided with Paxton and vacated the order of the lower court that would have allowed Cox to get the abortion in Texas.
The Center for Reproductive Rights has repeatedly asserted that the exception language is vague and confusing for doctors and hospitals charged with making these calls, which is why it petitioned the court on Cox's behalf.
Judge Gamble in her ruling said that Cox should be able to get the procedure to preserve her ability to have future children. Blocking her from having the abortion would be a "genuine miscarriage of justice," Gamble said.
The petition argued that Cox did qualify for a legal abortion because of the risks to her future fertility if she carried the pregnancy to term. "If she has to be induced, there is a risk of uterine rupture," Cox lawyer Molly Duane told NPR. "If she has to have a repeat c-section, there is a risk of, again, uterine rupture and hysterectomy and she won't be able to try again for more children in the future, which she desperately wants to do."
Duane, who is a senior staff attorney at the Center for Reproductive Rights, also argued that the fact that Cox's fetus is very unlikely to survive is relevant to the case. "While there are serious concerns with her baby's health, there are also serious concerns with her own health and you cannot tease those apart – they are inextricably intertwined," Duane said.
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