AUSTIN, Texas (CN) — A Texas judge on Thursday granted a couple's request to allow them to obtain an abortion, ending a nonviable pregnancy, without fear of prosecution.
Travis County District Court Judge Maya Guerra Gamble issued the order following a short emergency hearing, granting relief to Kate Cox, her husband Justin Cox and Dr. Damla Karsan, an obstetrician from Houston. The order gives them 14 days to move forward with ending Cox’s pregnancy which has been deemed risky after she received a fatal fetal diagnosis last week.
Cox, who is 20 weeks pregnant, learned last week that her fetus has full trisomy 18, also called Edwards’ syndrome, a condition that affects a baby’s bodily development. There are no treatments and babies with the condition often don't survive to term, or die shortly after being born. Cox and her family chose to terminate the pregnancy to ensure their child did not suffer and to prevent any harm to Cox herself.
Despite being told by her doctors that continuing the pregnancy would jeopardize her health and future fertility, Cox was denied an abortion due to the state's strict abortion restrictions. Physicians have opted to cease offering the procedure, even when medically necessary, out of fear they may be prosecuted.
Anyone who provides an abortion in Texas faces up to 99 years in prison, a $100,000 fine and the revocation of their medical license. Doctors also fear having civil lawsuits being brought against them under Texas' Senate Bill 8, a law that prohibits abortion once fetal cardiac activity is detected and allows private citizens to sue suspected violators for a minimum of $10,000.
The only exception to the laws is if an abortion is being provided in a medical emergency that places the mother's life and/or bodily functions at risk.
Molly Duane, senior staff attorney at the Center for Reproductive Rights, argued on behalf of the plaintiffs in the case. She told the judge that without the court's intervention, Cox would have to wait to get sicker or near death for doctors to provide her with the care she needs.
"Now a patient must be about to die before a doctor can rely on the exception," Duane said. "This position is not only cruel and dangerous, but it flies in the face of the Texas Constitution, medical ethics and the laws themselves."
During her pregnancy, Cox has gone to the emergency room four times due to severe cramping, leaking fluids and elevated vital signs. A present concern is that her fertility may be harmed if forced to continue the pregnancy. Cox and her husband want to have more children in the future, and fear that won't be possible due to her current circumstances, the couple explained in their complaint.
Assistant Attorney General Johnathan Stone argued that the plaintiffs failed to show in pleadings that Cox qualified for the medical exception. “Now, maybe she does qualify for the medical exemption,” Stone said, “we don't know. But as it is currently pled, she does not meet all of the elements.”
Furthermore, Stone argued that the state would be injured if the plaintiffs get the relief they seek. He argued a temporary restraining order amounted to permanent relief, and would allow Cox to have the procedure without considering any evidence.
“The abortion, once performed, is permanent. It can't be undone,” Stone said. “So the plaintiffs are going to obtain permanent relief in this case through this temporary restraining order application without any evidence being considered by this court and a full-blown evidentiary hearing.”
Duane responded in turn: “I would just note that the harm to Miss Cox’s life, health and fertility are very much also permanent and cannot be undone.”
At the end of the hearing, Judge Gamble granted the plaintiffs' application.
Cox wiped away tears as the judge, who was also becoming emotional, said, “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.”
Texas Attorney General Ken Paxton responded to Gamble's ruling by sending a letter to three Houston hospitals where Dr. Karsan holds privileges. In his letter, Paxton referred to Gamble as an "activist judge" and said the temporary restraining order would not insulate the plaintiffs from legal action for violating state bans.
"While the TRO purports to temporarily enjoin actions brought by the [state attorney general and Texas Medical Board] against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens," Paxton wrote. "Nor does it prohibit a district or county attorney from enforcing Texas' pre-Roe abortion laws against you, Dr. Karsan, or anyone else."
Paxton, echoing Stone's arguments from earlier in the day, also claimed Cox doesn't qualify for the medical exception to Texas' abortion laws.
Marc Hearron, senior counsel at the Center for Reproductive Rights, called Paxton's letter an act of fearmongering.
“Rather than respect the judiciary, he is misrepresenting the court’s order," said Hearron. "He attacks the judge who rules against him as an 'activist judge' [and] is trying to bulldoze the legal system to make sure Kate and pregnant women like her continue to suffer.”
The Center for Reproductive Rights declined to comment on when Cox plans on receiving an abortion in the interest of protecting her and her family's safety.
Duane argued a similar case before the Texas Supreme Court a week ago. In Zuarwski v. Texas 20 women are suing the state, saying that the state’s abortion laws put their lives at risk after doctors denied them abortions. Two physicians, one being Dr. Karsan, are also named in the suit.
Together, the plaintiffs are asking the high court to leave intact a lower court's injunction placing a new standard for doctors to follow when evaluating pregnant patients with emergent medical conditions. The state of Texas has argued that the medical exception is clear and any harm to the patient plaintiffs was caused by their doctors refusing to provide care.
Follow @KirkReportsNews
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Newsom’s ‘May revise’ trims budget to $288 billion May 10, 2024 -
