Texas Supreme Court rules against woman who sought abortion hours after she says she’ll travel out of state

A Texas woman whose fetus has a fatal diagnosis and who was awaiting a decision from the Texas Supreme Court about whether she would be allowed to get an abortion said Monday that she has decided to leave Texas to get the procedure.

Kate Cox, a mother of two who is around 20 weeks pregnant, found out just after Thanksgiving that her developing fetus has trisomy 18, a fatal diagnosis. Seeking to terminate the pregnancy to protect her health and future fertility, she and her husband sought a court order to block Texas’ abortion bans from applying in her case.

A state district judge granted the request Thursday, but then the state Supreme Court temporarily paused the lower court’s order Friday. On Monday evening, the Texas Supreme Court directed the lower court to vacate its order.

“A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion,” the court wrote in its decision, adding: “The law leaves to physicians — not judges — both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.”

Molly Duane, a senior staff attorney at the Center for Reproductive Rights, which is representing Cox, said the Supreme Court “ruling should enrage every Texan to their core.”

“If Kate can’t get an abortion in Texas, who can? Kate’s case is proof that exceptions don’t work, and it’s dangerous to be pregnant in any state with an abortion ban,” Duane said.

Before the Supreme Court issued its ruling, Cox’s lawyers said she intended to proceed with the lawsuit despite seeking an out-of-state abortion.

Duane said Cox had to seek medical care outside Texas “due to the ongoing deterioration” of her health.

Kate Cox.
Kate Cox.Courtesy The Center for Reproductive Rights

In a statement, Nancy Northup, the president and CEO of the Center for Reproductive Rights, said: “This past week of legal limbo has been hellish for Kate. Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer.”

“She desperately wanted to be able to get care where she lives and recover at home surrounded by family,” Northup added. “While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”

Texas has two primary laws restricting abortion. The first, enacted before the U.S. Supreme Court’s Dobbs decision struck down Roe v. Wade last year, authorizes private citizens to file civil suits against anyone who provides or abets an abortion after about six weeks’ gestation. Under the second — the state’s trigger law, which took effect after Dobbs — it is a felony to perform an abortion from the moment of fertilization. Each law offers limited exceptions for medical emergencies.

Trisomy 18 is a rare chromosomal disorder likely to cause stillbirth or the death of a baby shortly after it’s born. It also poses health risks to a pregnant patient.

Texas Attorney General Ken Paxton and lawyers for the state argued that Cox’s attorneys hadn’t sufficiently demonstrated that her situation qualified for an exception to the state’s abortion laws or that she would suffer “immediate and irreparable injury” without one.

In the filing Monday, Cox’s attorneys said another reason she chose to leave the state is the attorney general’s “ongoing threats” to enforce Texas’ abortion laws against her.

After the lower court’s ruling, Paxton said in statement that the order wouldn’t prohibit private citizens or district or county attorneys from enforcing Texas’ pre-Roe abortion laws against Cox’s doctor or anyone else. He added that the judge’s order would “expire long before the statute of limitations for violating Texas’ abortion laws.”

The panel of judges that decided on Cox’s case leans conservative.

“A pregnant woman does not need a court order to have a life-saving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment,” it said in its decision.

Kimberly Mutcherson, a professor of law at Rutgers Law School, said that part of what the Texas Supreme Court judges had to consider was whether they wanted “to be in the business of having every single medical exemption case end up” in their hands.

During the lower court hearing Thursday, Duane argued that Cox was at high risk for multiple pregnancy complications, including hypertension, gestational diabetes and infection.

“Many of Miss Cox’s health risks during this pregnancy will put her life in danger if left untreated, and carrying this pregnancy to term will significantly increase the risks to her future fertility, meaning that she and her husband may not be able to have more children in the future,” Duane said.

State District Judge Maya Guerra Gamble acknowledged those risks when she granted Cox’s requested order Thursday.

“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.

A 2017 study found that trisomy 18 was associated with an increased risk of gestational diabetes, preterm delivery and cesarean section.

Dr. Leilah Zahedi-Spung, a maternal-fetal medicine physician in Colorado and a spokesperson for the Society for Maternal-Fetal Medicine, said prolonging a pregnancy “only increases the risks of things like gestational diabetes and preeclampsia, which we know have long-standing effects on the health of people who can have children down the line.”

According to her petition, Cox has elevated glucose levels, which put her at high risk for gestational diabetes. She also delivered both her children via cesarean section, and that makes her more likely to need the surgery — which brings more risks than vaginal birth — again.

Already, Cox has been to the emergency room four times “for pregnancy symptoms including severe cramps, leaking fluid and elevated vital signs,” according to her lawyers.

Trisomy 18 is random, occurring in around 1 out of every 2,500 pregnancies, according to the Cleveland Clinic. At least 95% of fetuses with the condition don’t survive to full term, meaning pregnancies end in miscarriage or babies are stillborn. Almost 40% don’t survive labor, and less than 10% live past their first year.

The condition causes multiple anomalies that prevent babies from surviving outside the womb, such as brain, facial, cardiac and abdominal wall defects.

Cox’s lawsuit is among the first of its kind — very few pregnant women have filed legal challenges to their states’ abortion restrictions.

In Kentucky, a pregnant woman filed a similar suit last week, alleging that she and others like her are suffering “irreparable harm” as a result of the state’s abortion ban.

In an ongoing lawsuit in Texas, meanwhile, a group of women who were denied abortions have sued the state seeking to clarify the types of situations that constitute medical emergencies.