(NEW YORK) — Texas’ Supreme Court on Monday ruled against a woman who sued for an emergency abortion in her home state, overturning a lower court’s ruling last week.
Kate Cox, 31, filed a lawsuit after she said she was denied an abortion for a pregnancy with a severe anomaly.
In its opinion, released Monday night, the Texas Supreme Court acknowledged that Cox’s pregnancy “has been extremely complicated” and “parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis.” In its opinion, though, the judges wrote that “[s]ome difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses. The exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks. [Cox’s doctor] 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.”
Earlier on Monday, Cox was reportedly leaving the state to get care, according to the Center for Reproductive Rights, which is representing her.
Last Friday, the state’s Supreme Court temporarily put the lower court’s decision on hold, saying it needed more time to consider the case, according to court documents.
Texas Attorney General Ken Paxton had asked the high court to reverse Travis County District Court Judge Maya Guerra Gamble’s decision granting Cox’s request for an abortion for a pregnancy with a severe fetal anomaly.
The state’s Supreme Court said Monday night in its opinion, that going forward, its decision should not prohibit any woman “who meets the medical-necessity exception” from obtaining an abortion without seeking a court order.
“Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function,” the opinion read. “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.”
Earlier on Monday, Nancy Northup, president and CEO for the CRR, said the “legal limbo” in court has been difficult for Cox.
“This past week of legal limbo has been hellish for Kate,” Northup’s statement read. “Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer. … Kate’s case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work. She desperately wanted to be able to get care where she lives and recover at home surrounded by family. While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”
Cox’s representatives had asked that the Texas Supreme Court still issue a ruling, even though she is getting an abortion out of state.
“Because the issues in this case are capable of repetition yet evading review, the Plaintiffs nonetheless intend to proceed with their case,” Molly Duane, Cox’s lawyer from the CRR, said in a letter to clerk of the Texas Supreme Court earlier Monday.
Cox has received offers to help her access abortion in other states, such as Colorado, and other countries, including Canada, according to the CRR. It has not been disclosed where she is receiving abortion care.
In Cox’s original lawsuit, she said her baby received a diagnosis of full trisomy 18, which is a condition with a very high likelihood of miscarriage or stillbirth and low survival rates.
According to Marc Hearron, senior counsel at CRR, Cox has been told by physicians that they can provide her with an induction of labor if the baby’s heart stops beating. Cox — already a mother of a 3-year-old and a 1-year-old — has had two cesarean deliveries, and was told that an “induction carries serious risk of uterine rupture,” according to the lawsuit.
“I do not want to put my body through the risks of continuing this pregnancy. 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, full of medical tubes and machinery,” Cox said in the lawsuit.
“Trisomy 18 babies that survive birth often suffer cardiac or respiratory failure. I do not want my baby to arrive in this world only to watch her suffer a heart attack of suffocation. I desperately want the change to try for another baby and want to access the medical care now that gives me the best chance at another baby,” Cox said in the lawsuit.
The CRR also alleged that Cox’s health is at risk and that she “risks debilitating health complications” if she continues her pregnancy, including potential loss of fertility.
Texas has multiple abortion bans in place and is one of 16 states that has ceased nearly all abortion services since the U.S. Supreme Court issued a decision overturning Roe v. Wade, ending federal protections for abortion rights, according to an ABC News tally.
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. 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.
Plaintiffs allege that the laws are confusing and do not define the exception to bans — which allow abortions to save the life of the mother or preserve bodily function — and wager significant penalties against doctors, up to life in prison.
In a new court filing Sunday, Attorney General 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. His office argued that a fatal fetal abnormality also wouldn’t qualify.
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