Friday, May 10, 2024

A pregnant woman at the center of a legal fight in Texas over whether she could have an abortion under a medical exception to the state’s strict bans has decided to leave the state for the procedure, an abortion rights group representing her said on Monday.

The decision by the woman, Kate Cox, who is more than 20 weeks pregnant, came as the Texas Supreme Court was considering an appeal of a lower court order that would have allowed her to have an abortion in Texas despite the state’s overlapping bans.

Ms. Cox asked the lower court for approval after she learned that her fetus had a fatal condition, and after several trips to the emergency room.

The legal authorization she obtained from the lower court was put on hold when Ken Paxton, the state attorney general, appealed to the Texas Supreme Court. It was not clear what effect her decision to leave the state would now have on the legal case.

“Kate desperately wanted to be able to get care where she lives and recover at home surrounded by family,” Nancy Northup, the chief executive for the Center for Reproductive Rights, which was representing Ms. Cox in her case, said in a statement on X. “While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”

The case was believed to be the first to seek a court-ordered exception since the U.S. Supreme Court overturned Roe v. Wade last year, clearing the way for Republican-controlled states like Texas to enact near-total bans on abortions.

It marked a new chapter in the legal history of abortion in the United States, with pregnant women now going to court seeking permission for their doctors to do what they determine to be medically necessary without fear of severe criminal or civil penalties. Legal challenges have emerged in several states where doctors said the bans were preventing abortions even in cases of serious pregnancies complications.

Last week, a Kentucky woman who was eight weeks pregnant filed suit seeking to overturn that state’s bans.

Ms. Cox’s case, filed last week, was unusual for being brought during her pregnancy. At the same time that the Texas Supreme Court was considering her case, it was also weighing an action brought by women and their doctors, represented by the Center for Reproductive Rights, seeking to clarify the limits of medical exceptions to the Texas abortion bans.

That case, Zurawski v. Texas, involves women who said they were forced to continue pregnancies, despite dangers to their health, because the vagueness of the state’s exemptions made doctors extremely cautious about when a medical condition was serious enough to allow for an abortion. Ms. Cox’s husband and her doctor, Damla Karsan, are also represented by the Center for Reproductive Rights.

A Texas judge gave Kate Cox, whose fetus had a fatal diagnosis, permission to get an abortion. Credit…Kate Cox, via Associated Press

Through September, Texas recorded only 34 abortion procedures performed in the state in 2023, according to state health statistics. In 2020, before the first of the state’s highly restrictive laws went into effect, there were more than 50,000.

In the case of Ms. Cox, lawyers for Mr. Paxton’s office argued that she did not meet the criteria for a medical exception to the state’s overlapping abortion bans, which are among the strictest in the nation, and said she was seeking an “elective abortion.”

Ms. Cox’s fetus received a diagnosis of trisomy 18, a genetic abnormality that in all but rare cases results in miscarriage, stillbirth or an infant’s death within the first year after birth. Dr. Karsan, who is also a plaintiff in the Zurawski case, determined that an abortion would be the safest option for the mother’s health and to preserve her ability to have children in the future.

Ms. Cox, a mother of two young children who has said she would like a big family, has been to the emergency room four times during the course of her pregnancy for symptoms including discharge and cramping.

The lower court judge, Maya Guerra Gamble, a Democrat in the Travis County district court, agreed in her ruling that Ms. Cox could have the abortion under Texas law.

Dr. Karsan “believes in good faith, exercising her best medical judgment,” that an abortion was the medically recommended course of action, the judge wrote. The judge, issued a temporary restraining order barring Mr. Paxton and others from enforcing the state bans against Dr. Karsan, Ms. Cox’s husband, and any medical staff members who assisted an abortion in her case.

The ruling applied only to Ms. Cox’s current pregnancy.

Mr. Paxton objected, first sending letters to three Houston hospitals where Dr. Karsan can admit patients, saying that the judge’s order was only temporary and would not protect them from civil or criminal penalties if they allowed Ms. Cox’s procedure. Soon after, Mr. Paxton appealed the lower court’s order to the Texas Supreme Court, whose nine members are all Republicans.

In their brief, state lawyers argued that to allow abortions to be performed based on the standard of a “good faith” determination of a doctor that they are medically necessary “opens the floodgates to pregnant mothers procuring an abortion” through a willing doctor.

Under Texas law, a doctor convicted of performing an illegal abortion can face a prison term of up to 99 years and fines of at least $100,000. The bans allow for abortions when a pregnancy seriously threatens the health or life of the woman.

Lawyers for Mr. Paxton’s office argued that the standard for determining what constitutes a serious threat was clear: a doctor’s “reasonable medical judgment” that a pregnancy posed such a risk; they said Ms. Cox did not meet that threshold.

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