A judge ruled on Thursday that Kate Cox, who sued the state of Texas asking to be allowed to terminate her non-viable pregnancy, may have an abortion. Not granting the temporary restraining order Cox requested would be “a genuine miscarriage of justice,” District Judge Maya Guerra Gamble said at an emergency hearing.
But Texas Attorney General Ken Paxton said he would disregard the decision, sending a letter to the hospitals in which Dr. Damla Karsan, an OB/GYN who has agreed to perform the abortion, holds privileges. He threatened to prosecute her, called Gamble “an activist judge” in a statement, and said the ruling “will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’s abortion laws.”
This is the first time since Roe v. Wade was decided 50 years ago that a pregnant patient has sued for permission to get an abortion, according to the Center for Reproductive Rights. Cox says that she was well into her second trimester when she discovered a serious fetal anomaly — one that means her baby will be born with severe complications, if it survives the birth at all. To preserve her health and to avoid a devastating outcome, Cox requested a reprieve from Texas’s extreme abortion bans, which outlaw the procedure in almost every case.
At the virtual hearing on Thursday, Cox appeared with her husband, Justin Cox, who is also a plaintiff in the case. She began crying after Gamble said she’d grant the restraining order, which blocks Texas from enforcing abortion bans against Cox, her husband, Karsan, and Karsan’s staff. It’s unclear where Cox will be able to terminate her pregnancy.
“It is not a matter of if I will have to say good-bye, but when,” Cox had said in her lawsuit. “I do not want to continue the pain and suffering that has plagued this pregnancy. 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 says she and her family were thrilled when they learned she was pregnant in August. A 31-year-old mother of two, Cox had been hoping to expand her family. But their joy was short-lived: In late November, she received confirmation that the baby has trisomy 18, a rare and severe genetic disorder that is often fatal. Scans show the fetus is developing with an umbilical hernia, a twisted spine, a clubfoot, and an irregular skull and heart, the lawsuit says. Additionally, the complaint notes that Cox, who is currently 20 weeks pregnant, has been to three different emergency rooms within the past month, suffering severe cramping and unidentifiable fluid leaks. Each time, she says, she has been sent back home, with doctors allegedly informing her there were no other signs of maternal or fetal distress. At the hearing, attorney Molly Duane noted that Cox had returned to the emergency room once again this week.
Due to the fetus’s condition, Cox’s pregnancy is unlikely to end in a live birth. At the same time, because of her medical history — which includes two prior C-sections and elevated glucose levels — Cox’s doctors have warned her that carrying to term poses a risk to both her health and her future fertility. For those reasons, she decided she wanted to have an abortion, but Texas law currently prohibits termination except in instances of narrowly defined medical emergencies, which do not include fatal fetal abnormalities. Doctors who provide abortion care outside those parameters could face life in prison and fines of up to $100,000. And under SB8, private citizens can sue anyone who helps a patient obtain an abortion, opening up the possibility of civil action in addition to criminal penalties.
In Texas and across the country, critics of abortion bans have repeatedly emphasized that restrictive terms create serious health hazards for pregnant people. Similar lawsuits are wending their way through the courts in other states, while in Texas, 20 women who said they were denied emergency abortion care despite carrying nonviable pregnancies filed a separate legal challenge earlier this year. That case, Zurawski v. State of Texas, is currently under consideration by the state’s supreme court with a decision expected in a few months. A judge had previously ruled in favor of the plaintiffs, saying the current law was too restrictive for those with pregnancy complications, but an appeal by the Texas attorney general’s office put the ruling on hold.
The Center for Reproductive Rights, which represents Cox and the plaintiffs in Zurawski, argued that Cox couldn’t wait until the case was decided. “Trisomy 18 babies that survive birth often suffer cardiac or respiratory failure,” Cox says in the complaint. “I do not want my baby to arrive in this world only to watch her suffer a heart attack or suffocation. I desperately want the chance to try for another baby and want to access the medical care now that gives me the best chance at another baby.”
The judge agreed with those claims. “The idea that Ms. 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.
The Cut offers an online tool you can use to search by Zip Code for professional providers, including clinics, hospitals, and independent OB/GYNs, as well as for abortion funds, transportation options, and information for remote resources like receiving the abortion pill by mail. For legal guidance, contact Repro Legal Helpline at 844-868-2812 or the Abortion Defense Network.
