Texas AG threatens to prosecute doctors in emergency abortion

[December 08, 2023]  By Brendan Pierson

(Reuters) - Texas Attorney General Ken Paxton on Thursday threatened to prosecute any doctors involved in providing an emergency abortion to a woman, hours after she won a court order allowing her to obtain one for medical necessity.

Paxton said in a letter that the order by District Court Judge Maya Guerra Gamble in Austin did not shield doctors from prosecution under all of Texas's abortion laws, and that the woman, Kate Cox, had not shown she qualified for the medical exception to the state's abortion ban.

Paxton said in a statement accompanying the letter that Guerra Gamble's order "will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas' abortion laws."

The letter was sent to three hospitals where Damla Karsan, the doctor who said she would provide the abortion to Cox, has admitting privileges.

"Fearmongering has been Ken Paxton's main tactic in enforcing these abortion bans," Marc Hearron, senior counsel at Center for Reproductive Rights, which represents Cox, said in a statement. "He is trying to bulldoze the legal system to make sure Kate and pregnant women like her continue to suffer."

Cox, 31, of the Dallas-Fort Worth area filed a lawsuit on Tuesday seeking a temporary restraining order preventing Texas from enforcing its near-total ban on abortion in her case, saying her continued pregnancy threatened her health and future fertility. Guerra Gamble said she was granting the order at a hearing Thursday morning.

Cox's lawyers have said her lawsuit is the first such case since the U.S. Supreme Court last year allowed states to ban abortion.

Cox's fetus was diagnosed on Nov. 27 with trisomy 18, a genetic abnormality that usually results in miscarriage, stillbirth or death soon after birth.

Cox, who is about 20 weeks pregnant, said in her lawsuit that she would need to undergo her third Caesarian section if she continues the pregnancy. That could jeopardize her ability to have more children, which she said she and her husband wanted.

"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," said Guerra Gamble in Austin, Texas, state court, at Thursday's hearing.

A few abortion rights demonstrators remain in the crowd after hours of public comments and discussion as Denton’s city council meets to vote on a resolution seeking to make enforcing Texas’ trigger law on abortion a low priority for its police force, in Denton, Texas, June 28, 2022. REUTERS/Shelby Tauber/File Photo

The judge's ruling applies only to Cox, and does not expand abortion access more broadly.

Cox's lawyer, Molly Duane of the Center for Reproductive Rights, told reporters on a call after the hearing that Guerra Gamble's order allowed Cox to obtain the abortion. She declined to provide any details about Cox's immediate plans, citing concerns for her and her doctors' safety.

"I want to emphasize how unforgivable it is that Kate had to beg for healthcare in court," Duane said. "No one should have to do this and the reality is 99 percent of people cannot."

The state's abortion ban includes only a narrow exception to save the mother's life or prevent substantial impairment of a major bodily function. Cox said in her lawsuit that, although her doctors believed abortion was medically necessary for her, they were unwilling to perform one without a court order in the face of potential penalties including life in prison and loss of their licenses.

Johnathan Stone, a lawyer for the state, had said at Thursday's hearing that Cox had not shown she qualified for the exception. He said showing that would require a more through hearing on evidence, rather than a temporary restraining order.

Cox's husband, Justin Cox, and Dr. Karsan are also plaintiffs in the case.

Karsan is also one of 22 plaintiffs in a separate lawsuit seeking a broader order protecting Texas women's right to abortions their doctors deem medically necessary, in which the state's highest court heard arguments last week. The court has not ruled in that case.

(Reporting by Brendan Pierson in New York; Editing by Alexia Garamfalvi, Richard Chang and David Gregorio)

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