Texas top court rules against woman who sought abortion for medical emergency

[December 12, 2023]  By Brendan Pierson

(Reuters) -The Texas Supreme Court on Monday overturned a lower court's ruling that would have allowed a pregnant woman to get an emergency abortion under the medical exception for the state's near-total abortion ban, granting a petition by Republican Attorney General Ken Paxton.

The unanimous ruling from the Texas Supreme Court came hours after lawyers for the woman, Kate Cox, said in a court filing that she had left the state to obtain the abortion, but nonetheless wanted to pursue the case. Cox has said her fetus had a fatal diagnosis and that her health was at risk if she continued the pregnancy to term, including her ability to have more children in the future.

The high court, whose nine justices are all Republicans, said in its unsigned opinion that a "good faith belief" by Damla Karsan, a doctor who sought to perform the abortion and sued alongside Cox, that the procedure was medically necessary was not enough to qualify for the state's exception.

Instead, the court said, Karsan would need to determine in her "reasonable medical judgment" that Cox had a "life-threatening condition" and that an abortion was necessary to prevent her death or impairment of a major bodily function.

"A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion," the court wrote. "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," the court wrote.

The case is a major test of the scope of the medical exception, an issue that is already before the court in a separate case brought by 22 women who experienced pregnancy complications, though none of those women was seeking an immediate abortion. Monday's ruling appeared to reject a key argument by the plaintiffs in that case - that doctors' good-faith belief should be enough to meet the exception.

"This ruling should enrage every Texan to their core," Molly Duane of the Center for Reproductive Rights, a lawyer for Cox, said in a statement. "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."

Paxton's office did not immediately respond to a request for comment.

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.

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

Paxton had urged the Texas Supreme Court to quickly step in after District Court Judge Maya Guerra Gamble at a hearing in Austin last Thursday issued a temporary restraining order allowing Cox to have an abortion.

In his filing to the top court, Paxton's office said Cox fell "far short of demonstrating" she met the criteria for a medical exception and warned that Texas courts were not intended to be "revolving doors of permission slips to obtain abortions."

Cox, 31, of the Dallas-Fort Worth area, filed a lawsuit last Tuesday seeking a temporary restraining order preventing Texas from enforcing its abortion ban in her case.

Cox's lawyers have said her lawsuit is the first such case since the U.S. Supreme Court last year reversed its landmark 1973 Roe v. Wade ruling, which had guaranteed abortion rights nationwide.

Cox, who was about 20 weeks pregnant when she first sued, 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.

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 a lack of clarity in how the exception would be interpreted and potential penalties including life in prison and loss of their licenses for violating the state's abortion laws.

Paxton warned in a letter sent shortly after Gamble issued the order that it did not shield doctors, hospitals or anyone else from prosecution or potential civil liability for violating Texas' abortion laws. The letter was sent to three hospitals where Karsan has admitting privileges.

Last Friday, while the case was pending, a pregnant woman in Kentucky filed a new class action lawsuit challenging that state's abortion ban.

(Reporting By Brendan Pierson in New York; Editing by Alexia Garamfalvi, Bill Berkrot and Leslie Adler)

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