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Update: Texas Supreme Court rules abortion petition failed to meet ban’s exception standards

A patient exam room sits empty at Alamo Women's Reproductive Services in San Antonio Aug. 16, 2022. On Dec. 8, the Texas Supreme Court temporarily stayed a district judge's ruling that would have allowed a pregnant mother to abort her baby with trisomy 18, claiming carrying the pregnancy to term was also putting her life at risk. (OSV News photo/Callaghan O'Hare, Reuters)

By Gina Christian and Kate Scanlon

(OSV News) — The Texas Supreme Court on Dec. 11 overruled a district judge’s order allowing a pregnant mother to obtain an abortion under an exemption to the state’s abortion ban. The justices ruled the woman’s case, which required a doctor to exercise “reasonable medical judgment” regarding the danger of pregnancy to the woman’s health, failed to meet the standards crafted by the Legislature.

Hours prior to the ruling, the woman’s attorneys reported she left Texas to seek an abortion elsewhere.

“After a week of legal whiplash and threats of prosecution from Texas Attorney General Ken Paxton, our client Kate Cox has been forced to flee her home state of Texas to get the time-sensitive abortion care needed to protect her health and future fertility,” the Center for Reproductive Rights, the public interest firm representing Cox, wrote on social media.

The high court’s seven-page order, issued on the evening of Dec. 11, followed the court’s stay from three days earlier that put a hold on Judge Maya Guerra Gamble’s temporary restraining order permitting Cox, a 31-year-old mother of two from the Dallas area, to have a “dilation and evacuation” abortion under narrow exceptions to Texas’ ban.

In her lawsuit, Cox sought permission from a judge to undergo an abortion after her unborn baby was diagnosed with trisomy 18, alleging the pregnancy was also putting her life at risk as well as her hopes for future children. The genetic condition, also known as Edwards syndrome, often leads to miscarriage and stillbirth, with a 90-95% mortality rate for babies within the first year after birth. Her attorneys said that earlier the same week, Cox, who is 20 weeks pregnant, went to an emergency room for a fourth time during her pregnancy.

Cox’s lawsuit was reportedly the first challenge to a state abortion ban seeking permission for an abortion from a judge since the U.S. Supreme Court issued its June 2022 decision in Dobbs v. Jackson Women’s Health Organization overturning prior precedent making abortion access a constitutional right.

In its Dec. 11 ruling, the Texas Supreme Court said that Cox’s physician, Dr. Damla Karsan, had “asked a court to pre-authorize the abortion,” yet Karsan “could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.”

The high court noted that Karsan “did not assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.”

The court said that “no one disputes that Ms. Cox’s pregnancy has been extremely complicated,” noting, “Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis.

“Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses,” said the court.

The ruling also stressed that “a woman who meets the medical-necessity exception need not seek a court order to obtain an abortion.

“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,” said the ruling. “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.”

While it gives physicians discretion, the statute “requires more than a doctor’s mere subjective belief,” said the ruling. “By requiring the doctor to exercise ‘reasonable medical judgment,’ the Legislature determined that the medical judgment involved must meet an objective standard.”

The ruling qualified that “this case is not premised on the constitutionality of the abortion
statutes generally or the objective standard specifically,” and noted that Karsan “has raised
constitutional challenges to the statute” in another case pending before the Texas Supreme Court.

The justices ruled that although Karsan had “asserted she has a ‘good faith belief'” that Cox qualified for the exception, she did not demonstrate that her belief met that standard.

A second post-Dobbs lawsuit petitioning the court to permit an abortion is taking place in Kentucky. On Dec. 8, an unnamed Kentucky woman filed a class-action lawsuit against two of that state’s abortion bans, one of which makes abortion illegal unless necessary to save the mother’s life or to “prevent the serious, permanent impairment of a life-sustaining organ” in her. The state’s six-week ban prohibits abortion once the baby’s heartbeat has been detected, with exceptions only permitted in case of a medical emergency. The American Civil Liberties Union is among the groups representing the woman, who is approximately eight weeks pregnant and is named in the suit only as “Jane Doe.”

Following the Dobbs decision, which returned the matter of regulating or restricting abortion back to the legislative branch, U.S. Catholic bishops have reiterated the church’s concern for both mother and child, while emphasizing Catholic teaching that all human life is sacred and must be respected from conception to natural death. As such, the church opposes direct abortion as an act of violence that takes the life of the unborn child.

In a recent editorial published in The Dallas Morning News, Cox wrote, “An abortion was not something I ever imagined I would want or need; I just never thought I’d be in the situation I’m in right now. Twenty weeks pregnant with a baby that won’t survive and could jeopardize my health and a future pregnancy.”

“I do not want to continue the pain and suffering that has plagued this pregnancy or continue to put my body or my mental health through the risks of continuing this pregnancy,” Cox wrote. “I do not want my baby to arrive in this world only to watch her suffer.”

Following the district judge’s temporary order on Dec. 7, the office of Texas Attorney General Ken Paxton warned Houston hospitals, doctors and anyone else involved in procuring an abortion for Cox that they risked “civil and criminal liability for violating Texas’ abortion laws.”

In an email to OSV News prior to the high court’s ruling, Kimberlyn Schwartz, director of media and communication for Texas Right to Life, said, “We mourn the loss of Baby Cox, and we want parents to know that there is hope in their grief when facing difficult fetal illnesses.”

“There are life-affirming options rather than abortion,” Schwartz said. “Nonprofits across America, such as Abel Speaks (abelspeaks.org), help parents honor their children’s lives when facing a life-limiting diagnosis.”


Gina Christian is a national reporter for OSV News. Follow her on X at @GinaJesseReina. Kate Scanlon is a national reporter for OSV News covering Washington. Follow her on X (formerly Twitter) @kgscanlon. 

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