The Texas Supreme Court on Monday overturned a lower court order allowing the abortion of a pregnant woman whose fetus had been diagnosed with a fatal disease, hours after her lawyers said she had decided to leave Texas for the procedure in the face of the state’s abortion bans.
The court ruled that the lower court erred in ruling that the woman, Kate Cox, who was more than 20 weeks pregnant, was entitled to a medical exception.
In its seven-page decision, the Supreme Court found that Ms. Cox’s doctor, Damla Karsan, “asked the court to pre-authorize the abortion, but she was unable, or at least did not unable to certify to the court that Ms. Cox’s state of health presents the risks required by the exception. Texas’ overlapping bans allow abortions only when a pregnancy seriously threatens the woman’s health or life.
“These laws reflect the policy choice that the legislature made, and the courts must respect that choice,” the court wrote.
The ruling, which applied only to Ms. Cox’s current pregnancy, suggested that the court would not be open to interpretations of the law that would extend the medical exception in Texas beyond the most serious cases. The fact that Ms. Cox decided to leave the state rather than wait for a decision highlighted the difficulty of asking the court for permission to have an abortion while pregnant.
Ms. Cox sought approval from the lower court after learning that her fetus was suffering from a life-threatening illness and after several visits to the emergency room. Her lawyers and doctor argued that carrying the pregnancy to term endangered her health and future ability to have children.
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. But unsure when the decision would be made, her lawyers said Monday that she had decided to seek an abortion in a state where it is legal.
“Kate desperately wanted to be able to get care where she lives and recover at home surrounded by family,” Nancy Northup, executive director of the Center for Reproductive Rights, which represented Ms. Cox in her case, said in a statement. “Even if Kate had the option to leave the state, most people don’t, and a situation like this could be a death sentence.”
This case is believed to be the first to seek a court-ordered exception since the United States Supreme Court overturned Roe v. Wade last year, paving the way for Republican-controlled states like Texas to enact near-total abortion bans.
This marked a new chapter in the legal history of abortion in the United States, with pregnant women now going to court to ask their doctors for permission to do what they deem medically necessary without fear of serious criminal or civil sanctions. Legal challenges have emerged in several states where doctors have said the bans prevent abortions, even in cases of serious pregnancy complications.
Last week, a Kentucky woman who was eight weeks pregnant filed a lawsuit seeking to overturn that state’s bans.
Ms. Cox’s case, filed last week, was unusual because it was filed during her pregnancy. At the same time that the Texas Supreme Court was considering her case, it was also considering a suit brought by women and their doctors, represented by the Center for Reproductive Rights, seeking to clarify the limits of medical exceptions to Texas’ abortion bans .
This case, Zurawski v. Texas, involves women who said they were forced to continue their pregnancies, despite dangers to their health, because the state’s vagueness of exemptions made doctors extremely cautious about when a health problem was serious enough to allow an abortion. Ms. Cox’s husband and Dr. Karsan are also represented by the Center for Reproductive Rights.
In its ruling Monday, the Texas Supreme Court suggested a general standard that could apply beyond Ms. Cox’s case.
“The exception does not require a physician in a genuine emergency to wait to consult other physicians who may not be available,” the court wrote. “The exception relies on a physician acting within the zone of reasonable medical judgment, which physicians do every day.”
Through September, Texas recorded just 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 took effect, there were more than 50,000.
A spokeswoman for Texas Right to Life, an anti-abortion group, lamented that, despite the court’s ruling, Ms. Cox could obtain an abortion elsewhere. “We mourn the decision to take Baby Cox’s life rather than give her every chance at life,” spokeswoman Kimberlyn Schwartz said in a statement.
Lawyers from Mr. Paxton’s office argued in their appeal that Ms. Cox did not meet the criteria for a medical exception to the state’s overlapping abortion bans, which are among the strictest in the country, and said she was seeking an “elective abortion.”
Ms Cox’s fetus was diagnosed with Down syndrome, a genetic abnormality which in rare cases leads to miscarriage, stillbirth or infant death within the first year after birth. Dr. Karsan, who is also a plaintiff in Zurawski’s case, determined that abortion would be the safest option for the mother’s health.
Ms. Cox, a mother of two young children who said she would like to start a large family, visited the emergency room four times during her pregnancy for symptoms such as discharge and cramping.
Lower court Judge Maya Guerra Gamble, a Democrat on the Travis County District Court, agreed in her ruling that Ms. Cox could have an abortion under Texas law.
Dr. Karsan “believes in good faith, exercising his 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’s bans on Dr. Karsan, Ms. Cox’s husband, and any medical staff who helped to an abortion in her case.
Mr. Paxton objected, first sending letters to three Houston hospitals where Dr. Karsan can admit patients, saying the judge’s order was only temporary and would not protect them from civil penalties or criminal charges if they authorized Ms. Cox’s proceedings. Shortly afterward, Mr. Paxton appealed the lower court’s order to the Texas Supreme Court, all nine members of which are Republicans.
In their brief, the state’s lawyers argued that allowing abortions to be performed based on a “good faith” determination by a doctor that they are medically necessary “opens the floodgates to pregnant mothers who have an abortion” through a consenting doctor.
Under Texas law, a doctor convicted of performing an illegal abortion can be sentenced to up to 99 years in prison and fined at least $100,000.
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.
The court agreed with the state, finding that the “good faith” standard was erroneously applied by the lower court and that the correct standard, under the law, is “reasonable medical judgment.” He asked the Texas Medical Board “to provide guidance in response to any confusion that currently prevails.”
“Judges do not have the power to extend the legal exception to include abortions which do not fall within its text under the guise of interpreting it,” ruled the Supreme Court.
“Our decision today does not block a life-saving abortion in this specific case if a physician determines that such an abortion is necessary under the appropriate legal standards, using reasonable medical judgment,” the court added. “If Ms. Cox’s situation is, or has become, one that satisfies the statutory exception, no court order is necessary.”