Kate Cox did not qualify for an abortion in Texas, state Supreme Court says

The Texas Supreme Court in a highly anticipated decision on Monday evening ruled that Kate Cox, a Dallas area mother carrying a fetus with a fatal condition, did not qualify for an abortion under state laws based on her doctor's "good faith belief" that she needs the procedure.

"The statute requires that judgment be a 'reasonable medical' judgment, and Dr. Karsan has not asserted that her 'good faith belief' about Ms. Cox’s condition meets that standard," the opinion reads.

In a near-total abortion ban, Texas prohibits abortions beginning at fertilization, with exceptions only for cases in which a pregnant patient risks death or “substantial impairment of major bodily function."

The opinion is the last twist in a six-day legal saga and comes just hours after Cox's attorneys said she had left the state to terminate her pregnancy.

Cox is the first woman to have asked a court to authorize an abortion since before Roe v. Wade, the landmark case that guaranteed a right to an abortion, was decided in 1973.

Granting Texas Attorney General Ken Paxton's appeal, the seven-page Supreme Court opinion tosses a lower court's order that blocked Paxton, the state and the Texas Medical Board from enforcing the state's abortion bans in Cox's case.

The decision hinges primarily on the requirement set out in the state's "trigger law" outlawing abortions that went into effect Aug. 25, 2022, 30 days after the Roe decision was overturned — that doctors exercise "reasonable medical judgment" in determining whether a woman qualifies for a legal exception to an abortion ban.

The ruling has broad ramifications for future interpretation of abortion laws in state, including in the other abortion-related case pending before the high court, Zurawski v. Texas. Justices indicated they were not inclined to broaden the exception, stating doctors must adhere to a standard of "reasonable medical judgment" rather than a "good faith belief" that a patient needs a life-saving abortion.

"These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice," the opinion reads.

How the case unfolded

Cox's attorneys on Dec. 5 requested an emergency hearing in a Travis County District Court to seek permission for an abortion after she had been admitted to emergency rooms three times within a month for symptoms including cramping and fluid leaks. Her doctors advised her that due to her fetus' trisomy 18 diagnosis, the unborn baby had "virtually no chance of surviving." More than 95% of babies with the condition do not make it to birth, according to the Cleveland Clinic.

Cox's doctors also advised her that continuing the pregnancy posed serious risks to her health and fertility, according to the complaint, including increasing her chances of developing gestational hypertension, gestational diabetes, uterine rupture from Caesarean section and post-operative infections.

More:Kate Cox can't get abortion for now, Texas Supreme Court says, halting lower court's OK

Finding that Cox needed an abortion immediately "to preserve her life, health, and fertility," District Judge Maya Guerra Gamble issued a temporary restraining order barring the state, Attorney General Ken Paxton and the Texas Medical Board from prosecuting Cox, her husband, her doctor or her doctor's staff should Cox terminate the pregnancy.

“The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking, and would be a genuine miscarriage of justice,” Gamble said during the Thursday hearing.

Hours after the Travis County District Court issued its order barring the state from enforcing its abortion bans, Paxton issued a letter to hospitals where Karsan, Cox's OB-GYN, held privileges saying the order didn't protect them from potential legal action.

He then brought the case before the Texas Supreme Court by petitioning for a writ of mandamus, an extraordinary measure that would stop Cox from legally terminating her pregnancy in Texas. The high court put a hold on the district court's temporary restraining order late Friday night, essentially blocking the abortion authorization until the justices could review the case's merits.

Paxton and the state argued that Cox did not fall within the state's abortion ban exception because, in the attorney general's consideration, risks to her health were not strictly life-threatening.

"Because the life of an unborn child is at stake, the Court should require a faithful application of Texas statutes prior to determining that an abortion is permitted," Paxton's petition states.

Cox, a mother of two, was 20 weeks and six days pregnant as of Monday. She had been admitted to a fourth emergency room since filing the lawsuit, according to her attorneys' response to Paxton's appeal.

Nancy Northrup, the president of the Center for Reproductive Rights, which is representing Cox in the suit, said Cox had no choice but to leave the state to get the procedure.

Cox "desperately wanted to be able to get care where she lives and recover at home surrounded by family," Northup said. "While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence."

'Medically necessary care'

Less than an hour before Cox was reported to have left the state Monday, the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine had filed a joint emergency amicus curiae brief to the Supreme Court of Texas stating that "Ms. Cox faces a current, emergent threat to her life, health, and future fertility, and to the wellbeing of her family."

The brief also states that Texas' abortion laws and Paxton's threats of enforcement of strict penalties against physicians leave medical personnel unable to provide essential care. The group has filed a brief that makes similar arguments in Zurawski v. Texas.

"Texas clinicians, like Dr. Karsan, must be permitted to provide abortions to pregnant patients, like Ms. Cox, in medically complex cases to protect them from negative health outcomes," the brief states. "Every day that the Texas abortion bans remain in effect, they are preventing the provision of medically necessary care to state residents."