Last week, a Texas woman seeking an abortion on the medical advice of her doctor sued the state for the right to have the abortion. In a first of its kind challenge since the Supreme Court overturned Roe v. Wade in 2022, the lawsuit brings to the fore thorny legal challenges emerging across states that have enacted “trigger bans” against abortions. Let’s get into the details.
Background
Katie Cox is a 31-year-old pregnant woman and mother of two young children residing with her family in Texas. Cox and her husband Justin hoped to have a large family one day and were excitedly anticipating the arrival of their third child. At the time of the filing Cox was 20 weeks pregnant, and last month, following several trips to the hospital due to pain attributed to her pregnancy, her doctor diagnosed her unborn baby with trisomy 18 –a condition where the foetus has an extra chromosome, making it “likely the baby would die in utero or shortly after birth.”
She was advised that delivering the baby at full term by cesarean section would carry a risk of uterine rupture, which would endanger any future pregnancies; further, carrying the baby to term would threaten her life and future fertility.
In 2021, Texas banned abortions performed “after fetal cardiac activity is detected, usually around six weeks of pregnancy.” Then, once the US Supreme Court overturned federal abortion rights in the summer of 2022, a trigger law came into effect in Texas essentially banning abortions, “other than those [required] when the mother is at risk of death or [where the pregnancy] poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” Cox’s lawsuit is one of the first attempts in the United States for a court-ordered abortion since the Supreme Court overturned Roe v. Wade.
The Lawsuit and Initial Court Ruling
The lawsuit was filed against the state of Texas, the Texas Medical Board, and the Texas attorney general, Ken Paxton. Plaintiff’s attorneys sought a temporary restraining order and permanent injunction against the Texas abortion ban, arguing it causes irreparable injury to the plaintiffs. Plaintiff’s attorneys cite a current Texas Supreme Court Case, Zurawski v. State of Texas, (currently being litigated) seeking clarification on Texas abortion laws and the exceptions allowing doctors to provide an abortion to a patient when either the fetus or the mother face a serious health risk or a fatal fetal diagnosis.
The presiding judge, Honorable Maya Guerra Gamble, of Travis County district court, agreed with the plaintiffs and ruled that Cox could seek an abortion under Texas law. Judge Gamble issued a temporary restraining order against AG Paxton and others from enforcing the state bans against Dr. Karsan and Justin Cox or any medical staff member who assisted with the abortion in Cox’s case.
The Attorney General Appealed the Lower Courts Decision to the Texas Supreme Court
Paxton appealed the lower court order to the Texas Supreme Court and sent letters to three Houston hospitals “where Dr. Karsan can admit patients, saying that the judge’s order was only temporary and would not protect them from civil or criminal penalties if they allowed Ms. Cox’s procedure.”
In their appeal, Attorneys for the state argued that allowing abortions to be performed based on a “good faith” determination by a doctor that the procedure is medically necessary “opens the floodgates to pregnant mothers procuring an abortion through a willing doctor.” Paxton’s office “argued that the standard for determining what constitutes a serious medical threat was clear: a doctor’s ‘reasonable medical judgment’ that a pregnancy posted such a risk” to the mother’s health. Cox did not meet the standard’s threshold, according to Paxton.
Before the Texas Supreme Court ruled, however, Cox reportedly left the state of Texas to seek an abortion in another state where the procedure is legal.
The Texas Supreme Court handed down its ruling on Friday, December 8, temporarily blocking Cox from receiving an abortion in the state. Then, on Monday the 11th, “the court issued a ruling and opinion, siding with Paxton and reversing the lower court’s ruling. The Court found that the “good faith” standard the lower court applied was in error and that the correct standard under the law, is a “reasonable medical judgment.” The Court also called on the Texas Medical Board to “provide more guidance on the state’s medical emergency exception at the heart of Cox’s case.”
Implications Moving Forward
The overturning of Roe v. Wade has meant courts across the nation face a legal conundrum when it comes to abortion laws. This particular lawsuit highlights the complexities concerning this highly contested legal and political issue: should doctors be allowed to use their best medical judgment? Or, where doctors perform abortions, according to their reasonable medical judgment, may they be held criminally liable if their judgment is wrong?
This dilemma has had a chilling effect in states that have enacted strict abortion bans, making doctors weary of performing the procedure –even when life is at risk. The Cox complaint reveals how doctors feel their “hands are tied” until the courts and legislature provide clarity on exceptions and whether and how to shield doctors from liability. For now, hope for definitive answers rests on how the Texas Supreme Court rules in the Zurawski case.
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Sources:
https://www.cnn.com/2023/12/11/us/kate-cox-abortion-law-texas-case/index.html
https://www.theguardian.com/us-news/2023/dec/11/texas-abortion-kate-cox-lawsuit
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