Dallas area woman whose life and future fertility are at risk can get abortion, judge rules

A North Texas woman whose high risk pregnancy could threaten her life and future fertility is allowed to get an abortion following a state district judge’s ruling on Thursday.

But despite the order, Texas Attorney General Ken Paxton is warning of possible repercussions if the procedure is preformed.

Kate Cox, who lives in the Dallas-Fort Worth area and is 20 weeks pregnant, has had a complicated pregnancy that has led to four emergency room visits the past month for symptoms such as severe cramps, leaking fluid and elevated vital signs, according to Molly Duane of the Center for Reproductive Rights, who argued Thursday morning before Judge Guerra Gamble of Travis County.

Cox and her husband Justin have two children and desperately want more, but Cox’s pregnancy has been diagnosed with full trisomy 18, a disorder in which babies have three copies of chromosome 18 instead of two. She has been told by her doctors that the baby will be stillborn or live for only minutes, hours or days, Duane told the court, later adding that she believes Cox falls within the medical exemptions to Texas abortion laws.

“Many of Ms. Cox’s health risks during this pregnancy will put her life in danger if left untreated, and carrying this pregnancy to term will significantly increase the risks to her future fertility, meaning that she and her husband may not be able to have more children in the future,” Duane said.

The judge sided with Cox and her legal team, issuing a temporary retraining order that allows Cox to access an abortion in Texas.

“The idea that Ms. Cox wants desperately to be a parent and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” Gamble said.

Duane in a Thursday call with reporters declined to say when and where Cox is getting abortion care, citing the safety of Cox, her family and her physicians.

“I will just say that we are working with her to figure out the fastest way to get her abortion care,” Duane said.

The lawsuit was filed Tuesday against the state of Texas, Texas Attorney General Ken Paxton, the Texas Medical Board and the board’s executive director Stephen Brint Carlton.

Texas’ laws restricting abortion access include a ban on abortions after cardiac activity is detected in a fetus and a so called “trigger” law that went into effect soon after Roe v. Wade was overturned by the U.S. Supreme Court.

Paxton responded to the ruling in a letter to three Houston hospitals, where he said one of Cox’s doctors, Dr. Damla Karsan, holds privileges. Karsan, an OBG-YN, works for Comprehensive Women’s Healthcare in Houston.

In the letter, Paxton said the order signed by an “activist” judge “will not insulate you, or anyone else, from civil and criminal liability for violating Texas’ abortion law.” Paxton also asserts that the allegations in the lawsuit and the judge’s order do not establish that Cox qualifies for a medical exemption under Texas’ abortion law.

“Fearmongering has been Ken Paxton’s main tactic in enforcing these abortion bans,” said Marc Hearron, senior counsel at Center for Reproductive Rights in a statement. “Rather than respect the judiciary, he is misrepresenting the court’s order. He attacks the judge who rules against him as an ‘activist judge’. He is trying to bulldoze the legal system to make sure Kate and pregnant women like her continue to suffer.”

Attorneys for Cox argued in a court document that exemptions to the state’s abortion laws to preserve the parent’s life and health are inconsistent and use non-medical terminology, creating confusion among medical professionals about the exception’s scope.

In Cox’s case, an abortion is the best medical option because she wants to have more children in the future, but because of the state’s abortion bans, her doctors have said their “hands are tied,” the document reads.

“It is not a matter of if I will have to say goodbye to my baby, but when,” Cox said in a statement shared by the Center for Reproductive Rights on Tuesday. “I’m trying to do what is best for my baby and myself, but the state of Texas is making us both suffer. I do not want to continue the pain and suffering that has plagued this pregnancy. I do not want to put my body through the risks of continuing this pregnancy. I do not want my baby to arrive in this world only to watch her suffer. I need to end my pregnancy now so that I have the best chance for my health and a future pregnancy.”

The state, in a court document responding to Cox’s attorneys, argued Cox doesn’t face imminent injury, and that the possible injuries are hypothetical.

Cox has not alleged she “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced” as required under Texas law, the document reads.

An attorney for the state argued that Karsan should get a second opinion from a colleague. Were they to agree that Cox qualifies for the medical exemption, Thursday’s hearing would be moot and the abortion could be performed, said Johnathan Stone from the Texas Attorney General’s Office. Duane countered that the temporary restraining order would give everyone at Karsan’s hospital the sufficient comfort that they would not be prosecuted for performing Cox’s abortion.

An evidentiary hearing should be held in the case, Stone said.

“The abortion once performed is permanent,” he said. “It can’t be undone.”

Stone also argued that the order, if granted as proposed by Cox’s legal team, would effectively change the standard for a medical exemption from the state’s abortion law from a an objective standard — a reasonable medical judgment — to a subjective standard — a good faith belief.

Duane argued that the medical standard for when someone can access an abortion in an medical emergency is a live issue, playing out in a different case before the Texas Supreme Court in which Duane is also an attorney. The case involves 20 Texas women, including a Fort Worth native, who are suing the state over its abortion laws after being denied abortions. Karsan is also a plaintiff in the case, Zurawski v. State of Texas.

“The order entered today only applies to Ms. Cox’s current pregnancy, but we are hopeful that this case and the Zurawski case will lead to more people being able to access the necessary abortion care that they need,” Duane said.

This is a developing story and will be updated.