Editor's note: This story was updated to reflect that Texas Attorney General Ken Paxton's office has asked the Texas Supreme Court to reverse the lower court's order.
A Texas judge granted a temporary restraining order Thursday allowing a pregnant woman to get an abortion.
The Center for Reproductive Rights made the initial filing in Cox v. Texas Tuesday on behalf of Kate Cox, a pregnant woman from the Dallas-Fort Worth area. Cox’s legal team believes it is the first case in which a woman directly petitioned the state to allow an abortion since the 1973 passage of Roe v. Wade and the first of its kind since Texas banned the procedure.
According to the filing, Cox's fetus was diagnosed with trisomy 18, a condition that is usually fatal. Based on ultrasounds and testing, doctors said her pregnancy was likely to end in miscarriage or stillbirth, or the baby surviving a few days at most. Doctors also said delivery would be dangerous for Cox, and her ability to carry future pregnancies would be jeopardized.
Under Texas’ three overlapping abortion bans, an emergency medical abortion is permitted only in cases where there's a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” or that “places the woman in danger of death or a serious risk of substantial impairment of a major bodily function.”
Cox’s suit sought a TRO allowing for an emergency abortion under the exception. It argued doctors are afraid to risk liability and perform the procedure because the exception is so ambiguous. It also sought to protect Cox’s husband from liability under Senate Bill 8, a law that allows private citizens to report individuals who help someone get an abortion.
The lawsuit specifically asked for permission to be granted to Dr. Damla Karsan, an additional plaintiff, to perform the abortion. Karsan is also a plaintiff in Zurawski v. Texas, which is currently before the Texas Supreme Court and seeks to clarify the exception to Texas' abortion law as it applies in emergency situations.
In an emergency hearing that lasted about a half hour Thursday, Judge Maya Guerra Gamble of Travis County’s 459th District Court heard arguments from Cox’s lawyers and from state attorneys. Gamble was unmoved by state attorney Johnathan Stone’s arguments that Cox’s condition did not meet the standard for an emergency medical abortion.
"The idea that Miss 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.
By late Thursday night, Texas Attorney General Ken Paxton's office had submitted to the Texas Supreme Court a writ of mandamus, or a petition to reverse the lower court's order. The office argued in the filing that Cox did not meet the standards for an emergency medical abortion and that Judge Gamble had abused her discretion by issuing the TRO.
"Because Plaintiffs evidently believe (incorrectly) that the TRO immunizes them from civil or criminal enforcement actions ... each hour it remains in place is an hour that Plaintiffs believe themselves free to perform and procure an elective abortion," Paxton's office said in the filing.
Cox's lawyers urged the court to deny Paxton's request.
"Plaintiffs agree that urgent action from this Court is necessary—specifically, to remind the Attorney General that he does not exist outside the systems of laws of which he is an officer, and that he must follow court orders just like the citizens he purports to serve," Cox's lawyers said in its response to the court.
If the Supreme Court grants Paxton's request, Cox would be prevented from receiving a legal abortion — if she has not already had the procedure. Her lawyers declined to share her plans Thursday due to safety concerns.
Before petitioning the Supreme Court, Paxton's office had released a letter addressed to three Houston hospitals where Dr. Karsan holds privileges.
"The Temporary Restraining Order granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws," Paxton wrote.
Marc Hearron, senior counsel at the Center for Reproductive Rights, called Paxton's response fear-mongering.
"Rather than respect the judiciary, [Paxton] is misrepresenting the court’s order," Hearron said. "He is trying to bulldoze the legal system to make sure Kate and pregnant women like her continue to suffer.”
In a call with reporters following Thursday's hearing, lawyers at the Center for Reproductive Rights celebrated Gamble's decision, but said it did not set a practical precedent for Texans who may not have time to go through legal proceedings before seeking an abortion if health is at stake.
"We are hopeful that [this] case and/or the Zurawski case will provide the actual clarification that physicians need to be able to practice medicine in Texas," Molly Duane, senior staff attorney at the Center for Reproductive Rights, said.
