The Texas Supreme Court on Monday vacated a temporary restraining order that would have allowed a pregnant woman to access an emergency abortion in Texas.
Kate Cox, the lead plaintiff in Cox v. Texas, initially received a temporary restraining order from a Travis County district judge on Dec. 7 allowing her to have the procedure. Cox’s fetus was diagnosed with trisomy 18, a condition that is almost always fatal. She was warned by doctors that continuing the pregnancy to delivery could have a severe impact on her health and ability to carry future pregnancies.
Texas Attorney General Ken Paxton petitioned the state’s Supreme Court to reverse Judge Maya Guerra Gamble’s order later that night, saying she had abused her discretion by issuing it. Paxton also penned a letter threatening liability to any hospital or doctor who facilitates an abortion.
The Supreme Court initially temporarily halted the order late Friday night, but indicated that it would consider the matter before issuing a final ruling. The decision to vacate Judge Gamble's temporary restraining order came late Monday afternoon when the Supreme Court said the lower court had overstepped.
"The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient," the Supreme Court said in its opinion.
The exception to Texas' abortion bans allows an abortion only when a doctor determines that a pregnant patient has a life-threatening physical condition that "places the woman in danger of death or a serious risk of substantial impairment of a major bodily function.”
The Supreme Court opinion asserted that Dr. Damla Karsan, a co-plaintiff in Cox v. Texas who sought approval to perform Cox's abortion, had failed to "attest to the court that Ms. Cox’s condition poses the risks the exception requires."
Earlier on Monday, Cox's lawyers at the Center for Reproductive Rights released a statement saying Cox had left Texas to get care in another state rather than await the Supreme Court's final decision.
“While we still hope that the Court ultimately rejects the state’s request and does so quickly, in this case we fear that justice delayed will be justice denied,” Cox's attorney Molly Duane said in a statement on Friday. “We are talking about urgent medical care. Kate is already 20 weeks pregnant.”
On Monday, Duane filed a notice with the Texas Supreme Court saying that Cox had left Texas to receive medical care. However, before the Supreme Court's decision to vacate, she said they intended to move forward with Cox’s case as the issues included in it are “capable of repetition.”
“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO at the Center for Reproductive Rights, in a statement. “Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer. This is why judges and politicians should not be making healthcare decisions for pregnant people—they are not doctors.”
Despite the Supreme Court's assertion that a physician in Texas is equipped to perform an abortion in a medical emergency, doctors including Karsan have said that the exception to Texas' abortion laws is vague and leaves physicians open to liability. Another case brought by the Center for Reproductive Rights that seeks to clarify the exception, Zurawski v. Texas, is still pending before the Supreme Court.
In a statement Tuesday following the Supreme Court's decision, Duane said Cox's case only emphasizes the need for more clarity.
"If Kate can’t get an abortion in Texas, who can? Kate’s case is proof that exceptions don’t work, and it’s dangerous to be pregnant in any state with an abortion ban,” Duane said. “We are still awaiting a decision in Zurawski v. Texas, but in the meantime, doctors still don’t know what the exception means, and the Texas Medical Board remains silent. If the highest court in Texas can’t figure out what this law means, I’m not sure how a doctor could."
