Kate Cox 'forced to leave Texas' to obtain abortion after challenging state's ban

Kate Cox, a Dallas-area woman who last week became the first person to ask a court to authorize an emergency abortion in more than five decades, has "been forced to leave Texas," which has a near-total ban on the procedure, to terminate her pregnancy, her attorney said Monday.

Cox's departure comes three days after the Texas Supreme Court put on hold a lower court's temporary restraining order blocking the state from enforcing its abortion bans and allowing Cox to terminate her pregnancy after her unborn child was diagnosed with trisomy 18, a fatal fetal condition.

“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president of the Center for Reproductive Rights, which is representing Cox. “She’s been in and out of the emergency room, and she couldn’t wait any longer. ... Kate's case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work.” 

After the U.S. Supreme Court in 2022 overturned Roe v. Wade, the landmark case that guaranteed a right to an abortion, Texas instituted a near-total abortion ban, with exceptions only for cases in which a pregnant patient risks death or “substantial impairment of major bodily function."

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" and continuing the pregnancy presented serious threats to her life and fertility, according to the legal filings. More than 95% of babies with the condition do not make it to birth, according to the Cleveland Clinic.

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 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 his 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.

The Supreme Court said Friday night that it expected to review Cox's case, but as of Monday it had not issued a ruling.

Northrup 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."

What's next in Kate Cox's case?

Should Cox obtain the abortion out of state, the case before the Supreme Court is probably moot, Southern Methodist University law professor Seema Mohapatra told the American-Statesman.

"There is no longer a legal issue for the Texas courts to consider related to whether (Cox) can get an abortion in Texas," said Mohapatra, the MD Anderson Foundation endowed professor in health law.

The Texas Supreme Court in a separate case — Zurawski v. Texas, which it heard Nov. 28 — is weighing the broader medical exceptions raised by Cox.

The Center for Reproductive Rights filed the suit in March on behalf of 20 women who were denied abortions amid severe pregnancy complications, including several women whose babies, like Cox's, were diagnosed with lethal fetal conditions. Dr. Damla Karsan, Cox's OB-GYN, is also a plaintiff in that case.

That case is stayed pending the court's decision, which could take until the end of June.

'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."

This article originally appeared on Austin American-Statesman: Kate Cox leaves Texas to obtain abortion after challenging state's ban