Texas Supreme Court Overturns Ruling That Would Have Allowed Kate Cox to Terminate Nonviable Pregnancy

The Texas Supreme Court, made up of nine Republican judges, halted an order allowing Kate Cox to get an abortion to save her life—forcing her to travel out of the state for the care.

This story was originally published by The Texas Tribune. Updated Monday, Dec. 11, at 10:56 a.m. PT.

Ms. editor’s note: One of the members of the Texas Supreme Court, Justice John Devine, has been arrested at least 37 times while protesting and blockading abortion clinics. Devine described his convictions as being “forged in the crucibles” of the anti-abortion movement. His activism, he said, does not have any bearing on his ability to impartially interpret the law. His wife Nubia also publicly chose to continue a high-risk pregnancy; before birth, doctors told the couple that continuing the pregnancy would likely result in the deaths of both mother and child. The child survived one hour.

After a week of legal whiplash and threats of prosecution from Texas Attorney General Ken Paxton, Kate Cox has been forced to leave Texas to get healthcare in another state, the Center for Reproductive Rights (CRR) announced on Monday. Cox’s fetus has a fatal condition and continuing the pregnancy threatens her future fertility. “Her health is on the line,” said Nancy Northup, president and CEO at CRR. “She’s been in and out of the emergency room and she couldn’t wait any longer.”

Paxton had petitioned the state Supreme Court just before midnight Thursday to intervene and stop a Dallas woman from having an abortion—after a Travis County district judge granted a temporary restraining order allowing Cox, 31, to terminate her nonviable pregnancy. Paxton also sent a letter to three hospitals, threatening legal action if they allowed the abortion to be performed at their facility. On Friday evening, the state Supreme Court temporarily halted the lower court’s order but did not rule on the merits of the case. The court said it would rule on the temporary restraining order, but did not specify when.

“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,” said Cox’s lawyer, Molly Duane, on Friday.

This is the first time an actively pregnant adult woman has gone to court to get an abortion since before Roe v. Wade was decided in 1973. A similar case was filed in Kentucky on Friday.

In the petition, Paxton asked the Texas Supreme Court to rule quickly, saying that “each hour [the temporary restraining order] remains in place is an hour that Plaintiffs believe themselves free to perform and procure an elective abortion.” “Nothing can restore the unborn child’s life that will be lost as a result,” the filing said. “Post hoc enforcement is no substitute, so time is of the essence.”

On Monday morning, two major national medical associations—the American College of Obstetricians and Gynecologists (ACOG) and the Society for Maternal-Fetal Medicine (SMFM)—filed an emergency brief urging the Texas Supreme Court to permit the procedure, arguing that Cox faces a current, emergent threat to her life, health and future fertility if she is unable to obtain abortion care. “By interfering in Ms. Cox’s medical case, the attorney general has put her in clear and emergent danger,” said Skye Perryman, legal counsel on the brief, “and has sent a message to the state’s physicians that they will be punished if they care for those in need.”

Center for Reproductive Rights attorney Molly Duane alongside other plaintiffs, speaks at a press conference during Zurawski v. Texas, a lawsuit filed by the Center for Reproductive Rights on behalf of women denied abortions despite serious pregnancy complications, outside the Texas Supreme Court in Austin, Texas, on November 28, 2023. (Suzanne Cordeiro / AFP via Getty Images)

The Texas Supreme Court is currently also considering a similar case, Zurawski v. Texas, in which 20 women claim they were denied medically necessary abortions for their complicated pregnancies due to the state’s new laws. The state has argued those women do not have standing to sue because, unlike Cox, they are not currently seeking abortions.

In the initial lawsuit, Cox’s attorneys with the Center for Reproductive Rights argued she cannot wait the weeks or months it might take the Texas Supreme Court to rule.

Now, the high court must consider many of the same arguments as those in Zurawski v. Texas, but on a much tighter timeline.

The central question is whether a lethal fetal anomaly qualifies a pregnant patient for an abortion under the narrow medical exception to the state’s near-total abortion ban. Cox’s lawyers argue that continuing this nonviable pregnancy poses a threat to her life and future fertility, thus necessitating an abortion.

Travis County District Judge Maya Guerra Gamble agreed, saying it would be a “miscarriage of justice” to force Cox to continue the pregnancy. The state disagreed, telling the Supreme Court that Guerra Gamble’s ruling “opens the floodgates to pregnant mothers procuring an abortion” beyond the scope of the medical exception.

Separately, Duane sent a letter to Guerra Gamble, asking her to bring Paxton in for a hearing on his letter threatening legal action against hospitals that allow Cox to have an abortion.

“The repeated misrepresentations of the Court’s [order], coupled with explicit threats of criminal and civil enforcement and penalties, serve only to cow the hospitals from providing Ms. Cox with the healthcare that she desperately needs,” Duane wrote. “Plaintiffs respectfully request the Court hold a hearing so Defendant Paxton can explain to Your Honor why he should not be sanctioned.”

Texas Congresswoman Veronica Escobar, on behalf of President Joe Biden’s re-election campaign, condemned Paxton’s comments Friday.

“A Texas woman was just forced to beg for life-saving healthcare in court and now any doctor who provides her the care she urgently needs is being threatened with punishment including a lifetime prison sentence,” Escobar said in a statement. “This story is shocking, it’s horrifying, and it’s heartbreaking.”

William Melhado contributed to this story.

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Eleanor Klibanoff is the women's health reporter at The Texas Tribune. She was previously with the Kentucky Center for Investigative Reporting, where she covered sexual assault, domestic violence and policing, among other things. She has worked at public radio stations in Kentucky, Pennsylvania and Missouri, as well as NPR, and her work has aired on All Things Considered, Morning Edition and Here & Now.