Texas Supreme Court Halts Lower Court's Order that Pregnant Woman Can Abort Baby

AP Photo/Steve Helber

A woman who is 20 weeks pregnant filed what is believed to be the first lawsuit of its kind since the Supreme Court overturned Roe v Wade last year. Kate Cox is a 31-year-old mother of two from the Dallas area.


On Thursday Travis County District Judge Maya Guerra Gamble issued a temporary restraining order. The judge ruled that Cox could abort her baby. This was believed to be the first time in at least 50 years that a judge intervened to allow a pregnant adult woman to abort her baby.

Cox wasn’t seeking an abortion because the baby was unwanted but because her doctor said the pregnancy was nonviable and a risk to her health. The pregnancy is also a risk to her future fertility. Her lawsuit was a historic one that was filed on Tuesday.

Abortion law in Texas is among the most stringent of state laws. Essentially, abortion is extremely rare and not often legally performed in Texas.

Existing laws prohibit all abortions after six weeks of pregnancy except for medical emergencies, and the passed heartbeat bill legislation prohibits providers from performing an abortion after a fatal heartbeat is detected. The court’s ruling on August 4, 2023, provides a good faith exception for doctors who perform an abortion under certain circumstances. The State will almost certainly appeal this decision.

Judge Gamble ruled that Cox could abort her baby because her health was at risk. Plus, the danger posed to her ability to have a baby in the future.

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


Very quickly, Texas Attorney General Ken Paxton jumped into action. At the time, it was noted that Paxton would take it to a higher court.

Texas Attorney General Ken Paxton responded Thursday afternoon in a letter addressed to three hospitals — Houston Methodist Hospital, The Women’s Hospital of Texas in Houston, and Texans Children’s Hospital in Houston — saying the temporary order would “not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”

The Texas Office of the Attorney General, which challenged Cox’s claims at Thursday’s hearing, may try to ask a higher court to intervene but had not as of Thursday afternoon.

And, he did. Paxton took the judge’s decision to the Texas Supreme Court. The order from the Texas district court in Austin is on hold.

Late on Friday night the state’s court said that ‘without regard to the merits’ of the case it is taking an administrative stay before ruling.

The decision came in response to an appeal from Attorney General Ken Paxton of Texas, who opposed the woman’s abortion.

The stay means an earlier order from a judge in Travis County district court permitting the abortion is now on hold.

That order allowed the woman, Kate Cox, to obtain an abortion and protected her doctor from civil or criminal liability under Texas’s strict overlapping abortion bans.


Cox is being represented by the Center for Reproductive Rights. ‘We fear that justice delayed will be justice denied,’ said Molly Duane, a senior staff attorney.

She has taken four trips to the emergency room with the pregnancy.

The 31-year-old told the state court in Texas earlier this month that she had received emergency medical treatment four times since becoming pregnant with a baby that doctors expect to be stillborn.

The diagnosis is grim. Cox feels caught between doing what is best for her health and continuing to expand her family in the future, and Texas state law on abortion.

At 20 weeks pregnant, Cox learned her fetus had full trisomy 18, a chromosomal abnormality that is almost always fatal before birth or soon after. Before the overturn of Roe v. Wade, Texas law allowed doctors to terminate pregnancies due to lethal fetal anomalies at any point during the pregnancy. But now, Cox’s doctors said their hands were tied by Texas’ abortion laws, which prohibit abortion except to save the life of the pregnant patient.

A week after she first received the diagnosis, Cox and her husband, represented by the Center for Reproductive Rights, filed a lawsuit asking a judge to grant a temporary restraining order, allowing them to terminate this pregnancy.

“It is not a matter of if I will have to say goodbye to my baby, but when,” Cox said in a statement. “I’m trying to do what is best for my baby and myself, but the state of Texas is making us both suffer.”


The Office of the Attorney General claimed that Cox “does not meet all of the elements” for a medical exemption to abortion. It also argued that Cox resides in Florida, while her attorney argued that Cox has not left the Dallas area in months.

At the hearing, Jonathan Stone, a lawyer for the Texas Office of the Attorney General, argued that Cox “does not meet all of the elements” to qualify for a medical exemption from the abortion bans, at least based on what was filed by her lawyers. Granting a temporary restraining order would require “changing the medical exemption in Texas and then saying that the plaintiffs meet this changed newly rewritten standard,” Stone said.

Stone also argued that the temporary restraining order would have permanent consequences, in the form of an abortion.

“The harm to Ms. Cox’s life, health, and fertility are very much also permanent and cannot be undone,” countered Molly Duane, senior counsel for the Center for Reproductive Rights. Duane said Cox’s condition was “rapidly deteriorating every day,” and since the lawsuit was filed on Tuesday, she had already made a trip to the emergency room due to medical complications from her pregnancy. She’s gone to the ER four times in the last month, Duane said.

In a filing late last night, the state tried to argue that Cox was actually “currently residing in sunny Saint Lucie County, Florida,” where, “ironically and particularly relevant to this cause of action,” she would qualify for an abortion under that state’s medical exemptions. Duane told the judge Cox had not left Dallas in months: she had just used an online notary service, based in Florida, to sign the legal filings.


It will be interesting to see what happens next. This case will be seen as a first crack at easing strict state abortion laws. We know that abortion played a big role in how independents and women voters voted in 2022. Democrats plan to use the issue again in the 2024 presidential election.

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