Ken Paxton and the Texas Supreme Court tried to stop Kate Cox from getting an abortion. She left.
Update: After Kate Cox left Texas to receive medical care elsewhere, the Texas Supreme Court effectively ruled against Cox's request for an abortion in Texas.
[Update, Dec. 11, 2:20 p.m.: The Center for Reproductive Rights has informed the Texas Supreme Court that Kate Cox has left the state of Texas to receive needed medical care — the abortion her lawsuit said she needs.
The letter filed at the court by Cox’s lawyers says that they intend to continue pressing her case because her situation is “capable of repetition yet evading review” — a standard courts use to continue hearing case that otherwise would be moot before a decision can be reached.]
[Update, Dec. 11, 10:30 p.m: Hours after Kate Cox’s lawyers informed the Texas Supreme Court that Cox was leaving the state to receive medical care elsewhere, the Texas Supreme Court issued an order directing the trial judge to lift the temporary restraining order that had been issued to enable Cox to get an abortion in Texas. The ruling came out of a request to the state high court from Attorney General Ken Paxton.
In its unsigned, per curiam order, the court asserted that Cox had not established that she met the conditions required under the exceptions to the state’s abortion bans.
Explaining the medical exception, the court reprinted the statute and then described how it applies the exception:
As to Cox’s request, however, the court ruled, “Dr. [Damla] Karsan did not assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.”
This claim is questionable at best, as is reflected in the Cox’s filing at the high court, as well as in the original complaint, which detailed how and why her medical providers believe she meets the exception. As the complaint stated:
NBC News reported that Molly Duane, Cox’s lawyer said in response to the Monday ruling: "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.”
At the same time, the court also appeared to want to avoid more cases like this, stating:
It seems unlikely, however, that a ruling like this — that claims a pregnant person who meets the medical exception doesn’t need a court order to get an abortion while denying a court order allowing an abortion to a woman whose doctor said she met the medical exception — will end horrifying circumstances like what Kate Cox has had to face over the past week.]
Kate Cox, a mother of two, is now 20 weeks pregnant. The pregnancy has had complications, risking her ability to have children in the future, and her fetus has been diagnosed with full trisomy 18, which means that she is almost certain not to have a successful pregnancy.
Cox “needs an abortion,” as her lawyers put it in a court filing, but she lives in Texas.
As of Saturday, despite medical and legal efforts to get Cox the abortion she and her medical providers have decided she needs, the Texas Supreme Court — in an administrative order — has made that medical care impossible, or at least criminal. It also, under Texas’s S.B. 8, could subject her husband to legal consequences.
This is also a story about Texas Attorney General Ken Paxton. For Paxton, the Republican ideologue, this isn’t about Kate Cox or her fetus. This is about the precedent Cox’s case would set, and so he has gone to extremes to stop her from legally obtaining an abortion in Texas — including undermining, if not ignoring, a court order. And he might succeed.
This case — an admittedly unusual one — has developed rapidly over the past five days, when Cox’s lawyers, including the Center for Reproductive Rights, filed a lawsuit on Dec. 5 to get a court order so that Cox’s doctor could perform the abortion without fear of legal reprisal.
“Our contention is that Kate falls within the medical exemption, but her doctors can’t proceed and give her the medical care that she needs unless and until a court agrees. Otherwise, her doctor will risk life in prison, loss of her medical license and hundreds of thousands of dollars in fines,” Molly Duane, Cox’s lead counsel, told The New York Times about the lawsuit.
According to the complaint, “Ms. Cox understands that a dilation and evacuation ("D&E") abortion is the safest option for her health and her best medical option given that she wants to have more children in the future. Yet because of Texas’s abortion bans, Ms. Cox's physicians have informed her that their ‘hands are tied’ and she will have to wait until her baby dies inside her or carry the pregnancy to term, at which point she will be forced to have a third C-section, only to watch her baby suffer until death.”
Paxton quickly weighed in, opposing Cox’s request, arguing that the lawsuit is “a transparent end-run” around ongoing litigation at the Texas Supreme Court over the state’s exceptions to its three anti-abortion laws (a trigger ban, a pre-Roe anti-abortion law, and the S.B. 8 “vigilante enforcement” law). He also noted that the temporary restraining order (TRO) would definitely resolve the case, given that she would get an abortion.
On Dec. 7, Judge Maya Guerra Gamble, in Travis County, nonetheless issued the TRO following a hearing. It was a very limited ruling, applying only to Cox and her current pregnancy — which is all that this lawsuit has been about.
But, because of the precedent that such an order could create, Paxton fought back on multiple fronts that day. First, he sent out a letter to hospitals, in essence, saying that the TRO would not protect them from prosecution. Specifically, in part, he noted, that “the TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.” He also, in the end of the letter, relitigated the question of whether Cox qualifies for the medical exceptions under Texas’s abortion bans, asserting that she does not.
He also went to the Texas Supreme Court, seeking a writ of mandamus — literally referred to as an “extraordinary” action — from the state’s high court ordering the Travis County judge to vacate her TRO.
Paxton also filed an emergency request for a stay of the TRO. “This TRO ruling at issue is the first of its kind. But it won’t be the last,” Paxton wrote, making his purpose clear.
The stay request was filed at 11:45 p.m. Dec. 7. It concludes, “Because of the nature of this suit, Relators request relief as soon as possible, but no later than December 8, 2023.”
On Friday, Dec. 8, the Texas Supreme Court ordered a response from Cox’s lawyers.
They filed that response hours later, laying out the striking actions from Paxton: “The State’s mandamus petition is stunning in its disregard for Ms. Cox’s life, fertility, and the rule of law.”
“Without regard to the merits, the Court administratively stays the district court’s December 7, 2023 order,” the Texas Supreme Court ordered late Friday night.
The court noted, however, that both the mandamus and stay requests remain pending, so there could be further action in the case in the coming days.
In a statement, though, Duane, Cox’s lawyer, made clear that time is of the essence.
“We are talking about urgent medical care,” she said in the statement. “Kate is already 20 weeks pregnant. This is why people should not need to beg for healthcare in a court of law.”
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