Dramatic Texas case underscores minefields for courts on abortion

Kate Cox, the woman at the center of a dramatic court battle, has fled Texas amid a case her allies say underscores the impracticality of having courts make determinations about a woman’s rights to get an abortion.

“We are talking about urgent medical care. Kate is already 20 weeks pregnant,” Molly Duane, senior staff attorney at the Center for Reproductive Rights, said Friday in a statement before Cox left Texas.

“This is why people should not need to beg for health care in a court of law,” added Duane, whose organization filed a lawsuit on Cox’s behalf to allow her to get an abortion in the state despite the near-total ban it implemented after the Supreme Court overturned Roe v. Wade.

On Saturday, the Texas state Supreme Court ruled that Cox could not have an abortion — a procedure that her doctors said was necessary to save her uterus and potentially her life.

That ruling was temporary — a judgment that left the status quo in place while the court rules on a broader legal challenge to state abortion laws.

But Duane said Friday that “in this case we fear that justice delayed will be justice denied,” and on Monday, Cox’s attorneys said that she had left Texas to obtain an abortion.

The case, the first of its kind since the Supreme Court overturned the federal right to abortion in its June 2022 Dobbs v. Jackson Women’s Health Organization decision, outlines the potential disjunction between the timeline of the Texas state abortion ban — which includes harsh penalties for providers who perform an abortion past six weeks — and the progression of pregnancy itself.

Prospective parents can only get genetic testing — which reveals whether their fetus will suffer from potentially fatal disease — at around 11 weeks, long after the state bans elective abortion.

Anatomy scans — which reveal serious birth defects — are generally not performed until 20 weeks, at which point abortions become rare, expensive and hard to acquire.

At 20 weeks, Cox is well past the six-week limit on abortions prescribed by the Texas state Legislature in 2022 — and the state attorney general’s office argued Friday that she doesn’t meet the criteria for the kind of medically necessary abortion that the state has left as an exception in its ban. 

Cox, a 31-year-old Dallas mother of two, is pregnant with a fetus suffering from a fatal condition that leads to miscarriage, stillbirth or the death of the infant soon after birth. Doctors told her that carrying the pregnancy to term could put her health and her ability to have more children in the future in jeopardy.

Sarah Stewart, a partner at Dallas-based law firm Reed Smith who wrote an amicus brief in support of a concurrent legal challenge to the state abortion ban, contends that despite the state attorney general office’s argument, Cox “is exactly the plaintiff” conservative firebrand and state Attorney General Ken Paxton (R) has said “should bring this case and [whose] case would qualify for relief” in his response to the ongoing case over the ban.

In that case, Stewart noted, Paxton’s office argued that women who are not currently pregnant — unlike Cox — do not have standing to sue over the law and implied that several of the plaintiffs should have been able to obtain legal abortions, though Paxton has not specified which. 

Several of the women involved in the lawsuit, Zurawski v. Texas, have cases similar to Cox’s, Stewart said.

The two cases connect in another way: Cox got the diagnosis that her fetus suffered a fatal abnormality on the same day that the Texas Supreme Court held hearings on Zurawski.

Her case shows a “really problematic” model for care on behalf of Texas women with complicated pregnancies, Stewart added. 

“Those women have to wait until, in [the] midst of [a] rapidly evolving, very dangerous, potentially dangerous health care crisis — find a lawyer, file suit, expect that the attorney general is going to drag it out, and fight it — all while experiencing a medical emergency,” she said. She emphasized that the cases involved in both lawsuits are all overwhelmingly those of women who badly wanted their pregnancies. 

In his filing to the state Supreme Court, Paxton characterized Cox’s abortion as “elective,” a term without medical meaning that implies she is using it as a form of birth control. Cox has stressed, however, that her desire for more children is a driving force behind her efforts to obtain an abortion. 

In her initial filing, she said that “it is not a matter of if I will have to say goodbye to my baby, but when.”

She added that she “desperately want[s] the chance to try for another baby and want[s] to access the medical care now that gives me the best chance at another baby.” 

The state Supreme Court’s decision knocked down the ruling by an Austin judge that Cox was a candidate for a medically necessary abortion under the law.

Responding to that decision by Judge Maya Guerra Gamble, which gave Houston obstetrician Damla Karsan clearance to perform an abortion on Cox, Paxton gave Cox’s medical team a not-so-veiled threat in a letter to three Texas hospitals.

Paxton focused in the letter on the temporary restraining order (TRO) that Gamble had given Cox — shielding providers such as Karsan from potential life in prison, the loss of her medical license and penalties of up to $100,000.

While the restraining order for a limited time protected doctors and hospitals in Cox’s specific case from the state, Paxton wrote, it did not protect them from private citizens, who under a 2022 “bounty” law can sue anyone who helps a Texas woman get an abortion.

And, Paxton noted, the restraining order was a temporary measure — unlike the potential repercussions.

“We remind you that the TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires,” he wrote.

Those laws are undergoing a major legal challenge by 22 women — two of them doctors — who charge that ambiguities in the state law make it impossible for Texans to avail themselves of abortions even when medically necessary.

In theory, the state has enshrined the right to abortions in such cases in the same statute that created the abortion ban. Under its Exception for Medical Emergency, state law protects doctors who provide medically necessary abortions.

But in the ongoing Zurawski lawsuit, 20 women denied abortion care sued the state, arguing that this protection on paper hadn’t translated to legal abortions in the real world. Several of the women charged that their doctors had been too scared to perform abortions because they feared the women were not yet sick enough to give the doctors unambiguous protection against state law enforcement.

That’s a concern that the state attorney’s office has brushed off. In August, the office filed for — and won — a stay on an Austin judge’s ruling that found Texas doctors should be protected for using “good faith judgment” in deciding an abortion was medically necessary.

In oral arguments before the state Supreme Court in late November, state attorney Beth Klusmann argued that the women’s fight was with their doctors, not the state.

A woman facing death if she doesn’t get an abortion should clearly “qualify for a medical emergency exemption,” Klusman argued. “And so, if she has to come to court to make that happen, that is not the state’s fault.” 

She argued that if the doctors were not performing medically necessary abortions, then patients could sue them — and if they didn’t want to, “That’s their choice.”

Duane of the Center for Reproductive Rights argued before the court that the women didn’t want to sue their doctors, who they saw as being in an impossible position.

“As all of our patient-plaintiffs have testified, their doctors didn’t know what to do. Their hands are tied. The law acknowledges that physicians should not be waiting until death is imminent — and yet they are,” Duane said.

Paxton’s filing on Friday — which successfully got the state Supreme Court to halt Cox’s progress toward an abortion — appeared to emphasize the risks abortion advocates argue doctors face in making this decision.

The state attorney general admonished Cox’s doctor, Karsan, for failing to get a second opinion about “whether Ms. Cox qualifies for the medical exception to Texas’ abortion laws.” 

Karsan is one of the two doctors that has joined the Zurawski lawsuit — arguing that because she is in private practice, she can speak out in a way that doctors at public hospitals cannot.

Since the Supreme Court’s Dobbs decision, according to the Zurawski filing, Karson has treated a wide array of patients pregnant with fetuses that would not survive, and who needed abortions “for complications like kidney stones, bipolar disorder, and hemorrhage.”

Before the state ban, “Dr. Karsan would have offered abortion care to these patients,” attorneys from the Center for Reproductive Freedom wrote. 

“Now, Dr. Karsan instead has had to give them information about where to seek abortion care out of state.”

Another obstetrician suing the state in Zurawski, Judy Levison, largely retired from obstetrics after the Texas abortion ban passed, arguing that she could no longer give her patients adequate care.

In the Zurawski filing, Levison argued that “widespread fear and confusion regarding the scope of Texas’s abortion bans has chilled” doctors’ ability to give good care.

That includes their ability to counsel patients about the kind of genetic testing that would let them know if their fetus is suffering from a serious disease — like chromosomal abnormalities of the sort Kate Cox discovered — that would make abortion medically recommended, according to Levison.

In an unusual move, Paxton sent his letter warning Cox’s medical team of potential legal action to the hospitals where Karsan, her doctor and prospective abortion doctor, was credentialed to practice, rather than to Karsan herself.

If an abortion was performed on Cox, Paxton’s attorneys wrote, the hospital that provided it “may be liable for negligently credentialing the physician and failing to exercise appropriate professional judgment, among other potential regulatory and civil violations.”

This marks a stark reversal in how the state has viewed the responsibility of Texas hospitals over the doctors who practice there.

Since the Republican-led tort reform campaigns of the 1990s, Texas law has afforded hospitals wide protections from the legal liabilities stemming from actions their doctors take.

In one famous case, Texas neurosurgeon Christopher Duntsch killed two patients and maimed 31 others between 2011 and 2013 — while the Dallas hospitals that had given him credentials quietly passed him around.

Like hospitals throughout the state, the facilities Duntsch operated at were protected by strict state laws that required anyone suing them to demonstrate that they had been malicious — not simply negligent — in allowing him to practice.

But Paxton couldn’t target Karsan, Stewart noted, because the Austin court had already protected her under the temporary restraining order.

The question in Zurawski is: “What is the standard doctors need to meet? Good faith medical judgment or something else?” Stewart said.

The existing medical exemption law, she said, put doctors into a very difficult position — because any abortion carried out according to an objective list of permissible conditions, rather than a simple protection of the doctor’s best judgment, could always be challenged by another doctor who could offer a “second opinion” on behalf of the state that the abortion had been unnecessary in that case.

“Doctors have to be prepared to personally sacrifice their own lives,” she said. “That’s an untenable position to put your doctor in.”