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The Texas Supreme Court on Friday night temporarily halted a lower court's order that would have permitted a pregnant Dallas woman, whose fetus has lethal abnormality, to get an abortion.
The order came in response to Texas Attorney General Ken Paxton's request a day earlier that the high court step in to intervene. The Supreme Court 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.
Paxton’s office submitted its petition just before midnight Thursday, after a Travis County district judge granted a temporary restraining order allowing Kate 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.
“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, in a Friday evening statement.
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.
Abortion has been illegal in Texas ever since the U.S. Supreme Court overturned Roe in June of last year, making leaving the state the only option for a woman seeking an abortion unless her life is at risk.
Texas also has a law that allows any citizen to sue someone who helps perform or facilitate an abortion after around six weeks of pregnancy. Paxton has warned that even if the courts allow an abortion in this case, the hospitals and doctors would be liable under that law.
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.”
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 health care 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.