Good, with the obvious proviso that no one should ever have to go through this.
For the first time in at least 50 years, a judge has intervened to allow an adult woman to terminate her pregnancy.
When Travis County District Judge Maya Guerra Gamble handed down the temporary restraining order Thursday, Kate Cox, 31, of Dallas burst into tears. Cox and her husband desperately wanted to have this baby, but her doctors said continuing the nonviable pregnancy posed a risk to her health and future fertility, according to a historic lawsuit filed Tuesday.
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.
“The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” Gamble said.
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.”
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.
See here for the background. I note with some grim satisfaction that my assessment of the argument the state was likely to make was accurate. You don’t get the full picture of it from this story, however. Here’s the Dallas Observer:
In the Thursday emergency hearing, the state’s attorney, Johnathan Stone, argued that Cox did not meet the strict requirements for a medical exemption simply because her future fertility might be at risk, and that this request represented an improper use of a temporary restraining order, since Cox’s abortion would be permanent. Cox’s attorney Molly Duane responded by saying the state “moves the goal post” in terms of exception eligibility and that it seemed as though the state felt that Cox wasn’t “close enough to death” for them to grant her the exception.
Emphasis mine. And to be clear what that means, she risks needing to have her uterus removed if things go badly. The state says that doesn’t amount to enough harm for her to seek relief in the courts. I have to laugh at this because the alternative is to smash things and I like all the things that are currently within my reach. But by all means, feel free to smash something yourself.
As of this writing, it is not known whether the state will pursue a writ of mandamus with the Supreme Court to pause the temporary restraining order. I wouldn’t put it past them, of course, but perhaps by then Kate Cox will have received the care she needs and mooted the issue. Well, except for the ghouls that could then sue her and her husband and her doctor and anyone else involved under SB8. So this very much isn’t over yet. TPR, the Austin Chronicle, and Mother Jones have more.
UPDATE: Deep breath, deeeeeeeep breath…
In a statement Thursday afternoon, Texas Attorney General Ken Paxton said that the judge’s order “will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions.”
It also does not prohibit private citizens or a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Cox’s doctor or anyone else, Paxton argued, adding that the judge’s order “will expire long before the statute of limitations for violating Texas’ abortion laws expires.”
In a letter to three Texas hospitals where Cox’s doctor has practiced, Paxton warned that the facilities could be found liable for negligently credentialing her or for failing to exercise appropriate professional judgment in allowing the doctor to perform an abortion. Two of the hospitals did not immediately respond to requests for comment, while the third said it is not involved in this lawsuit.
Paxton added that the lawsuit and judge’s order “fail to establish that Ms. Cox qualifies for the medical exception to Texas’ abortion laws.”
In response, Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a statement to NBC News that “fearmongering has been Ken Paxton’s main tactic in enforcing these abortion bans” and that he “is misrepresenting the court’s order.”
In an earlier news conference, Duane said “every day of this ordeal has been agonizing” for Cox.
“I want to emphasize how unforgivable it is that Kate had to beg for health care in court. No one should have to do this,” she said. “The reality is that 99% of people cannot.”
Duane also called the state’s arguments “callous in the extreme.”
“They want Kate to suffer, to put her health at risk and to give birth to a stillborn baby or be forced to watch her child suffer for the few short moments of her life,” she said. “That is a decision that only a family should be able to make on their own.”
Notably, it does not say that the writ of mandamus is being pursued. I will hold onto that. If the cruelty is the point, then Ken Paxton has made his point.