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Texas Supreme Court temporarily halts order that allowed pregnant woman to have abortion

The Travis County 459th District Court is seen prior to an emergency hearing in Cox v Texas, on Thursday in Austin, Texas.  (SUZANNE CORDEIRO)
By Maegan Vazquez Washington Post

The Texas Supreme Court on Friday night temporarily halted an order allowing a woman who is 20 weeks pregnant to get an abortion – reversing a lower-court ruling that marks the first case of a pregnant woman seeking a court order for the procedure since Roe v. Wade was overturned last year.

The case involves Kate Cox, a 31-year-old mother of two from the Dallas area, who asked the nonprofit Center for Reproductive Rights for legal help in obtaining an emergency abortion in Texas after she learned last week that her fetus had Trisomy 18, also called Edwards syndrome. The genetic condition is one “that cannot sustain life,” as Cox wrote in an op-ed Wednesday in the Dallas Morning News. Almost all such pregnancies end in miscarriage or stillbirth, according to the Cleveland Clinic. Babies who do survive often die prematurely.

Cox’s doctor warned that carrying the pregnancy to term could jeopardize her health and future fertility, including uterine rupture and hysterectomy, according to the lawsuit filed on her behalf.

On Thursday, Travis County District Judge Maya Guerra Gamble, an elected Democrat, granted a temporary restraining order that would allow Cox to have an abortion under the narrow exceptions to the state’s ban. But Texas Attorney General Ken Paxton (R) asked the Supreme Court of Texas to intervene to block Cox from obtaining an abortion.

The Center for Reproductive Rights responded on Friday in a court filing that the request is “stunning in its disregard for Ms. Cox’s life, fertility, and the rule of law.”

In a letter addressed to the hospitals where the doctor involved in the case had admitting privileges, Paxton on Thursday had threatened to take legal action if Cox had an abortion in the state. He contended that Cox’s doctor did not meet “all of the elements necessary to fall within an exception to Texas’ abortion laws” and that the judge was “not medically qualified to make this determination.”

Paxton said the Travis County judge’s order would not excuse the hospital or doctor from civil or criminal liability “including first degree felony prosecutions.” He added that the temporary restraining order “will expire long before the statute of limitations for violating Texas’ abortion laws expires.”

Doctors who perform abortions could be sentenced to five or more years in prison in many states. In Texas, they could go to jail for life.

Paxton is the first attorney general to issue such a clear and credible threat to hospitals and doctors in the wake of the U.S. Supreme Court ruling. While doctors and hospitals have feared what might happen if they provide abortions later deemed illegal, no medical professional has yet been prosecuted under the new abortion bans.

“This is the most direct confrontation we’ve seen,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in abortion. “There’s been some interest in prosecuting people who are in the broader abortion support network, but not doctors.”

That’s probably because doctors and hospitals are fairly risk-averse, she added. While many people have been helping to distribute abortion pills illegally since Roe was overturned, doctors don’t appear to be performing abortions in states with bans.

Molly Duane, senior staff attorney for the Center for Reproductive Rights, said in an online news briefing on Thursday that she would not comment on when or where Cox would proceed with an abortion.

Cox’s lawsuit could become a test case for similar cases elsewhere, with implications for abortion rights nationwide. On Friday, a pregnant woman sued Kentucky, arguing that the state’s near-total abortion ban violates the right to privacy and self-determination in the state constitution.

“I think the stakes are high in part because Paxton wants to stop Cox from being an example,” Ziegler said.

Cox and the Kentucky woman are the first two adult women to seek permission from a judge for an abortion since Roe v. Wade was decided in 1973.

Texas abortion laws are among the most restrictive in the country, outlawing all abortions except those that put the mother’s life at risk. Since the ban took effect, many women with life-threatening pregnancy conditions have had to seek care out of state, with doctors too fearful to treat them.

Cox’s suit is not related to a separate, broader case, Zurawski v. State of Texas, in which five women who had been pregnant sued the state over its near-total abortion ban. The women have claimed that state law denied them proper obstetrics health care and put their lives in danger.

Four of the women traveled out of state to have abortions; the fifth, whose fetus did not have a chance of surviving, was allowed to deliver only after she became septic, leaving her with permanent physical damage. The case now involves 20 women, and the Texas state Supreme Court held a hearing on the matter last week.

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Pradnya Joshi, Caroline Kitchener and Jintak Han contributed reporting.