Texas woman flees state for abortion while awaiting state Supreme Court ruling

 December 12, 2023

A pregnant Texas woman who filed a lawsuit seeking a medical exemption to the state's restrictive abortion law reportedly fled the state to obtain an abortion elsewhere while waiting for the Texas Supreme Court to rule on her case, according to The Texas Tribune.

Ironically, though the high court struck down a lower court's temporary restraining order that would have allowed for an exemption to the Texas law, the justices ultimately concluded that no court order was needed or warranted and the woman was already permitted to obtain an abortion if her doctor had deemed it necessary under "reasonable medical judgment."

Texas court issued temporary restraining order against state's abortion law

The Tribune reported that it was just last week that Dallas resident Kate Cox filed a lawsuit seeking a medical exemption to Texas' restrictive abortion law after her unborn baby was diagnosed with a rare chromosomal disorder known as Trisomy 18 that likely would have resulted in the infant's death shortly after birth or severe deformities and other developmental issues, and, if carried to term, would have threatened the mother's future fertility.

Just days after the lawsuit was filed, Travis County District Judge Maya Guerra Gamble ruled Thursday in favor of Cox and issued a temporary restraining order to block the state from enforcing its abortion law and allow Cox to obtain the pregnancy-ending procedure.

On Friday, however, and at the request of Texas Attorney General Ken Paxton, the state Supreme Court put Gamble's order on hold while it considered the case over the weekend before a ruling was issued on Monday.

In the meantime, though, and reportedly after multiple trips to an emergency room, attorneys representing Cox told the high court that their client had left the state to obtain an abortion elsewhere, though they declined to specify where or when that procedure occurred.

Court's order unnecessary as abortion law exemption already exists

That out-of-state abortion was likely not necessary, however, and could have been legally obtained in Texas if Cox had waited long enough for the Supreme Court's seven-page ruling on Monday that overruled the lower court's temporary restraining order but nonetheless clarified that the procedure was already permitted under the state law's existing but limited and admittedly vague medical exemption.

"These laws reflect the policy choice that the Legislature has made, and the courts must respect that choice," the justices wrote. "Part of the Legislature’s choice is to permit a significant exception to the general prohibition against abortion. And it has delegated to the medical -- rather than the legal -- profession the decision about when a woman’s medical circumstances warrant this exception."

That exemption specifically allows for the "exercise of reasonable medical judgment" by a doctor to legally perform an abortion if it is determined that a pregnant woman "has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced."

"A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function," the justices explained. "The law leaves to physicians -- not judges -- both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient."

Woman would likely have qualified for abortion law exemption without erroneous court order

In this particular case, the Texas Supreme Court determined that Cox's physician, Dr. Damla Karsan, had failed to properly attest that Cox was eligible for the abortion law exemption under her "reasonable medical judgment" and said, "Dr. Karsan asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires."

In light of that legal shortcoming, the justices wrote of the lower court's ruling, "Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it. The trial court erred in applying a different, lower standard instead of requiring reasonable medical judgment."

At another point, the justices emphasized, "Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed."

In the end, given the mootness of the case after Cox fled the state to obtain an abortion elsewhere, the high court urged the Texas Medical Board to issue clarifying guidance -- including outlining hypothetical situations and best practices as well as identifying "red lines," similar to during the COVID-19 pandemic -- on the abortion law exemption to hopefully avoid any similar "confusion" and unnecessary legal proceedings in the future.

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