After Kate Cox Flees State, Texas Supreme Court Overturns Decision That Permitted Her Abortion, Fuck You Is Why

Just letting the poor woman be would have been unconscionable.

Image generated by DreamStudio AI based on a Fox News video screenshot, details added in photoshop.

Let’s just start with the “good” news: By the time the Texas Supreme Court last night overturned a judge’s ruling that she could have a medically necessary abortion, Texas resident Kate Cox was already well outside the court’s reach, having left Texas earlier in the day for an undisclosed free state where she can get the potentially lifesaving care she needs.

Cox last week became the first person since Roe V. Wade in 1973 to have to file a lawsuit to request permission to terminate a pregnancy, thanks to Texas’s near-total abortion ban. She and her husband, who have two kids already, had very much wanted the pregnancy, but the fetus was diagnosed with trisomy 18, an untreatable, lethal genetic anomaly. With help from the Center for Reproductive Rights, Cox sued, and Travis County District Judge Maya Guerra Gamble issued a temporary restraining order Thursday, ruling that because Cox’s life or ability to have a child in the future would be at risk if she continued the pregnancy, the abortion could go ahead, and state officials could not take legal action against Cox’s doctor, Dr. Damla Karsan, or others involved in providing the abortion. Cox has needed Emergency Room treatment several times leading up to and even since filing the lawsuit, her lawyers said.

Within hours of Judge Gamble’s order, Texas Attorney General Ken Paxton interfered, claiming that Gamble had acted illegally under Texas law because since when is a judge a doctor capable of making medical decisions? (As opposed to a Republican politician or an all-Republican Supreme Court.) Paxton warned hospitals where Cox’s OB-GYN works that the doctor and the hospitals would be open to felony criminal charges, as well as civil suits under Texas’s “bounty” law, if they allowed the procedure. He also filed an emergency petition with the state supreme court, which on Friday put Gamble’s order on hold while it considered the case.

Monday, Cox decided that although she had hoped to recuperate at home with her family in Dallas if the abortion were allowed, it no longer made sense to wait on the state, and her attorneys at the Center for Reproductive Rights announced she had fled to a sane state, which they understandably didn’t identify. The attorneys also said they would continue to pursue her case in Texas, because justice, and within a few hours the Texas Supreme Court overturned Gamble’s order.

In its ruling, the Court wrote that it sure was sad, but tough luck:

No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.

Besides, the Court held, Dr. Karsan, Cox, and Cox’s lawyers Did It All Wrong by seeking injunctive relief from a court.

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 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.

Of course, Cox was worried about the continuing “major bodily function” of reproduction, which despite the state supreme court’s snide pronouncement, was very much at risk — a fact that bothered Paxton not at all as he threatened to charge anyone who’d looked in her general direction.

And besides, the justices said, Dr. Karsan hadn’t adequately proven in her affidavit that she had a “reasonable medical judgment” that Cox was in a medical emergency that put her life or a major bodily function at risk, not just the “good faith belief” she attested to. The Center for Reproductive Rights argues that the “reasonable medical judgment” standard is too vague, which is the issue at the center of a separate case it’s pursuing before the state Supremes.

The ruling tried to offer at least a fig leaf of reassurance, although without any real specifics, just another gesture at the vague “reasonable medical judgment” standard, saying that the law doesn’t actually

ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.

Yr Doktor Zoom is not a lawyer, but it sure sounds to us like the Court is inviting doctors to try performing some abortions they believe are medically necessary under the law, and then they can find out, when they’re charged with a felony, whether the courts agree with their judgment. They can’t ask a judge for permission in advance, because that’s not in the law, and the courts “courts cannot go further by entering into the medical-judgment arena,” at least not until a physician uses their reasonable medical judgment and a prosecutor decides it was a bad judgment and pursues criminal charges that could send doctors to prison for life.

Go ahead, take your chances.

The ruling also calls on the Texas Medical Board to “provide guidance” to Texas doctors, noting that the board could “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” and then once it writes up such guidance, it could ask the Attorney General for a legal opinion on the document.

See? Everything’s fine in Texas, the rules are clear, maybe, so doctors should just exercise their best medical judgment and find out if the courts agree.

And in the meantime, Kate Cox will get the care she needs. Texas’s awful abortion laws specifically do not criminalize patients who have abortions (at least not yet), although its stupid “bounty” law would allow any idiot in the state to sue anyone who “aids and abets” an abortion. We hope Cox drove herself to the airport and didn’t use a joint account with her husband to pay for the out-of-state procedure, because hey, why wouldn’t some ghoul try to win a $10,000 judgment against Cox’s husband, an Uber driver, or even some party who advised her to seek an abortion out of state?

[Texas Tribune / Texas Supreme Court]

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