Texas Supreme Court Overturns Abortion Decision from Lower Court

Yesterday, December 11, 2023, the Texas Supreme Court issued a ruling that overturned a lower court’s decision to grant Kate Cox an abortion. The lower court decision was issued last Thursday and blocked by the state’s supreme court just one day later. The ruling has sparked outrage from reproductive rights advocates. A closer look into the case — the first to request abortion permission on behalf of an individual since Roe v. Wade was overturned — reveals an alarming pattern to many experts.

On November 27, 2023, Cox, a 31-year-old mother of two, found out her fetus has a fatal genetic anomaly, trisomy 18, that is expected to cause a miscarriage, stillbirth, or quick infant birth if the pregnancy continues. According to the Minnesota Department of Health, nearly all babies born with trisomy 18, 90–95%, do not survive past their first year, with most infants living less than a week.

Infants who do live with the condition tend to be underweight, have difficulty feeding, and experience other symptoms, including recurrent pneumonia and respiratory illness, seizures, urinary tract infections, delayed development, and intellectual disabilities.

Understanding the risk of fatalities and the poor quality of life that her baby may experience, Cox sought an exception to the Texas abortion bans.

“I do not want to continue the pain and suffering that has plagued this pregnancy…. I do not want my baby to arrive in this world only to watch her suffer. I need to end my pregnancy now so that I have the best chance for my health and a future pregnancy,” she said in a statement to the Center for Reproductive Rights.

On December 5, 2023, the center sued the state of Texas on behalf of Cox, her family, and her doctor, Damla Karsan, MD, petitioning the court for an exception based on the fetus’s fatal condition.

Just days after filing the case, on December 7, 2023, District Court Judge Maya Guerra Gamble in the lower courts approved Cox’s request for an abortion exception. The judge's ruling stated, “I am going to grant the Temporary Restraining Order for the Coxes and Dr. Karsan. The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice. So I will be signing the order, and it will be processed and sent out today.”

That same day, Texas Attorney General Ken Paxton asked the state’s Supreme Court to halt that decision and re-evaluate the case. Paxton also issued a public letter threatening to prosecute Karson and her staff if she performs the abortion. He threatened civil and criminal liability and first-degree felony prosecutions.

In the letter, Paxton claims that the judge is not medically qualified to make this decision, which poses more questions. If Gamble, in her position as a judge, is not medically fit to make these decisions, what qualifies other judges, including those in the Texas Supreme Court, to rule on medical decisions?

Despite his anti-abortion stance, Paxton’s argument pokes holes in the state’s abortion ban, bringing up the question of medical qualification and who is educated enough to make medical decisions.

Eventually, Paxton got his way, as the Texas Supreme Court halted the lower court decision on December 8, 2023.

While waiting for the ruling, Cox and her family decided to travel to a state that allows abortion to seek care.

“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “Her health is on the line. She’s been in and out of emergency rooms, and she couldn’t wait any longer.”

“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,” added Molly Duane, senior staff attorney at the Center for Reproductive Rights, in a statement from the center.

Duane’s predictions were correct; just hours after Cox announced her decision to travel for an abortion in a court filing, the entirely republican Texas Supreme Court overturned the lower court’s ruling, denying her an abortion.

The decision by the Texas Supreme Court made multiple alarming and unclear statements. One statement noted that the state law’s exception ruling does not require a doctor in a “true emergency” to seek court permission, implying that Cox’s case did not qualify as an actual emergency.

Beyond that, the court acknowledged the devastation of a trisomy 18 diagnosis but still maintained that it did not threaten the mother’s life — a claim that has been disproven by multiple medical professionals and demonstrated in Cox’s repeated emergency room visits. 

"This ruling should enrage every Texan to their core," Duane said. "If Kate can’t get an abortion in Texas, who can? Kate’s case is proof that exceptions don’t work, and it’s dangerous to be pregnant in any state with an abortion ban."