Texas Woman Sues State for an Abortion

A pregnant Texas woman whose fetus has a fatal condition sued the state on Tuesday seeking an emergency court order to allow her doctor to perform an abortion, despite the state’s strict bans on the procedure.

The lawsuit is believed to be one of the first attempts in the nation to seek a court-ordered abortion since the Supreme Court overturned Roe v. Wade last year, allowing states to make their own abortion laws.

Texas is at the forefront of states that restrict abortion, and has overlapping bans that outlaw abortions from the point of fertilization and allow private citizens to sue others who might help a woman obtain an abortion. The laws allow some exceptions to save the health and life of the pregnant woman, though abortion rights advocates argue that they are unclear, putting women with pregnancy complications at risk.

The vagueness of the exceptions in Texas have prevented doctors from performing the procedure in most cases, lawyers for the woman, Kate Cox, have argued. A decision in her case could force the state to more clearly define what is allowed under the law.

Ms. Cox is 20 weeks pregnant, and her fetus has been diagnosed with trisomy 18, a condition that in all but very rare cases leads to miscarriage, stillbirth or the death of the infant within the first year after birth. Despite trips to the emergency room for pain and discharge, Ms. Cox, 31, a mother of two young children who lives in the Dallas area, has been told by doctors that she is required to continue her pregnancy under Texas law.

“Essentially, it was, as long as the baby has a heartbeat, there was nothing you could do in Texas,” said Ms. Cox in an interview on Tuesday.

Her emergency appeal comes as the Texas Supreme Court is weighing a broad effort by abortion rights advocates and women who have been denied abortions to compel state officials to clarify the medical situations in which doctors can perform abortions without fear of civil or criminal penalties. That suit was filed in March by the Center for Reproductive Rights, which is also representing Ms. Cox.

A district court judge ruled in their favor over the summer, shielding doctors from prosecution for providing abortions under a range of circumstances, including when pregnancy complications create a health risk, or when the fetus is unlikely to survive. But the Texas attorney general, Ken Paxton, appealed, putting the district court ruling on hold for now. The case, Zurawski v. State of Texas, could be decided by the state’s highest civil court in the coming weeks.

But unlike that court proceeding, which seeks a ruling to apply broadly to future medically necessary abortions in Texas, Ms. Cox is currently pregnant and asking the court to intervene immediately to allow an abortion in her case.

Such cases have been extremely rare. Mary Ziegler, a professor and legal historian at the University of California, Davis, School of Law said she was not aware of a similar case being brought since the decision to overturn Roe v. Wade. “Usually the stories of court ordered abortions were people who did not want abortions,” she said, citing past cases. “Women or pregnant people pursuing relief in this way are pretty unusual.”

Ms. Cox’s lawyer, Molly Duane, said she was not aware of another suit like hers filed.

“It’s not so easy, in the middle of a health care crisis, to reach out to a lawyer and file a lawsuit,” she said. Ms. Cox contacted the Center for Reproductive Rights after seeing news about arguments in the Zurawski case on the same day as she received her diagnosis.

Ms. Cox’s suit is seeking to protect her doctor, Damla Karsan, from prosecution, as well as her husband, Justin, who could face civil liability under the state’s 2021 abortion restriction, known as Senate Bill 8, which allows private citizens to sue those who have assisted others in obtaining an abortion after detection of fetal cardiac activity, usually around six weeks.

The state also has a trigger ban, which went into effect after the U.S. Supreme Court decision, and a separate, more-than-a-century-old abortion ban that Mr. Paxton has said he would also enforce.

The suit was filed in Travis County district court against the state of Texas, Mr. Paxton and the Texas Medical Board.

“Our contention is that Kate falls within the medical exemption, but her doctors can’t proceed and give her the medical care that she needs unless and until a court agrees,” Ms. Duane said. “Otherwise,” she added, “her doctor will risk life in prison, loss of her medical license and hundreds of thousands of dollars in fines.”

Mr. Paxton’s office and the medical board did not immediately respond to requests for comment.

In an interview, Ms. Cox said that she and her husband had been excited at the prospect of a third child joining their 3-year-old daughter and 1-year-old son. The couple only glancingly followed the rapidly shifting legal landscape around abortion in Texas as Roe was overturned and bans went into effect.

“I thought I would never need an abortion,” she said. “I want a big family.”

“We knew abortion was illegal in Texas,” Mr. Cox said, but not how limited the exceptions were. “We had no idea the scope of that.”

The diagnosis of trisomy 18 was devastating, Ms. Cox said, because it meant that the fetus would not survive until birth, or, if carried to term, the infant would die within a short time. That feeling was compounded, she said, by her inability to end the pregnancy despite her doctors telling her that continuing it could endanger her own health. Ms. Cox delivered her previous pregnancies by C-section, and doctors have told her that the risk of scarring from a third C-section could threaten her chances of having another child.

“It’s deep sadness,” she said. “I feel like I should not have to put my body through the risks of continuing this pregnancy through a childbirth and induction with a chance of uterine rupture, a third C-section.”

Texas officials, including Gov. Greg Abbott and other proponents of the state’s strict abortion bans, have said that the bans already allow for doctors to perform abortions in cases where the mother’s life is at risk.

But, the suit argues, state officials have not clarified what sorts of situations would constitute such a risk, leaving doctors — who must record every abortion they perform under the exception — fearful of going outside of its bounds and facing serious penalties, which include prison sentences of up to 99 years and fines of at least $100,000.

According to the suit, during the Zurawski case, lawyers for the state said that an abortion could be performed if a patient had received a fatal fetal diagnosis and was facing serious health risks, as the suit argues is the case with Ms. Cox. “But the state defendants have never said what evidence nor what condition would be enough,” according to the complaint, discouraging action by the doctors.

State officials have argued that women who do not receive proper care — such as an abortion permitted under the exceptions — could sue their doctors. But Ms. Cox said she felt well cared for by her doctor, and stymied by the state.

Kate Zernike contributed reporting.