By Brendan Pierson
(Reuters) -A woman who had asked a court for an order allowing her to get an abortion under the medical emergency exception to Texas’ near-total ban will leave the state to receive care while the state’s highest court considers her case, her lawyers said in a court filing on Monday.
Lawyers for Kate Cox said in a filing with the Texas Supreme Court that she nonetheless wished to continue her lawsuit. A lower court last week issued a restraining order allowing her to obtain an abortion, but the state Supreme Court put it on hold while it considers an appeal by Attorney General Ken Paxton, a Republican.
“Kate’s case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work,” Nancy Northrup, president of the Center for Reproductive Rights, which represents Cox, said in a statement.
Paxton’s office did not immediately respond to a request for comment.
Cox’s fetus was diagnosed on Nov. 27 with trisomy 18, a genetic abnormality that usually results in miscarriage, stillbirth or death soon after birth.
Paxton had urged the Texas Supreme Court to quickly step in after District Court Judge Maya Guerra Gamble at a hearing in Austin last Thursday issued a temporary restraining order allowing Cox to have an abortion. Cox says her continued pregnancy threatens her health and future fertility.
The attorney general’s office in a filing to the high court had said Cox falls “far short of demonstrating” she meets the criteria for a medical exception and warned that Texas courts were not intended to be “revolving doors of permission slips to obtain abortions.”
Cox’s lawyers called Paxton’s petition “stunning in its disregard for Ms. Cox’s life, fertility, and the rule of law,” and had asked the court to instruct the attorney general’s office to comply with Gamble’s order.
The case is a major test of the scope of that exception under Texas law, which allows an abortion to save the mother’s life or prevent substantial impairment of a major bodily function.
Cox, 31, of the Dallas-Fort Worth area filed a lawsuit last Tuesday seeking a temporary restraining order preventing Texas from enforcing its near-total ban on abortion in her case.
Cox’s lawyers have said her lawsuit is the first such case since the U.S. Supreme Court last year reversed its landmark 1973 Roe v. Wade ruling, which had guaranteed abortion rights nationwide.
Cox, who was about 20 weeks pregnant when she first sued, said in her lawsuit that she would need to undergo her third Caesarian section if she continues the pregnancy. That could jeopardize her ability to have more children, which she said she and her husband wanted.
“The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability, is shocking and would be a genuine miscarriage of justice,” Gamble, whose ruling applies only to Cox, said at Thursday’s hearing.
Cox had said in her lawsuit that although her doctors believed abortion was medically necessary for her, they were unwilling to perform one without a court order in the face of potential penalties including life in prison and loss of their licenses.
Paxton warned in a letter sent shortly after Gamble issued the order that it did not shield doctors, hospitals or anyone else from prosecution for violating Texas’ abortion laws. The letter was sent to three hospitals where Damla Karsan, the doctor who said she would provide the abortion to Cox, has admitting privileges.
Paxton then petitioned the Texas Supreme Court to vacate Gamble’s order, arguing “Texas law does not permit abortions solely because the unborn child is unlikely to have sustained life outside the womb.”
Cox’s lawyer’s countered that Paxton’s office ignored that the statute also protects patients like Cox from “serious risk of substantial impairment of a major bodily function,” and that reproductive functions, which are critical to the creation of new human life, are “major bodily function” under Texas law.
The scope of Texas’ medical exception is already before Texas’ high court, which is considering a separate lawsuit seeking a broader order protecting women’s right to abortions their doctors deem medically necessary. The court heard arguments in that case in late November.
(Reporting By Brendan Pierson in New York; Editing by Alexia Garamfalvi and Bill Berkrot)
