A Texas judge granted on Thursday a temporary restraining order (TRO) barring the enforcement of the state’s strict abortion bans on a pregnant woman whose fetus was recently diagnosed with a fatal condition. In effect, the judge’s order allows the plaintiff to access abortion care in Texas at a point in her pregnancy when she would otherwise not be able to.
Plaintiff Kate Cox was joined by both her husband and her physician, Dr. Karsan, in filing a petition earlier this week after learning that her fetus had Trisomy 18, a chromosomal condition that causes structural abnormalities in development. After evaluating Cox, multiple physicians determined that her fetus has no chance of survival and that continuing the pregnancy jeopardizes her life and future fertility. However, no provider was willing to provide an abortion to Cox, who is over 20 weeks pregnant, due to Texas’s strict bans on abortion, including its trigger ban, Senate Bill (SB) 8, and its pre-Roe ban.
Texas’s trigger ban took effect in 2021. It makes performing an abortion a felony punishable by up to life in prison unless the patient qualifies under a very narrow set of exceptions. SB 8, otherwise known as the “Texas Heartbeat Act,” was also enacted in 2021 and provides a private right of action against anyone who performs or “aids or abets the performance” of an abortion after a “heartbeat” is detected. Texas’s pre-Roe ban dates back to 1925. However, an advisory from Texas Attorney General Ken Paxton and an order from the Texas Supreme Court—both issued in 2022—indicate that the century-old ban can once again be enforced following the US Supreme Court’s decision to overturn Roe v. Wade. Cox’s petition sought a TRO to temporarily block enforcement of all of three bans.
Issued by Judge Maya Guerra Gamble, Thursday’s TRO enjoins Texas and its agents from enforcing the bans against Cox and her medical providers, effectively permitting her to receive an abortion. According to the order:
Ms. Cox’s circumstances thus fall within the medical exception to Texas’s abortion bans and laws. Texas law therefore permits Dr. Karsan to perform, induce, or attempt an abortion for Ms. Cox, and permits Mr. Cox to assist Ms. Cox in obtaining that abortion . . . The Court finds that Plaintiffs are reasonably chilled from performing or aiding in the performance of an abortion for Ms. Cox without issuance of [a TRO].
Dr. Karsan is also a plaintiff in Zurawski v. Texas, a case brought by the Center for Reproductive Rights on behalf of 20 pregnant women, similar to Cox, who were denied abortion care despite facing dangerous complications. The Texas Supreme Court heard arguments on the matter on November 28 but have yet to release their decision.
