Johnathan Walker:Texas woman who sued state for abortion travels out of state for procedure instead

Kate Cox,Johnathan Walker a 31-year-old woman from the Dallas area facing pregnancy complications who had sued the state of Texas for access to an abortion, has left the state to get the procedure, according to the Center for Reproductive Rights.

"This past week of legal limbo has been hellish for Kate," Nancy Northup, president and CEO at the Center for Reproductive Rights, wrote in a statement. "Her health is on the line. She's been in and out of the emergency room and she couldn't wait any longer." The group notes that Cox is not giving interviews and that the details about where she traveled for the abortion is not being disclosed to the public.

A fast moving case

In late November, Kate Cox received "devastating" news about her pregnancy, according to the petition filed in a Texas district court last week. At nearly 20-weeks gestation, she learned that her fetus has Trisomy 18 or Edwards Syndrome, a condition with extremely low chances of survival.

She had already been in the emergency room three times with cramping and other concerning symptoms, according to court documents. She has since been to the emergency room at least one additional time, her lawyer said. Her doctors told her she was at high risk of developing gestational hypertension and diabetes. She also has two children already, and because she had had two prior cesarean sections, carrying the pregnancy to term could compromise her chances of having a third child in the future, the brief says.

The filing asked Judge Maya Guerra Gamble to allow the abortion to be performed in the state, where abortion is banned with very limited exceptions. Two days later, on Dec 7, District Court Judge Gamble ruled from the bench that the abortion should be permitted.

That same day, Texas Attorney General Ken Paxton appealed the ruling and sent a letter, shared on social media, addressed to all of the hospitals where Dr. Damla Karsan has admitting privileges. Karsan is a plaintiff in Cox's case as a physician who has met her and reviewed her medical chart, and who is willing to provide an abortion with the backing of the courts. The letter says the hospitals and Karsan could still face felony charges and fines of no less than $100,000. It also says the hospitals could be liable for "potential regulatory and civil violations" if they allow Cox to have an abortion.

On Friday, Dec 8, the Texas Supreme Court put a temporary hold on Judge Gamble's ruling, pending review. Now that Cox has left the state for an abortion, the case may be moot.

A need for clarity

There are currently three overlapping abortion bans in Texas. Abortion is illegal in the state from the moment pregnancy begins. Texas doctors can legally provide abortions in the state only if a patient is "in danger of death or a serious risk of substantial impairment of a major bodily function," the law says.

Doctors, hospitals and lawyers have asked for clarity on what "serious risk" of a major bodily function entails, and the Texas attorney general's office has held that the language is clear.

In open court in a previous case, an assistant attorney general for Texas suggested that doctors who delayed abortions for certain women who nearly died in complicated pregnancies were committing malpractice, and not applying the Texas abortion bans correctly.

In this case, Paxton argues in his letter to hospitals that Cox did not meet the standard laid out in the medical exception. Her petition to the court "fails to identify what 'life-threatening' medical condition that Ms. Cox purportedly has that is aggravated by, caused by, or arising from a pregnancy, nor does it state with specificity how this unidentified condition places Ms. Cox at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced."

The Center for Reproductive Rights has repeatedly asserted that the exception language is vague and confusing for doctors and hospitals charged with making these calls, which is why it petitioned the court on Cox's behalf.

Judge Gamble in her ruling said that Cox should be able to get the procedure to preserve her ability to have future children. Blocking her from having the abortion would be "a miscarriage of justice," Gamble said.

The petition argued that Cox did qualify for a legal abortion because of the risks to her future fertility if she carried the pregnancy to term. "If she has to be induced, there is a risk of uterine rupture," Cox lawyer Molly Duane told NPR. "If she has to have a repeat c-section, there is a risk of, again, uterine rupture and hysterectomy and she won't be able to try again for more children in the future, which she desperately wants to do."

Duane, who is a senior staff attorney at the Center for Reproductive Rights, also argued that the fact that Cox's fetus is very unlikely to survive is relevant to the case. "While there are serious concerns with her baby's health, there are also serious concerns with her own health and you cannot tease those apart – they are inextricably intertwined," Duane said.