By Tyler Arnold
Washington, D.C. Newsroom, Dec 11, 2023 / 14:05 pm
The Texas Supreme Court paused a lower court ruling that could have allowed a woman to receive an abortion following a request from Attorney General Ken Paxton.
A Dec. 7 ruling from Travis County District Judge Maya Guerra Gamble would have temporarily restricted Paxton and other state officials from enforcing Texas abortion laws against hospitals and doctors who would have performed the abortion for the woman.
Gamble’s ruling came amid the preborn child’s diagnosis of trisomy 18. Only about 5%-10% of babies born with this condition will live past their first birthday. Her order also claims the woman’s doctor determined that she could suffer long-term health complications, such as future fertility problems, if she continues the pregnancy.
The Supreme Court’s Dec. 8 order will halt that decision, which restores the state’s ability to enforce its laws. However, it does not put an end to the litigation, noting that the ruling is “without regard to the merits” of the case and it allows the case to proceed. The litigation is scheduled for a hearing on Dec. 20 in the Travis County District Court. The hearing will determine whether a district judge grants a permanent order to restrict the state from enforcing its abortion laws in this specific case.
If Gamble or another judge grants a permanent order, the state could again appeal to a higher court. The attorney general has accused Gamble of being an “activist judge.”
The pregnant woman, Kate Cox, is being represented by attorneys associated with the Center for Reproductive Rights.
“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,” Molly Duane, an attorney for the pro-abortion organization, said in a statement. “We are talking about urgent medical care. Kate is already 20 weeks pregnant. This is why people should not need to beg for health care in a court of law.”
In a Dec. 7 statement, Texas Right to Life Director of Media and Communication Kimberlyn Schwartz said the preborn child’s life should not be ended because of the potentially fatal diagnosis.
“Ms. Cox’s story is heartbreaking because all of us recognize that she and her child are equally valuable and loved by God,” Schwartz said. “If you feel compassion for this situation like us, it is because we all know that there are two lives at stake and that both are supremely important. The answer is not to end the child’s life because of the baby’s disability, but state law does anticipate the serious risk to the mother.”
Hospitals could still face criminal and civil consequences
Paxton on Dec. 7 sent a letter to three hospitals that are affiliated with the doctor who intended to perform the abortion. It warned that the doctor and others at the hospital could still be held criminally or civilly liable for their role in the procedure once the order is no longer in effect.
The judge’s order would not have amended state law but would have only restricted officials from enforcing it while in effect. He noted the temporary order would “expire long before the statute of limitations for violating Texas’ abortion laws expire.” If a judge issues a permanent order that is ultimately reversed, the state’s ability to enforce its abortion laws against the doctor and other hospital staff would go back into effect.
“Your hospital may be liable for negligently credentialing the physician and failing to exercise appropriate professional judgment, among other potential regulatory and civil violations, if you permit [the doctor] to perform an unlawful abortion,” Paxton wrote.
The penalties for performing an unlawful abortion include potential first-degree felony charges and fines of at least $100,000 for each violation. Texas also allows civil actions to be brought by private citizens and warned that a district or county attorney could also enforce the state’s pre-Roe abortion laws.
In Gamble’s initial order, she claimed that Cox had a legitimate medical exemption under state law because her doctor “reviewed [the woman’s] medical records and believes in good faith, exercising her best medical judgment, that [an] … abortion is medically recommended … and that the medical exception to Texas’ abortion bans and laws permit an abortion in [her] circumstances.”
However, Paxton said Gamble’s order was not based on “the legal standard” and failed to show any “reasonable medical judgment and a life-threatening physical condition.”
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“The temporary ruling fails to show that [the doctor] meets all of the elements necessary to fall within an exception to Texas’ abortion laws,” Paxton said. “[The judge] is not medically qualified to make this determination and it should not be relied upon. A [temporary restraining order] is no substitute for a medical judgment.”
Texas law prohibits abortions in most circumstances, with an exception when the life of the mother is at risk or she could face serious problems with her physical health.
