Texas judge grants exception to state abortion ban

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TEXAS ABORTION CLINIC
A patient exam room sits empty at Alamo Women's Reproductive Services in San Antonio Aug. 16, 2022. A Texas judge ruled Dec. 7, 2023, in favor of a pregnant mother who sued the state to abort her baby with Trisomy 18, claiming carrying the pregnancy to term was also putting her life at risk. (OSV News photo/Callaghan O'Hare, Reuters)

(OSV News) — A Texas judge ruled Dec. 7 in favor of a pregnant mother who sued the state to seek an exemption to its abortion ban after she argued that continuing with her pregnancy would endanger her life and future fertility.

In a lawsuit by Kate Cox, the 31-year-old mother of two from the Dallas area sought permission from a judge to undergo an abortion after her unborn baby was diagnosed with Trisomy 18, alleging the pregnancy was also putting her life at risk. The genetic condition often leads to miscarriage and stillbirth, with a 90-95% mortality rate for babies within the first year after birth. Her attorneys said that earlier the same week, Cox, who is 20 weeks pregnant, went to an emergency room for a fourth time during her pregnancy.

The lawsuit is seen as an unprecedented challenge to a state abortion ban since the U.S. Supreme Court issued its June 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned prior precedent making abortion access a constitutional right, notably Roe v. Wade. Cox’s lawsuit is reportedly the first seeking permission for an abortion from a judge since that ruling.

Following the Dobbs decision, which returned the matter of regulating or restricting abortion back to the legislative branch, U.S. Catholic bishops have reiterated the Church’s concern for both mother and child, while emphasizing Catholic teaching that all human life is sacred and must be respected from conception to natural death. As such, the Church opposes direct abortion as an act of violence that takes the life of the unborn child.

Decision for a hospital, not courtroom

State District Judge Maya Guerra Gamble granted a 14-day temporary restraining order permitting Cox to have a “dilation and evacuation” abortion under narrow exceptions to Texas’ ban.

“The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice,” Gamble said.

In a recent editorial published in The Dallas Morning News, Cox wrote, “An abortion was not something I ever imagined I would want or need; I just never thought I’d be in the situation I’m in right now. Twenty weeks pregnant with a baby that won’t survive and could jeopardize my health and a future pregnancy.”

“I do not want to continue the pain and suffering that has plagued this pregnancy or continue to put my body or my mental health through the risks of continuing this pregnancy,” Cox wrote. “I do not want my baby to arrive in this world only to watch her suffer.”

Katie Daniel, state policy director for SBA Pro-Life America, told OSV News that it is “shocking that a judge would basically create her own judicial bypass around the state’s law to allow for a baby with a beating heart to be aborted.”

Daniel argued that the Texas law does have an exception “for life-saving medical care in the case of an emergency,” but such a circumstance would be one for a hospital to decide rather than a courtroom.

“This mother deserves compassion and care for her and her child, not to be shoved towards abortion,” Daniel said.

True health care for the mother

Chelsey Youman, Human Coalition’s national director of public policy, told OSV News in an email that “A child in the womb is a human being and has the right to live, and this right must always be protected under the law no matter the child’s diagnosis.”

“True health care for the mother must be life-affirming, and never involves a direct abortion which intends the death of her child,” Youman said. “We want to emphasize that our hearts go out to this mother in her difficult situation, and support her receiving the highest quality prenatal care and life-affirming support. Instead of being exploited for political gain by abortion advocates challenging Texas laws, she deserves real health care. Texas law before, during and after Roe has always safeguarded women and their children facing these challenging circumstances.”

The state may decide to appeal, as it argued Cox did not meet the criteria for a medical exception.

The office of Texas Attorney General Ken Paxton issued a Dec. 7 statement — with an accompanying letter to three Houston hospitals — saying the judge’s temporary restraining order allowing Cox to obtain an abortion “will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws.”

Gamble’s order also summoned the involved parties for a Dec. 20 hearing to discuss a permanent injunction.

Kate Scanlon

Kate Scanlon is a national reporter for OSV News covering Washington.