Texas Woman Sues State to Authorize Emergency 20-Week Abortion

A Texas woman who needs an abortion “now” sued the state Tuesday, seeking an order that will allow her to have an emergency procedure that likely would be illegal under Texas’ six-week abortion ban.

Kate Cox is 20 weeks pregnant and has been told that her pregnancy is unlikely to end in a healthy birth, a complaint filed in Travis County District Court says.

According to the complaint, Cox’s doctors have told her that she is at risk for severe complications that threaten her life and her future ability to bear a child unless she ends the pregnancy. But the doctors have also said that their “hands are tied” because of Texas law, Cox says.

She’ll have to wait either until her baby dies in utero or carry the pregnancy to term, “only to watch her baby suffer until death,” Cox says. Prenatal testing has confirmed that the baby has a genetic condition that means it likely won’t live until birth or for only a short time afterward, she says.

Cox asked the trial court to issue a temporary restraining order that will allow her to have an abortion.

The complaint named Texas, Attorney General Ken Paxton (R), the state’s medical board, and the board’s executive directors as defendants. Paxton’s office didn’t immediately respond to Bloomberg Law’s request for comment.

Cox said she’s aware that the Texas Supreme Court recently heard oral arguments in a lawsuit brought by several women who were denied emergency abortion care due to the current state law. But she doesn’t have time to wait until the court decides the case, she says.

And, although the state said during oral arguments that a doctor could provide an abortion to a patient with a fatal fetal diagnosis if there was some evidence of a substantial impairment of a major bodily function, the state hasn’t otherwise clarified what that means, Cox says.

“All the while, pregnant Texans like Ms. Cox have continued to suffer,” the complaint says.

Cox asked for a declaratory judgment that an exception in Texas’ abortion law allows doctors to perform abortions when the patient has an emergency medical condition that poses a risk of death or a danger to the patient’s health.

Alternatively, the court should find that an abortion is permitted when continuing a pregnancy would be unsafe, exacerbate an existing medical condition that can’t be effectively treated during pregnancy, or the fetus isn’t likely to survive until birth or afterward, Cox says.

The Texas law, as applied in these circumstances, violates fundamental rights guaranteed by the state constitution, including equal protection, freedom from cruel and unusual punishment, and the due process rights of physicians, Cox says.

Travis County includes Austin, the state’s capital.

Kaplan Law Firm PLLC, the Center for Reproductive Rights, and Morrison & Foerster LLP represent Cox.

The case is Cox v. Texas, Tex. Dist. Ct., No. unavailable, filed 12/5/23.