From the state’s highest court came a wrench for a Dallas mother of two previously granted permission to end her high-risk pregnancy.
The Texas Supreme Court issued a stay late Friday after an Austin judge issued a temporary restraining order the day before, allowing Kate Cox to get an abortion.
It came after doctors told the 31-year-old that her daughter would be born with trisomy 18, meaning she’d likely be stillborn and would live a week at most.
They said delivery could also prevent Cox from having another child.
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Cox spoke with NBC News shortly after that decision, saying that while she never thought she’d need or want an abortion, she was ready to move forward.
“I want the opportunity to get the healthcare I need and heal and then, you know, try again,” said Cox.
In the wake of the decision, Attorney General Ken Paxton issued a warning to hospitals, saying the TRO would not insulate them from civil or criminal liability.
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He then issued a petition, asking the Supreme Court of Texas to step in.
In it he wrote, “Contrary to the strict requirements of the statute, the court granted the TRO on the feeble basis that the plaintiff physician “believe[d] in good faith” that an abortion is “recommended.” The district court’s circumvention of the basic requirements of the statute opens the floodgates to pregnant mothers procuring an abortion through a doctor who need only “believe in good faith” that an abortion is “recommended, ” and not necessary to avert a risk of death or impairment of a major bodily function.”
In an unusual move, in what constitutional law expert David Coale said has been an overall unusual process, the court issued a stay.
“The supreme court was interested and issued an immediate order that said, everybody hold their horses,” said Coale.
Coale said it’s likely the court will be quick to issue an opinion, though he doubts it will be a straightforward yea or nay.
“What I suspect they're going to do is write some kind of order that kind of splits the difference, that says, we don't want to get in the business of reviewing TROs because we have enough to do already. But on this particular one, we're going to make these observations without necessarily ruling one way or the other. And those observations, I think, will be things like, you're proceeding at your own peril here. The temporary injunction may not go the way you think it will, hospitals, you need to be very careful,” he said.
Cox’s legal team with the Center for Reproductive Rights responded to last night’s decision with a statement from senior staff attorney Molly Duane:
“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. We are talking about urgent medical care. Kate is already 20 weeks pregnant. This is why people should not need to beg for healthcare in a court of law.”
But though centered around Cox and her personal decision, Coale said the court will consider that this case, one of the first brought under new abortion laws, is also about procedure.
“If this gets traction, a lot of people are going to go to court. That, by the way, is going to be a consideration on the Supreme Court's mind. If we do something in this case, what's it going to mean for the next case and the next case and the hundredth case after that? Are we about to invite 200 new cases in the door?” said Coale. “If we have to, we have to. But if the legislature didn't tell us to do that, we're probably not going to go out of our way to do that. They're going to tend to be cautious about opening up the doors of the courthouse.”
