Texas Supreme Court stays abortion ruling as new abortion suit filed in Kentucky

By Kate Scanlon

(OSV News) -- The Texas Supreme Court has temporarily stayed a district judge's Dec. 7 ruling in favor of a pregnant mother who sued the state for an exemption to its abortion ban, after arguing her pregnancy would endanger her life and future fertility. The order comes as another woman in Kentucky seeking abortion has filed a suit challenging that state's ban.

The high court's one-page order, issued on the evening of Dec. 8, put a hold on Judge Maya Guerra Gamble's 14-day temporary restraining order, issued Dec. 7, permitting Kate Cox, a 31-year-old mother of two from the Dallas area, to have a "dilation and evacuation" abortion under narrow exceptions to Texas' ban.

The Texas Supreme Court's stay was issued "without regard" for the merits of the case, which is still pending.

In her lawsuit, Cox 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 as well as her hopes for future children. The genetic condition, also known as Edwards syndrome, 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 Texas 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 overturning prior precedent making abortion access a constitutional right. Cox's lawsuit is reportedly the first seeking permission for an abortion from a judge since that ruling.

A second such lawsuit post-Dobbs is now taking place in Kentucky. On Dec. 8, an unnamed Kentucky woman filed a class-action lawsuit against two of that state's abortion bans, one of which makes abortion illegal unless necessary to save the mother's life or to "prevent the serious, permanent impairment of a life-sustaining organ" in her. The state's six-week ban prohibits abortion once the baby's heartbeat has been detected, with exceptions only permitted in case of a medical emergency. The American Civil Liberties Union is among the groups representing the woman, who is approximately eight weeks pregnant and is named in the suit only as "Jane Doe."

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.

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."

Ruling in Cox's favor, Gamble said, "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."

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.

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."

However, Gamble's order had summoned the involved parties for a Dec. 20 hearing to discuss a permanent injunction before her temporary order expired.

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."