UPDATE, 12/7/23, 2 P.M.:This story has been updated to include the response from Texas Attorney General Ken Paxton, as well as a response to Paxton's statement from the Center for Reproductive Rights.
Within hours of a state judge's order Thursday clearing the way for Kate Cox to have an abortion, Texas Attorney General Ken Paxton fired off a letter to The Methodist Hospital in Houston threatening felony charges against the hospital, doctors or anyone else who performs the procedure.
The letter warned that the hospital should ignore the ruling from what Paxton called an "activist judge".
"We feel it is important for you to understand the potential long-term implications if you permit such an abortion to occur at your facility." Paxton wrote. "...The [temporary restraining order] will not insulate you, or anyone else, from civil and criminal liability for violating Texas' abortion laws, including first-degree felony prosecutions."
The letter essentially attempts to close the courthouse door for Cox, who requested a temporary restraining order so that she can be allowed to have an abortion instead of carrying her 20-week pregnancy to full term following a diagnosis of Trisomy 18 last week. Cox was told by her doctors that her baby “had no chance of survival,” due to the condition, also known as Edwards syndrome, which is caused by a duplicate chromosome that results in multiple structural abnormalities. When the judge announced her decision, Kate Cox, sitting next to her husband, Justin, and sharing a space in the Zoom gallery of the virtual hearing, showed slight but visible signs of emotion.
When reached for comment, Mark Hearron, senior counsel for the Center for Reproductive Rights, emailed a statement to the Observer, saying: “Fearmongering has been Ken Paxton's main tactic in enforcing these abortion bans. Rather than respect the judiciary, he is misrepresenting the court’s order. He attacks the judge who rules against him as an 'activist judge'. He is trying to bulldoze the legal system to make sure Kate and pregnant women like her continue to suffer.”
It is believed to be the first such lawsuit in Texas after the state banned almost all abortion procedures in 2022 following the Supreme Court decision to overturn Roe v. Wade. The emergency hearing lasted about 30 minutes and involved Cox’s attorney convincing the judge that her client met the requirement needed to fit within the state’s medical exemption as it pertains to abortion.
Cox enlisted the help of the Center for Reproductive Rights when she discovered the group had helped bring Zurawski v. State of Texas before the state Supreme Court. That case, which is awaiting a ruling, involves more than 20 Texas women who say they have faced risks to their health, fertility and lives as the result of the state’s abortion laws.
“I am a Texan. Why should I or any other woman have to drive or fly hundreds of miles to do what we feel is best for ourselves and our families, to determine our own futures?” Cox wrote in a Dallas Morning News op-ed on Wednesday. “I’m trying to do what is best for my baby daughter and myself and my family, but we are suffering because of the laws in Texas.”
From the judge's ruling in Cox v. Texas today: "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."
— Center for Reproductive Rights (@ReproRights) December 7, 2023
In the Thursday emergency hearing, the state’s attorney, Johnathan Stone, argued that Cox did not meet the strict requirements for a medical exemption simply because her future fertility might be at risk, and that this request represented an improper use of a temporary restraining order, since Cox’s abortion would be permanent. Cox’s attorney Molly Duane responded by saying the state “moves the goal post” in terms of exception eligibility and that it seemed as though the state felt that Cox wasn't “close enough to death” for them to grant her the exception.
The judge was adamant in her decision on granting a temporary restraining order so that Cox, her husband and their doctor can move ahead without fear of prosecution.
“The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability, is shocking and would be a genuine miscarriage of justice,” said Judge Maya Guerra Gamble of the 459th District Court. “I will be signing the order and it will be processed and sent out today.”
