The Texas Supreme Court late Friday temporarily halted a lower court order allowing a Dallas woman to obtain an abortion in spite of the state’s strict bans, after she learned her fetus has a fatal condition.
The state court’s ruling was in response to an appeal from Attorney General Ken Paxton of Texas, who opposed the woman’s abortion.
The Supreme Court said that, “without regard to the merits” of the arguments on either side, it had issued an administrative stay in the case, to give itself more time to issue a final ruling.
The stay meant that, for the moment, the order from a judge in Travis County district court permitting the abortion was on hold. That order allowed the woman, Kate Cox, to obtain an abortion and protected her doctor from civil or criminal liability under Texas’s overlapping abortion bans.
“We fear that justice delayed will be justice denied,” said Molly Duane, a senior staff attorney at the Center for Reproductive Rights, which is representing Ms. Cox.
The action by the Texas Supreme Court was the latest twist in an unusual saga unfolding over the state’s abortion bans, which are some of the strictest in the nation, about what is and what is not permitted under their medical exceptions.
In his appeal, Mr. Paxton urged the court to act and wrote that if an abortion was allowed,
“Nothing can restore the unborn child’s life that will be lost as a result.”
While the Texas bans allow for exceptions to protect the health and life of a pregnant woman, doctors have said that vague legal language created fear of prosecution and an unwillingness to perform abortions.
Mr. Paxton’s filings came hours after district court judge, issued a temporary restraining order barring Mr. Paxton and others from enforcing the state’s overlapping abortion bans against Ms. Cox’s doctor, Damla Karsan, or anyone who assisted her with providing an abortion to Ms. Cox.
In granting the order, the judge, a Democrat, found that Ms. Cox, 31, a mother of two young children living in the Dallas area, met the criteria for an exception to the state’s abortion bans. Her fetus was diagnosed with trisomy 18, a fatal condition in all but a small number of rare cases; Ms. Cox, who is 20 weeks pregnant, had been to the emergency room several times for pain and discharge during her pregnancy.
On Friday, lawyers from the Center for Reproductive Rights, which is also representing Dr. Karsan, filed a response to Mr. Paxton with the state’s highest court.
“The State’s mandamus petition is stunning in its disregard for Ms. Cox’s life, fertility, and the rule of law,” the lawyers for Ms. Cox wrote. “Plaintiffs respectfully request that this Court deny the writ and instruct the Attorney General to comply with binding orders from a Texas court.”
A spokeswoman for the Center for Reproductive Rights said a decision could come as soon as later in the day. A ruling would apply only to Ms. Cox and her current pregnancy.
Separately, the Texas Supreme Court has also been considering a broader lawsuit by women and doctors, including Dr. Karsan, and backed by the Center for Reproductive Rights. That suit, Zurawski v. State of Texas, seeks to clarify the medical exemption that would apply across the state. Arguments in that case took place last month.
After the U.S. Supreme Court overturned Roe v. Wade last year, the issue of abortion has become a political liability for Republicans in many states.
But Mr. Paxton, a Republican re-elected last year, has relied on strong support from social and religious conservatives, who helped him both return to office for a third term and survive a Republican-led impeachment trial against him.
“The political winds are at his back right now,” Matt Mackowiak, the head of the Travis County Republican Party, said Friday.
Mr. Paxton has gained national prominence among hard-right conservative activists and voters for his willingness to use legal action, as well as official opinions and official letters, to advocate for their causes — including backing the effort to overturn the 2020 presidential election and declaring that certain medical care for transgender youth constitutes “child abuse.”
His appeal to the Texas Supreme Court in Ms. Cox’s case followed his letter to three Houston hospitals where he said Dr. Karsan is authorized to admit patients and could perform the abortion, warning them that the judge’s order would not shield them from eventual prosecution or civil lawsuits.
Lawyers for Dr. Karsan have said in legal filings that she believes her patient’s abortion is medically necessary to preserve her health and future fertility.
But in his letter, Mr. Paxton warned the order would not constrain state officials or private citizens from filing criminal or civil lawsuits against the hospital or others, such as Ms. Cox’s husband, who might help her obtain an abortion.
He reiterated that position in his filings to the Texas Supreme Court.
“Nothing will prevent enforcement of Texas’s civil and criminal penalties once the T.R.O. erroneously prohibiting enforcement is vacated,” the filings from his office read.
Two of the hospitals targeted by Mr. Paxton in his letter did not respond to a request for comment. A spokeswoman for a third hospital confirmed that Dr. Karsan had admitting privileges but said that the hospital was “not involved in this case.”
Mr. Paxton’s letter, and his subsequent legal filings, appeared to thrust Ms. Cox, her doctor and others involved in her care back into the same state of uncertainty and fear of prosecution that had prompted the initial lawsuit.
The letter puts Dr. Karsan “in an awful position,” said Judy Levison, a obstetrician-gynecologist in Houston who has known Dr. Karsan for years. “They named her and so, it’s intimidating,” she added. “It’s trying to intimidate somebody to not act.”
In Texas, the attorney general does not have the ability to bring criminal charges directly under the abortion bans and must instead rely on local district attorneys to do so.
No doctors or providers have been prosecuted for performing an abortion in Texas, and only a very small number of civil lawsuits have been filed under a 2021 state law, Senate Bill 8, that allowed for lawsuits against those who assist with abortions.
In a few cases, doctors have gone forward with abortions after determining they were necessary and permitted under the law.
“There are hospitals in Texas similar to this where abortions have been done, and hospitals have supported their doctors, and it hasn’t been in the public eye,” Dr. Levison said.
Through the first nine months of the year, Texas recorded 34 abortion procedures across the state, according to state health statistics. In 2020, before the first of the severe state restrictions went into place, there were more than 56,000.
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