AUSTIN, Texas — A Texas woman and mother of two has filed an emergency lawsuit, asking a Travis County judge to allow her to terminate her pregnancy.
This is the first time since before Roe v. Wade was decided in 1973 that an adult woman has asked a court to intervene to allow her to terminate a pregnancy, and the first lawsuit of its kind since Texas banned almost all abortions in 2022.
Kate Cox, a 31-year-old Dallas woman, learned last week that her fetus was diagnosed with full trisomy 18, a chromosomal anomaly that is almost always fatal before or soon after birth. The fetus is developing with an umbilical hernia, a twisted spine, a club foot and an irregular skull and heart, according to the lawsuit.
Cox, who already has two children, both delivered by Cesarean section, also has elevated glucose and underlying health conditions. The lawsuit alleges she is at increased risk of gestational hypertension and diabetes and complications from anesthesia and cesarean section, if she were to carry the pregnancy to term.
“Ms. Cox’s physicians also explained that a C-section at full term would make subsequent pregnancies higher risk and make it less likely she would be able to carry a third child in the future,” the lawsuit says.
“I’m trying to do what is best for my baby and myself, but the state of Texas is making us both suffer,” Cox said in a press release. “I need to end my pregnancy now so that I have the best chance for my health and a future pregnancy.”
Cox received this diagnosis on Nov. 28, the same day the Texas Supreme Court heard arguments in Zurawski v. Texas, a landmark lawsuit in which 20 women and two doctors are challenging Texas’ abortion laws with regards to complicated pregnancies.
The Texas Supreme Court is currently considering that case, which asks whether the state’s abortion bans apply to women carrying non-viable pregnancies like Cox’s. A Travis County judge previously ruled that the laws should not apply to patients with medical complications that could become life-threatening or those who have received lethal fetal diagnoses. The Texas attorney general’s office appealed that ruling, putting it on hold. The state has argued that the law is clear -- and clearly does not allow abortions in cases where the fetus is unlikely to survive after birth.
The high court heard arguments in the case Nov. 28, including the state’s claim that the plaintiffs do not have the legal right to sue, since none of the 20 are currently seeking abortions.
Texas Supreme Court Justice Jeff Boyd asked Assistant Attorney General Beth Klusmann if there was ever a circumstance in which a woman would be able to bring a lawsuit seeking to clarify the law. Klusmann replied that a woman actively seeking an abortion for a lethal fetal anomaly would arguably have standing to sue the attorney general for her specific case.
“And then the defense would be whether or not they intended to enforce it in that circumstance or not, so through the ultra vires, sovereign immunity process, we’d probably hash out some of the merits,” she said. While Klusmann acknowledged that it was likely “impractical” for a woman to file a lawsuit while dealing with a complicated pregnancy, “we don’t bend the rules of standing for practicality.”
As those arguments were happening in Austin, Cox was in the Dallas area, learning her much-wanted pregnancy was unlikely to result in a live baby. In researching her options, she learned about the lawsuit and reached out the Center for Reproductive Rights, which filed both suits. Tuesday’s lawsuit follows the model Klusmann laid out before the justices last week, bringing an ultra vires challenge to the state’s abortion law as it applies to her specific lethal fetal diagnosis.
The lawsuit says that Cox cannot wait for the Supreme Court to rule and asks the judge to grant a temporary restraining order, prohibiting enforcement of Texas’ abortion bans against Cox and her husband, as well as Dr. Damla Karsan, an OB/GYN who has agreed to perform the abortion, and her employees. Karsan is a plaintiff in Zurawski v. Texas as well. Cox’s lawsuit also asks for a declaratory judgement that finds the state’s abortion bans do not apply to patients with emergent medical conditions.
The attorney general's office did not immediately respond to a request for comment.
Texas Right to Life sent KHOU 11 News the following statement.
Pregnant mothers and their babies deserve compassion and love, not to be used as instruments by pro-abortion groups. If a woman’s pregnancy puts her at risk of rupture or future infertility, a doctor can intervene, as clearly described by the “medical emergency” definition in state law that anticipates “serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
This lawsuit from The Center for Reproductive Rights is unnecessary, if not for the group’s intention to allow babies to be aborted for any reason—not just when the mother’s life is at risk.
Ms. Cox’s story is heartbreaking because all of us recognize that she and her child are equally valuable and loved by God. If you feel compassion for this situation like us, it is because we all know that there are two lives at stake and that both are supremely important. The answer is not to end the child’s life because of the baby’s disability, but state law does anticipate the serious risk to the mother.
While we call for better educational and regulatory efforts from medical groups and health agencies to address life-threatening circumstances, Texas has more to offer mothers and their families than abortion. Parents facing a life-limiting fetal diagnosis do not have to walk this road alone. Nonprofits across Texas offer help to honor the child’s life. Visit AbelSpeaks.org to be connected to assistance near you.
This story comes from The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans - and engages with them - about public policy, politics, government, and statewide issues.