The Texas supreme court on Monday overturned a lower court’s ruling that would have allowed a pregnant woman to get an emergency abortion under the medical exception for the state’s near-total abortion ban, granting a petition by Republican attorney general Ken Paxton.
The ruling from the Texas supreme court came hours after lawyers for the woman, Kate Cox, said in a court filing that she had left the state to obtain the abortion, but nonetheless wanted to pursue the case.
The court said in its unsigned opinion that a “good faith belief” by Damla Karsan, a doctor who sought to perform the abortion and sued alongside Cox, that the procedure was medically necessary was not enough to qualify for the state’s exception.
Instead, the court said, Karsan would need to determine in her “reasonable medical judgment” that Cox had a “life-threatening condition” and that an abortion was necessary to prevent her death or impairment of a major bodily function.
“The law leaves to physicians – not judges – both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient,” the court wrote.
The court is also considering a separate case brought by 22 women who experienced pregnancy complications over the scope of the medical exception, though none of those women was seeking an immediate abortion. Monday’s ruling appeared to reject a key argument by the plaintiffs in that case – that doctors’ good-faith belief should be enough to meet the exception.
“Kate’s case has shown the world that abortion bans are dangerous for pregnant people, and exceptions don’t work,” Nancy Northrup, president of the Center for Reproductive Rights, which represents Cox, said earlier on Monday. The group did not immediately respond to a request for comment on Monday’s decision.
Paxton’s office did not immediately respond to a request for comment.
Cox’s fetus was diagnosed on 27 November with trisomy 18, a genetic abnormality that usually results in miscarriage, stillbirth or death soon after birth.
Paxton had urged the Texas supreme court to quickly step in after district court judge Maya Guerra Gamble at a hearing in Austin last Thursday issued a temporary restraining order allowing Cox to have an abortion. Cox says her continued pregnancy threatened her health and future fertility.
The case has been a major test of the scope of the medical exception to Texas’s abortion ban.
Cox, 31, of the Dallas-Fort Worth area, filed a lawsuit last Tuesday seeking a temporary restraining order preventing Texas from enforcing its near-total ban on abortion in her case.
Cox’s lawyers have said her lawsuit is the first such case since the US supreme court last year reversed its landmark 1973 Roe v Wade ruling, which had guaranteed abortion rights nationwide.
Cox, who was about 20 weeks pregnant when she first sued, said in her lawsuit that she would need to undergo her third caesarian section if she continues the pregnancy. That could jeopardize her ability to have more children, which she said she and her husband wanted.
Cox said in her lawsuit that although her doctors believed abortion was medically necessary for her, they were unwilling to perform one without a court order in the face of potential penalties including life in prison and loss of their licenses.
Paxton warned in a letter sent shortly after Gamble issued the order that it did not shield doctors, hospitals or anyone else from prosecution for violating Texas’s abortion laws. The letter was sent to three hospitals where Karsan, the doctor who said she would provide the abortion to Cox, has admitting privileges.
