Court grants stay to Attorney General’s appeal against lower court order

The Texas Supreme Court on Friday night issued a temporary stay on a lower court order that had allowed a Dallas woman to have an abortion despite the state’s strict laws, after she discovered that her fetus had a fatal condition.

The state’s highest court said it was granting the stay “without regard to the merits” of the arguments from either side, and that it needed more time to reach a final decision.

The stay effectively blocked the order from a Travis County district court judge that had authorized the woman, Kate Cox, to terminate her pregnancy and shielded her doctor from any civil or criminal penalties under Texas’s multiple abortion bans.

Molly Duane, a senior staff attorney at the Center for Reproductive Rights, which is representing Ms. Cox, said they feared that the delay would deny her justice.

Attorney General opposes abortion, cites fetal life

The stay was a response to an appeal from Attorney General Ken Paxton of Texas, who had opposed Ms. Cox’s abortion.

In his appeal, Mr. Paxton urged the court to intervene and argued that if the abortion was allowed, “Nothing can restore the unborn child’s life that will be lost as a result.”

The appeal came hours after the district court judge, a Democrat, had issued a temporary restraining order preventing Mr. Paxton and others from enforcing the state’s overlapping abortion bans against Ms. Cox’s doctor, Damla Karsan, or anyone who helped her provide an abortion to Ms. Cox.

The judge had ruled that Ms. Cox, 31, a mother of two young children living in the Dallas area, qualified for an exception to the state’s abortion bans. Her fetus was diagnosed with trisomy 18, a condition that is fatal in almost all cases; Ms. Cox, who is 20 weeks pregnant, had visited the emergency room several times for pain and discharge during her pregnancy.

Lawyers for woman and doctor challenge Attorney General’s appeal

On Friday, lawyers from the Center for Reproductive Rights, which is also representing Dr. Karsan, filed a response to Mr. Paxton’s appeal with the state’s highest court.

They wrote that the state’s mandamus petition was “stunning in its disregard for Ms. Cox’s life, fertility, and the rule of law.” They asked the court to deny the writ and instruct the Attorney General to comply with the binding orders from a Texas court.

The ruling would only apply to Ms. Cox and her current pregnancy.

Court also considers broader lawsuit on medical exemption

The Texas Supreme Court is also reviewing a separate lawsuit by women and doctors, including Dr. Karsan, and supported by the Center for Reproductive Rights. That lawsuit, Zurawski v. State of Texas, seeks to clarify the medical exemption that would apply statewide. The court heard arguments in that case last month.

The issue of abortion has become a political liability for Republicans in many states, after the U.S. Supreme Court overturned Roe v. Wade last year.

But Mr. Paxton, a Republican who was re-elected last year, has enjoyed strong backing from social and religious conservatives, who helped him win a third term and survive a Republican-led impeachment trial against him.

Matt Mackowiak, the head of the Travis County Republican Party, said Friday that “The political winds are at his back right now.”

Texas Attorney General Threatens Hospitals Over Abortion Case

Ken Paxton, the attorney general of Texas, has intervened in a legal dispute over a woman’s right to an abortion, warning three hospitals that they could face legal consequences if they allow the procedure to take place.

The Background of the Case

The woman, Ms. Cox, is 14 weeks pregnant and suffers from placenta accreta, a condition that causes the placenta to grow into the uterine wall and can lead to life-threatening bleeding during delivery. Her doctor, Dr. Karsan, has recommended an abortion to protect her health and fertility, but the state’s abortion bans prevent her from obtaining one.

Ms. Cox filed a lawsuit against the state, seeking an emergency order to allow her to have an abortion. A federal judge granted her request, but Mr. Paxton appealed to the Texas Supreme Court, arguing that the order was invalid and that the state’s laws were constitutional.

The Letter and the Filings

Mr. Paxton also sent a letter to three Houston hospitals where Dr. Karsan has admitting privileges, informing them that the judge’s order would not protect them from criminal or civil liability if they performed or facilitated the abortion. He claimed that the order would not stop state officials or private citizens from enforcing the state’s laws once the order was overturned.

He repeated this argument in his filings to the Texas Supreme Court, saying that “nothing will prevent enforcement of Texas’s civil and criminal penalties once the T.R.O. erroneously prohibiting enforcement is vacated.”

The Response and the Impact

Two of the hospitals did not comment on Mr. Paxton’s letter. A spokeswoman for the third hospital confirmed that Dr. Karsan had admitting privileges, but stated that the hospital was “not involved in this case.”

Mr. Paxton’s letter and filings created a dilemma for Ms. Cox, her doctor, and others involved in her care, who faced the risk of prosecution or lawsuits if they proceeded with the abortion. The letter also put Dr. Karsan “in an awful position,” according to Judy Levison, a obstetrician-gynecologist in Houston who knows Dr. Karsan. She said that Mr. Paxton was “trying to intimidate somebody to not act.”

The Context and the Statistics

In Texas, the attorney general does not have the power to bring criminal charges directly under the abortion bans, and must rely on local district attorneys to do so. So far, no doctors or providers have been prosecuted for performing an abortion in Texas, and only a handful 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 some cases, doctors have gone ahead with abortions after determining they were necessary and allowed under the law. Dr. Levison noted that “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.”

According to state health statistics, Texas recorded 34 abortion procedures across the state in the first nine months of the year. In 2020, before the first of the severe state restrictions went into place, there were more than 50,000.