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Texas Supreme Court explains why it did not permit the abortion of a baby with Trisomy 18

by | Dec 12, 2023

By Dave Andrusko

You’ve read Texas Right to Life’s sad outcome of the case of the unborn baby with Trisomy 18: “The pro-abortion group the Center for Reproductive Rights reported Monday that a Dallas woman left Texas to abort her preborn daughter, who is at the center of a legal battle on the state’s Pro-Life laws.”

Background

Travis County District Judge Maya Guerra Gamble “ruled Thursday that neither [Kate] Cox, nor her husband or OB/GYN, should be criminally or civilly penalized for terminating her pregnancy,” The Texas Tribune reports“Texas Attorney General Ken Paxton filed an emergency petition, asking the state Supreme Court to overturn that ruling. On Friday night, the high court put Guerra Gamble’s order on hold while they considered the merits of the case.”

Even though Ms. Cox left the state to have her baby aborted, “The Center for Reproductive Rights told the Texas Supreme Court that it intended to continue litigating her case, despite Cox no longer seeking an abortion within Texas,” Eleanor Klibanoff reported. “A few hours later, the court issued its ruling, overturning the temporary restraining order.”

The reasoning of the state Supreme Court is important because, doubtless, the Center for Reproductive Rights will bring another similarly difficult case.

Here are five points in the decision:

#1. ”No one disputes that Ms. Cox’s pregnancy has been extremely complicated. Any parents would be devastated to learn of their unborn child’s trisomy 18 diagnosis. Some difficulties in pregnancy, however, even serious ones, do not pose the heightened risks to the mother the exception encompasses.”

#2. The law does not “ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available. Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day.”

#3. “In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception. But when she sued seeking a court’s pre-authorization, Dr. Karsan did not assert that Ms. Cox has a ‘life-threatening physical condition’ or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires.”

#4. “An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion. A pregnant woman does not need a court order to have a lifesaving abortion in Texas. Our ruling today does not block a life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard, using reasonable medical judgment. If Ms. Cox’s circumstances are, or have become, those that satisfy the statutory exception, no court order is needed. Nothing in this opinion prevents a physician from acting if, in that physician’s reasonable medical judgment, she determines that Ms. Cox has a ‘life-threatening physical condition’ that places her ‘at risk of death’ or ‘poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.’”

#5. Finally, “To obtain injunctive relief at this early stage, however, the parties seeking relief must demonstrate both that the trial court possessed jurisdiction and that they are likely to prevail on the merits. The failure of either means that temporary injunctive relief against the State is unavailable. Because we conclude that the Coxes have not demonstrated that they are entitled to relief, we refrain at this stage from determining the jurisdictional challenges the State presents.”

Categories: Judicial
Tags: Texas