Recent Developments Under Texas’ Abortion Law

On Monday December 11, 2023, the Texas Supreme Court overturned a temporary restraining order that had granted Kate Cox permission to obtain an emergency abortion, ruling Ms. Cox’s doctor did not show she qualified for a medical exception to the state’s abortion ban.

Texas law currently bans all abortions unless, “in the exercise of reasonable medical judgment,” a doctor determines that the patient is experiencing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” Tex. Health & Safety § 170A.002.  Notably, the Texas law reflects the same standard generally used by physicians when determining whether a medical emergency exists regardless of the underlying medical problem.  In other words, physicians are well trained to make these determinations and do so day in and day out.

This case began the week prior when Ms. Cox, her husband, and Ms. Cox’s doctor sued Texas for permission to obtain an emergency abortion after receiving a fatal diagnosis for her unborn child and suffering serious complications.  Specifically, Ms. Cox was 20 weeks pregnant with a fetus that had been diagnosed with Trisomy 18, a rare chromosomal condition likely to cause stillbirth or the death of a baby shortly after birth.

Prior to filing her petition, Ms. Cox had been to the emergency room four times with symptoms that included leaking fluid, elevated vital signs, and cramps.  According to Ms. Cox’s legal team, she was at high risk for multiple pregnancy complications, including hypertension, gestational diabetes, and infection, and continuing with the pregnancy would pose significant risks to Ms. Cox’s life and future fertility.  On December 7, two days after Ms. Cox filed her case, the trial court judge signed a temporary restraining order, which prevented the state, Texas Attorney General Ken Paxton, and the Texas Medical Board from enforcing the state’s abortion ban if Ms. Cox were to terminate her pregnancy.  The order also protected Ms. Cox’s husband and doctor from prosecution or fines related to Ms. Cox’s abortion care.

Kate Cox’s victory was short lived, however, because the state Supreme Court issued a temporary stay the next day, at the request of Texas Attorney General Ken Paxton.  Before the stay was granted, Paxton warned Ms. Cox’s physician that despite the trial court’s ruling, she could still face civil and criminal penalties if she proceeded with an abortion. Such threats seem overreaching and appear to undermine the medical emergency exception under the Texas abortion law.

After further delay waiting for the Supreme Court to rule, the Texas Supreme Court on December 11, 2023 issued its opinion directing the trial court to vacate the temporary restraining order making an abortion for Ms. Cox illegal in Texas.  In its opinion, the Court wrote that a person does not need a court order to have an abortion if their doctor, exercising reasonable medical judgment, determines that the circumstances satisfy the statutory exception.  The Court went on to say that “[t]he 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” and here, Ms. Cox’s doctor “could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.” The Court found Ms. Cox’s doctor’s attestation insufficient because she did not specifically say her opinion was based on “reasonable medical judgment.” The Court wrote that by accepting Ms. Cox’s doctor’s assertion that she had a “good faith belief” that Ms. Cox met the exception’s requirement, the trial court “appl[ied] a different, lower standard” than what is required under the statute.  One can question whether the Texas Supreme Court would have accepted such an attestation or there would have been other cause for denying Ms. Cox’s abortion even if such language were present.

Cox’s case has several significant implications.  First, it makes clear that any exceptions to Texas’s abortion ban (and similar bans enacted in other states) are extremely limited and clearly, open to second guessing.  In its opinion, the Texas Supreme Court noted that “[s]ome difficulties in pregnancy … even serious ones, do not pose the heightened risks to the mother the exception encompasses,” suggesting that health challenges like those Ms. Cox faced – including risks to future pregnancies – don’t qualify under the statutory exception.  Here, the Supreme Court seems to be deviating from the standard medical definition and creating one where the bar itself may put women at greater risk.

Second, despite doctors begging for direction on how to apply these vague statutory exceptions, it is unlikely that they will receive any such guidance, at least in Texas.  Since the overturning of Roe v. Wade, doctors have been asking for help interpreting statutory exceptions to abortion bans.  For example, at what point does a condition go from being non-life-threatening to life-threatening?  What is a substantial, serious, or major bodily function, as opposed to a minor bodily function?  While the Texas Supreme Court acknowledged that doctors are confused about which cases pass legal muster, it declined to provide any clarity and merely suggested, but did not compel, the Texas Medical Board to issue further guidance.  However, whether or not the courts will ultimately defer to medical guidelines developed by physicians or medical boards is questionable given the willingness of courts to second guess the judgment of the Federal Drug Administration and its scientists as it relates to the use of mifepristone.  The legal challenge to mifepristone and the ensuing ruling on appeal have been the subject of prior Dobbs alerts.

This ruling suggests that future attempts to get a court’s pre-authorization to perform an abortion under the medical exception law could be struck down, at least in Texas.  Thus, this case confirms the untenable position that doctors are in – they do not know how to interpret and apply these medical exception laws, they cannot receive pre-authorization from a court confirming whether a specific case meets the requirements for an exception, and if they perform an abortion based on a good faith belief it is needed but are later deemed to have gotten it wrong they can face decades in prison and hundreds of thousands of dollars of fines.  To avoid this conundrum, doctors may simply refrain from providing abortion care at all.  As a result, women will be denied life-saving abortions and medical exceptions to abortion bans will be rendered meaningless.  

Lastly, Ms. Cox’s case may be the beginning of a new wave of legal challenges to abortion bans.  While abortion-related litigation is not new, to date, most cases challenging abortion bans have been brought on behalf of women who were denied abortion care in the past and suffered severe and dangerous pregnancy complications as a result.  Rather than seeking relief related to a specific ongoing pregnancy, these cases present broader arguments that state laws are unworkable or unconstitutional.  An example of this type of litigation is Zurawski v. State of Texas, which was filed in March on behalf of five Texas women who were previously denied abortion care (fifteen additional women have since joined the lawsuit) and two Texas obstetrician-gynecologists.  This lawsuit, which was filed by the Center for Reproductive Rights, seeks to clarify the scope of the medical exception to Texas’s abortion ban.  Ms. Cox’s lawsuit, however, is believed to be the first time a pregnant patient has sought a court’s permission to obtain an abortion since Roe was overturned.  Experts expect to see more of these types of lawsuits filed around the country.  In fact, on December 8, a Kentucky woman who was eight weeks pregnant filed a similar lawsuit challenging Kentucky’s near total ban on abortion.  While this ruling from the Texas Supreme Court foreshadows the fate of these cases in Texas, it remains to be seen whether this approach will be effective in other states.

As new developments arise, we will continue to update our Dobbs Decision Resource Center.  In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.