(NEW YORK) — A Texas mother of two says she “desperately” wants a chance to try for a third child but is in jeopardy of losing her uterus due to Texas’ abortion bans. She is currently carrying a pregnancy with virtually no chance the baby will survive to birth or long afterwards and said she has been denied the safest form of abortion care for her — a dilation and evacuation procedure.
She is now asking a court to allow her to get abortion care in her home state. She is set to appear remotely in an emergency hearing on Thursday. Her attorneys expect a ruling during the hearing. Her lawsuit stands apart from another ongoing lawsuit filed by 20 women who say their lives were put in danger by the bans.
Days after the Center for Reproductive Rights’ lawyers appeared before the Texas Supreme Court arguing for an injunction on the state’s abortion bans, attorneys filed a second lawsuit that happened to hit back at one of the state’s arguments against them — that women filing the suit were not seeking appropriate emergency response from the state because they are not currently in emergencies that require abortion care.
Kate Cox, a Texas woman, filed an emergency lawsuit against the state of Texas seeking a temporary restraining order on Texas’ abortion bans in her case, so she can be provided with the abortion care she seeks.
Cox “needs urgent abortion care due to a lethal fetal diagnosis and threats to her life, health, and fertility from continuing the pregnancy,” according to a press release from the CRR.
A CRR attorney told ABC News that the new lawsuit was “not strategic” or in response to arguments made by the state last week.
“She called us after the Texas Supreme Court argument, because she got the amniocentesis results, and she’s been having health conditions going on right now. Whereas the other plaintiffs were talking about things that happened to them throughout the last couple of years dealing with Texas abortion bans,” Marc Hearron, senior counsel at CRR, told ABC News.
Texas has multiple abortion bans in place and is one of 16 states that have ceased nearly all abortion services since the U.S. Supreme Court issued a decision overturning Roe v. Wade, ending federal protections for abortion rights.
Texas’ bans include exceptions that allow abortions in cases of medical emergencies and fatal fetal diagnoses, but doctors and patients claim, in another lawsuit filed in March, that they are unable to provide care or have been denied care, respectively, under the laws. Under Texas’ bans, it is a second-degree felony to perform or attempt an abortion, punishable by up to life in prison and a fine of up to $10,000. The law also allows private citizens to sue anyone who “aids or abets” an abortion.
Plaintiffs allege that the laws are confusing and do not define the exception to bans — which allow abortions to save the life of the mother or preserve bodily function — and wager significant penalties against doctors, up to life in prison.
Suit alleges Cox’s health is at risk
In a new lawsuit filed Tuesday, Cox said she has been unable to get an abortion due to Texas’ multiple abortion bans. Cox’s baby has received a diagnosis that her baby has full Trisomy 18, which is a condition with a very high likelihood of miscarriage or stillbirth and low survival rates, according to Cox’s lawsuit.
According to Hearron, Cox has been told by physicians that they can provide her with an induction of labor if the baby’s heart stops beating. Cox — already a mother of a 3-year-old and a 1-year-old — has had two cesarean deliveries, and was told that an “induction carries serious risk of uterine rupture,” according to the lawsuit.
“I do not want to put my body through the risks of continuing this pregnancy. I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days, full of medical tubes and machinery,” Cox said in the lawsuit.
“Trisomy 18 babies that survive birth often suffer cardiac or respiratory failure. I do not want my baby to arrive in this world only to watch her suffer a heart attack of suffocation. I desperately want the change to try for another baby and want to access the medical care now that gives me the best chance at another baby,” Cox said in the lawsuit.
The CRR also alleged that Cox’s health is at risk and that she “risks debilitating health complications” if she continues her pregnancy, including potential loss of fertility.
“If Kate is not allowed to have an abortion in Texas, she will be forced to continue the pregnancy until she either miscarries or gives birth to a stillborn or to a baby that could live only minutes. Her only other option is to try to flee the state,” the CRR said in a release.
“Kate’s OB-GYNs have warned her of dire consequences to her health should she continue the pregnancy. The lawsuit asks the court to temporarily halt Texas’ abortion bans as they apply to Kate and her husband Justin Cox, who fears liability under S.B. 8–Texas’ vigilante abortion ban,” the CRR said.
Cox’s hearing in Texas court is scheduled for 10 a.m. ET, according to the CRR.
State argues 20 women don’t have standing
In court, prosecutors argued that the 20 women filing a suit claiming Texas’ abortion bans put their lives in danger do not have standing to ask a court for relief because they are asking for “generalized” relief.
“If the Court were to say what the trial court said, and then they had a patient with a new circumstance does this resolve that question? I’m not sure if it would or not,” said Beth Klusmann, the prosecutor who made arguments on behalf of the state.
Klusmann was asked by a justice if the state’s position is that they want a woman who is pregnant and has a health condition she believes meets the exceptions to the abortion bans to file a lawsuit in order for her suit to have standing the state, to which Klusmann responded that such a patient would have standing, although it may not be the only circumstance in which a woman would have standing.
“You would at least then know that the law is the problem and not the doctor refusing to perform an abortion that otherwise would normally fall within the law. I mean that’s also part of the concern here is that some of these women appear to have fallen within the exception but their doctors still said no, that’s not the fault of the law. That’s that’s a decision of the doctor,” Klusmann said.
A prosecutor appearing on behalf of the state also argued that the state has sovereign immunity — meaning that it cannot be sued unless the legislature permits such a suit.
The Texas Supreme Court has not yet issued a decision on whether it will allow the lawsuit filed by 20 women and two OB-GYNs will be allowed to continue, or if it will allow a preliminary injunction suspending implementation of the bans in cases of medical emergencies and fatal fetal anomalies. A decision is expected sometime before June 2024.
Hearron said that in the CRR’s conversations with the state, they have not divulged what their stance is on whether Cox should be granted an abortion.
“We’ve done this in this one case, but this is not an option for most people — to file a lawsuit while they’re in the midst of a health crisis,” Hearron said.
“Someone who has ruptured membranes doesn’t have time. They need an abortion … even though we’ve done this in this one situation, this cannot be the answer — that every single person who needs an abortion in the state of Texas files lawsuit,” Hearron said.
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