Austin, Texas — A judge in Texas on Thursday granted permission for a woman to terminate her pregnancy despite the state's strict abortion ban due to her fetus being diagnosed with what doctors describe as a fatal disorder.
Kate Cox, a 31-year-old Dallas-area mother of two, said she found out last week that her baby suffered from the chromosomal disorder trisomy 18, which usually results in either stillbirth or an early death of an infant. The Center for Reproductive Rights filed an emergency lawsuit Monday on behalf of Cox and her husband.
"The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice," Gamble said in the Zoom hearing. "So I will be signing the order and it will be processed and sent out today."
Texas Attorney General Ken Paxton's office issued a statement saying the temporary restraining order "will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas' abortion laws." Paxton's office also included a letter sent to several medical centers outlining action it will take against doctors who perform an abortion.
The Center for Reproductive Rights said the state does not have the right to an immediate appeal.
Gamble's decision is believed to be the first time a judge has allowed a woman to legally get an abortion since the decision of Roe v. Wade in 1973, according to the Center for Reproductive Rights. The ruling only applies to Cox.
According to the lawsuit, Cox, who is 20 weeks pregnant, has been to three different emergency rooms in the past month, and her doctors have told her that early screening and ultrasound tests suggested her pregnancy is "unlikely to end with a healthy baby," and due to her two prior cesarean sections, continuing the pregnancy puts her at risk of "severe complications" that threaten "her life and future fertility."
The lawsuit alleges that due to Texas' strict abortion bans, doctors have told her their "hands are tied" and she would have to wait until the fetus dies inside her or carry the pregnancy to term, when she will have to undergo a third C-section "only to watch her baby suffer until death."
On Nov. 28, Cox received the results of an amniocentesis, which confirmed that her fetus suffered from a genetic condition called trisomy 18 — a diagnosis, the lawsuit says, that means her pregnancy may not last until birth and if it does, her baby will be stillborn or survive only for minutes, hours or days.
Cox had already been told by a specialist that her fetus suffered from a "spinal abnormality" and over the next five weeks, every ultrasound showed more "multiple serious conditions," the lawsuit says.
The lawsuit was filed as the State Supreme Court is weighing whether the state's strict abortion ban is too restrictive for women who suffer from severe pregnancy complications. An Austin judge ruled earlier this year that women who experience extreme complications could be exempt from the ban, but the ruling is on hold while the all-Republican Supreme Court considers the state's appeal.
In the arguments before the state Supreme Court, the state's lawyers suggested that a woman who is pregnant and receives a fatal fetal diagnosis could bring a "lawsuit in that specific circumstance."
Texas has some of the strictest abortion laws in the country. In 2021, Texas Gov. Greg Abbott signed into law SB8, which bans abortions after roughly six weeks of pregnancy. A "trigger ban" also went into effect following the Supreme Court's 2022 ruling in Dobbs v. Jackson Women's Health Organization that made it a felony for doctors in the state to perform an abortion unless the life of the patient is in danger.
Earlier this year, several women who were denied abortions despite severe pregnancy complications filed a lawsuit asking the state to clarify the strict abortion ban for medical exemptions. In July, an Austin court heard testimony from four of the women in the lawsuit as well as a Houston OB-GYN representing her patients.
Lead plaintiff Amanda Zurawski, who attended President Biden's State of the Union address this year as a guest of first lady Jill Biden, testified that she was denied an emergency abortion when her water broke when she was just 18 weeks pregnant. She said she suffered from a number of medical complications and knew she would miscarry, but doctors initially told her they could not induce labor because the fetus still had a heartbeat.
After developing sepsis three days later, doctors finally performed an induction abortion. As a result of two bouts of sepsis, she said one of her fallopian tubes has closed permanently, and she has had to undergo several procedures to reconstruct her uterus. She said her doctor told her that the only way she could get pregnant again was through IVF. Since then, Zurawski has undergone three egg retrievals, but she and her husband still have concerns about a future pregnancy.
Another woman, Samantha Casiano, who has four children, was forced to carry her pregnancy to term despite a 100% fatal condition. Casiano became so emotional on the stand while describing carrying a doomed pregnancy to term that she threw up.
Casiano testified that she looked into leaving the state for an abortion, as others had, but she worried about the cost and she feared she and her husband would "get in trouble."
"I have children, I can't go to jail," she recalled thinking. "I can't get this fine, how would I pay for that, I can't lose my job. I felt like I had no options."
Travis County Judge Jessica Mangrum ruled in August that women who experience pregnancy complications are exempt from the state's abortion bans. But the state immediately appealed, putting Mangrum's decision on hold until the state Supreme Court rules.
According to Cox, her amniocentesis revealed her fetus suffered from trisomy 18, meaning it had three copies of chromosome 18 instead of two. According to the Cleveland Clinic, heart problems are present in 90% of babies born with trisomy 18, as well as kidney disease, breathing abnormalities, gastrointestinal tract and abdominal wall issues, birth defects and spinal problems.
Former Sen. Rick Santorum's 15-year-old daughter was born with trisomy 18.
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