Texas Judge Grants Emergency Abortion Order

Finally, some good news.

It’s nice to be able to bring you good news every once in a while. Today a Texas judge, tearing up as she spoke, granted Kate Cox an emergency order that allows her to have an abortion. As you know, Cox’s pregnancy was diagnosed with a fatal condition, but Texas’ abortion ban doesn’t have an exception for fetal anomalies—even lethal ones.

Judge Maya Guerra Gamble said, “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.”

The Associated Press reports that the decision allowing Cox to have an abortion is likely to be appealed by the state, but the Texas Tribune notes that the state actually can’t directly appeal the order. Instead, the Attorney General’s office would have to file “a writ of mandamus petition” asking the Court of Appeals to overturn the emergency order. Or, as a law professor told the Tribune, the AG could go directly to the state Supreme Court. It’s unclear what lawyers for the state plan to do next.

What is clear, however, is that they’re monsters. That’s why I appreciated this headline from Bloomberg, which makes plain that this case wasn’t just about the ban being written in an unclear way, or a judge ruling in spite of the ban. It was about lawyers for the state actively fighting against allowing this woman to get an abortion.

In a court filing, for example, Texas lawyers wrote that Cox’s life wasn’t sufficiently at risk to qualify for an abortion:

“There are no facts pled which demonstrate that Ms. Cox is at any more of a risk, let alone life-threatening, than the countless women who give birth every day with similar medical histories.”

Did you just say “fuck you” aloud to that sentence? Because I sure did the first time I read it!

Johnathan Stone, a lawyer with the Texas Attorney General's office, argued the same in the court hearing. He said that Cox wouldn’t suffer “immediate and irreparable injury,” and that the decision to have an abortion “can’t be undone.” (Superstar lawyer Molly Duane from the Center for Reproductive Rights shot back, “The harm to Ms. Cox’s life, health and fertility are very much also permanent and cannot be undone.”)

A few important things to note:

While the most urgent goal of the case was to get Cox the care that she needed, the Center for Reproductive Rights also wanted to ensure that the people supporting Cox wouldn’t be in legal danger. Judge Gamble ruled that Cox’s OBGYN, Dr. Damla Karsan, should be protected from civil and criminal penalties. Cox’s husband was also a plaintiff in the suit; he wanted to be able to help her obtain an abortion but was worried about civil liability.

It’s a stark reminder that Texas’ ban goes far beyond making abortion illegal—it also threatens anyone who has the temerity to support a person they love or care about.

As I wrote yesterday, there’s also a bigger anti-abortion strategy at play here around fatal fetal anomalies. The anti-abortion movement is desperate to paint prenatal testing as unreliable, and to shame women who want to end doomed pregnancies.

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From yesterday: How Cox’s case connects to a broader anti-choice strategy seeking to force women to carry doomed pregnancies to term.

Calculated Cruelty, Texas Edition

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Texas Right to Life, for example, responded to the judge’s decision by saying, “The answer is not to end the child’s life because of the baby’s disability.” From the group’s statement:

“Every child is uniquely precious and should continue to be protected in law no matter how long or short the baby’s life may be. The compassionate approach to these heartbreaking diagnoses is perinatal palliative care, which honors, rather than ends, the child’s life.”

Remember, one of the things I focused on in my October investigation was the way in which the anti-abortion movement planned to frame their work as ‘prenatal counseling’ or ‘perinatal palliative care’. Both of those are real things! But anti-abortion activists are co-opting language around valid medical counseling and care in order to start organizations, train volunteers and push for legislation that forces women to carry doomed pregnancies to term.

That’s why it’s vital that we’re on the lookout for language like this: the more they frame their work in this way, the harder it’s going to be to fight back against anti-abortion policies. Because who would be against prenatal counseling? Who would oppose perinatal palliative care? The anti-abortion movement knows what they’re doing; and we need to stay ten steps ahead.

Abortion, Every Day will have more in the newsletter tonight if the state makes any moves on Cox’s case.

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Read AED’s investigation into the anti-abortion movement’s initiative around fetal abnormalities:

Calculated Cruelty