Off the Kuff

Boy howdy is this a big ol’ can of worms.

A Texas woman is asking a judge to allow her to get an emergency abortion after learning that her baby has a rare and typically fatal condition.

The first-of-its-kind lawsuit, filed Tuesday, is significant because it comes a week after state lawyers suggested before the Texas Supreme Court that only pregnant women in immediate distress could bring claims against the state’s abortion ban.

The plaintiff, Kate Cox, 31, of Dallas, and her husband, Justin, are asking for permission to receive an abortion from their physician in Texas without fear of legal repercussions.

Abortion is banned in Texas other than to save the life of the mother or prevent “substantial impairment of a major bodily function.” Medical professionals have described the exception as vague and note that violations carry possible penalties of life in prison, steep fines and a loss of their medical licenses.

Cox is 20 weeks pregnant and received test results last week showing that her fetus has trisomy 18, a chromosomal disorder that carries a low likelihood of survival, according to the suit.

Because she has previously delivered her two children via cesarean surgery, Cox is at higher risk of complications that threaten her life and future fertility if she continues the pregnancy, the lawsuit said. She believes abortion is her safest option, but her Houston physician, Dr. Damla Karsan, is unable to perform the procedure because she fears violating the state’s strict abortion ban, according to the lawsuit.

Cox’s husband is also listed as a plaintiff because he wants to help his wife without fear of penalties under Senate Bill 8, which empowers anyone to sue someone who “aids and abets” an abortion.

“It is not a matter of if I will have to say goodbye to my baby, but when. I’m trying to do what is best for my baby and myself, but the state of Texas is making us both suffer,” Cox said in a statement. “I need to end my pregnancy now so that I have the best chance for my health and a future pregnancy.”

If you’re wondering what this may have to do with the current case before the State Supreme Court, the answer is “everything”.

The high court heard arguments in [Zurawski v Texas] Nov. 28, including the state’s claim that the plaintiffs do not have the legal right to sue, since none of the 20 are currently seeking abortions.

Texas Supreme Court Justice Jeff Boyd asked Assistant Attorney General Beth Klusmann if there was ever a circumstance in which a woman would be able to bring a lawsuit seeking to clarify the law. Klusmann replied that a woman actively seeking an abortion for a lethal fetal anomaly would arguably have standing to sue the attorney general for her specific case.

“And then the defense would be whether or not they intended to enforce it in that circumstance or not, so through the ultra vires, sovereign immunity process, we’d probably hash out some of the merits,” she said. While Klusmann acknowledged that it was likely “impractical” for a woman to file a lawsuit while dealing with a complicated pregnancy, “we don’t bend the rules of standing for practicality.”

As those arguments were happening in Austin, Cox was in the Dallas area, learning her much-wanted pregnancy was unlikely to result in a live baby. In researching her options, she learned about the lawsuit and reached out the Center for Reproductive Rights, which filed both suits. Tuesday’s lawsuit follows the model Klusmann laid out before the justices last week, bringing an ultra vires challenge to the state’s abortion law as it applies to her specific lethal fetal diagnosis.

The lawsuit says that Cox cannot wait for the Supreme Court to rule and asks the judge to grant a temporary restraining order, prohibiting enforcement of Texas’ abortion bans against Cox and her husband, as well as Dr. Damla Karsan, an OB/GYN who has agreed to perform the abortion, and her employees. Karsan is a plaintiff in Zurawski v. Texas as well. Cox’s lawsuit also asks for a declaratory judgement that finds the state’s abortion bans do not apply to patients with emergent medical conditions.

Molly Duane, senior staff attorney for the Center for Reproductive Rights, agreed with Klusmann that most people experiencing a pregnancy complication won’t be able to file a lawsuit. And with such a novel litigation strategy, she said it was unclear whether the courts would act quickly enough to actually get Cox the relief she seeks in a timely manner.

“This is not a normal or reasonable or feasible way for health care to be practiced in this country,” Duane said.

If a judge grants a temporary restraining order, the Office of the Attorney General cannot directly appeal or block that order, as it has with the injunction in the Zurawski case. But the state could ask a higher court to intervene through a writ of mandamus filing, which would delay and possibly deny Cox’s request for an abortion. And a temporary restraining order would not likely extend beyond Cox’s case, meaning other patient seeking an abortion on similar grounds would need to go to court themselves.

“It would be persuasive, but it’s not a binding precedent,” said Charles “Rocky” Rhodes, a law professor at South Texas College of Law.

One outstanding question would be whether Cox’s husband and doctor might be vulnerable to lawsuits if any injunction was later overturned on appeal. Texas’ novel ban on abortions after about six weeks of pregnancy, which is enforced entirely through private lawsuits, contains a provision that indicates people could face lawsuits for aiding or abetting abortions that occurred while an injunction was in place, if that injunction was later overturned. That provision has never been tested in court, and Rhodes said it’s unclear whether it would hold up.

“There’s a lot of novel stuff colliding in this case,” he said. “We knew these questions were coming, just maybe not so soon.”

Those chickens, they do like to roost. My best guess here is that the state will file a response that says something to the effect of “sure, SOME woman under these circumstances MIGHT have standing to sue for the right to an abortion without legal harassment, but not THIS woman at THIS time, for these legal argle-bargle reasons”. I say this on the assumptions that 1) the Attorney General will absolutely feel compelled to oppose this, since their goal is zero abortions ever; 2) the Zurawski plaintiffs (who, remember, are being repped by the same attorneys as the Coxes) will absolutely file a brief with SCOTx if the AG contradicts what it just testified to on this question; and 3) SCOTx will take it seriously if the AG does in fact contradict themselves.

I suspect this will move quickly through the courts, since any delay will moot the issue, so we will find out soon enough how accurate my musings are. Even if the Coxes prevail, it will still be infuriating that anyone would have to go through this to get the medical care they need and deserve, but this is where we are. Have I mentioned that we really ought to make this a much bigger campaign issue next year? The Associated Press has more.