What could Texas Supreme Court ruling mean for future abortion exception cases?

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AUSTIN (Nexstar) — The Texas Supreme Court ruling in the case of a Dallas woman who sought an emergency abortion amid pregnancy complications is raising new questions about what conditions doctors may perform the procedure under Texas law.

Last week, a Travis County court ruled Kate Cox could receive an abortion under the medical exceptions in the state’s abortion law, which bans nearly all abortions after six weeks. Cox received a fatal fetal diagnosis at 20 weeks of pregnancy called trisomy 18. The fetus is unable to sustain life, and Cox argued her health and future fertility would be at risk if she gave birth.

The Travis County ruling was put on pause Friday after Attorney General Ken Paxton filed an emergency opinion to the highest court in Texas. While the state Supreme Court evaluated the merits of the case, attorneys for Cox said her condition worsened — saying she visited the emergency room four times and experienced elevated vitals and risked a uterine rupture, which could impact her ability to have children in the future.

By that point, attorneys for Cox said early on Monday that the 31-year-old Dallas mother was “forced” to leave the state to terminate her pregnancy while she awaited a ruling. Later on Monday evening, the Texas Supreme Court issued an opinion blocking a lower court’s ruling that gave Cox permission to get an abortion in Texas.

Under Texas law, the abortion prohibition does not apply when a pregnant woman has a “life threatening physical condition… that places her at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

“Only a doctor can exercise ‘reasonable medical judgment’ to decide whether a pregnant woman ‘has a life-threatening physical condition,’ making an abortion necessary to save her life or to save her from ‘a serious risk of substantial impairment of a major bodily function,'” the opinion said. “If a doctor, using her ‘reasonable medical judgment,’ decides that a pregnant woman has such a condition, then the exception applies, and Texas law does not prohibit the abortion.”

“When is the medical exemption really going to allow life saving medical care,” said Austin Kaplan, one of the attorneys who represents Cox. “There ought to be an exception to save the life of the mother to save the fertility of the mother.”

While the opinion itself does not grant Cox the ability to get an abortion under the exceptions clause in Texas, some legal experts speculate the way it was written was meant to give doctors more clarity about when they can perform one in the future.

Josh Blackman — a constitutional law professor at the South Texas College of Law Houston — said the high court did give “some guidance” for other cases in which an abortion might be permitted under the exceptions clause.

“This is not a ruling that Cox could have benefited from. Rather, this is a ruling that we think that the other doctors might be able to use to perform abortions in the future if certain very specific conditions are met,” he said.

The state Supreme Court is also deliberating a separate case called Zurawski v. Texas, in which 20 women are suing for clarified language in the state abortion ban that defines when a doctor may intervene to protect a mother’s life.

Kaplan is also a lawyer working on that case, and said aspects of the Supreme Court opinion do give him hope for the Zurawski lawsuit.

“I’m personally hopeful that this is a sign that in the Zurawski case we will get a positive decision for mothers, for doctors,” he said. “There’s still time to sort of give some clarity here and create a functional medical exception.”

The opinion did not provide any further definitions or guidance as to what qualifies as “life-threatening condition.” It’s an issue Dr. Damala Karsan, an OB-GYN part of the Zurawski lawsuit, raised during July hearings on their case. She and other physicians have expressed fear of losing their license or getting sued under another Texas’ Senate Bill 8.

“I’ve always tried to practice with the standards of care but I also want to be a law abiding citizen and I don’t want to risk my freedom and my livelihood,” Karsan said in Travis County court this summer.

The president of the Texas Medical Association also weighed in on the ruling.

“TMA supports further efforts to protect physicians providing medically appropriate care to pregnant women and to clarify the existing medical exceptions, so pregnant patients can access the critical care necessary to safeguard their own health and future ability to have children,” said Rick W. Snyder II, MD.

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