UPDATE: Texas Supreme Court Temporarily Halts Decision That Allowed Pregnant Woman to Abort Fetus With Lethal Diagnosis

Updated Saturday, Dec. 9, 11:06am: After Attorney General Ken Paxton filed a petition to reverse the district court’s decision, the Texas Supreme Court on Friday evening put a temporary halt to the ruling that would allow Kate Cox to terminate her pregnancy.

The Court did not comment on the merits of the case or give a timeline for its review of the decision. This is a developing story.

Original story:

Kate Cox has not been “enjoying a sunny vacation in Florida” as the State of Texas alleged in a late night response to her lawsuit. As a result of her risky pregnancy, she has visited the emergency room four times recently, once since filing her emergency lawsuit Tuesday asking a judge to grant her the freedom to abort.

In the long-term, the Center for Reproductive Rights suit will address constitutional questions about Texas’ bans on abortion. Short-term, Cox and her doctor needed permission to terminate her pregnancy, thereby avoiding damage to her reproductive system that could prevent future pregnancies. The Thursday hearing marked the first time since before Roe v. Wade in 1973 that an adult has asked a court to allow an abortion, the Texas Tribune reported.

Travis County Judge Maya Guerra Gamble agreed to sign the restraining order Thursday, granting a temporary restraining order to prevent the state from prosecuting Cox, her husband Justin Cox, and her OB/GYN Dr. Damla Karsan.

“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. “So, I will be signing the order.”

The Dallas mother of two learned last week that her fetus was diagnosed with a chromosomal anomaly that is almost always fatal before or immediately after birth. Because her two children were delivered via C-section, Cox’s doctors determined a third C-section at full term presents a risk of uterine rupture.

Texas abortion bans do make exceptions for medical emergencies that threaten the life and body of the mother. “We strongly believe that her situation falls within the medical exception to Texas’ abortion laws,” said Center for Reproductive Rights attorney Molly Duane in court Thursday. “The state attempts to second-guess Ms. Cox’s physicians and say that she is still not sick enough. They have moved the goalposts once again. Now a patient must be about to die before a doctor can rely on the exception.”

Just last week, Duane was arguing before the Texas Supreme Court that Texas’ abortion bans are unconstitutional. But in this case, she told Gamble that, while the lawsuit tackles constitutional issues, the temporary restraining order would not. Gamble’s granting it simply affirms that Cox’s abortion is legal due to the language of the bans.

The state argued otherwise. Because the Coxes had used an online notary based in Florida, they assumed the two were vacationing in Florida. “It is unhinged,” Kelly Krause of the Center for Reproductive Rights told the Chronicle.

When Johnathan Stone, civil litigator with the state Attorney General’s Office, tried to argue in court that the suit should be thrown out due to the out-of-state notary, Gamble would have none of it. “We take notarized documents from other states all the time,” Gamble said. “I think we should focus on what’s really going on here.”

While the state argued that the current medical exceptions are “objective” and that Cox was asking for a subjective reading of the law, their response to the suit did not clarify what kind of risks a mother must face to qualify for an exception. Though, with a snarky sentence made complete with a typo, they suggest that she must be at death’s door. “There are no allegations that Ms. Cox is near death. She is, instead, enjoying a sunny vacation in Florida–which is a [sic] remote from near death as one can imagine.” They also argued that Dr. Karsan’s “confusion” about whether she would lose her medical license and go to prison over providing an abortion to Cox did not rise to the definition of “harm.”

“She claims that she is uncertain how close to death Ms. cox must be before she can perform the abortion. This is a ludicrous claim,” the state argued, before asserting that because Cox was not dying but only risked losing her uterus, the suit amounts to a “frivolous assertion of harm.”

Gamble disagreed with these arguments, and at hearing that the restraining order would be granted, Kate Cox smiled and wiped away tears.