Texas AG Ken Paxton files petition to block Kate Cox abortion, despite fatal fetal diagnosis

Saturday updates:Texas Supreme Court blocks Kate Cox's emergency abortion approval while review is pending

The same day that a judge in Texas issued a temporary restraining order on the state's abortion ban and authorized a woman with a fatal fetal diagnosis, Dallas mom of two Kate Cox, to terminate her pregnancy, Texas Attorney General Ken Paxton late Thursday filed a petition asking the Texas Supreme Court to block the ruling.

Attorneys for the Center for Reproductive Rights, which brought the case on Cox's behalf Tuesday, in a response filed Friday asked the judge to reject the appeal.

"Urgent action from this Court is necessary — specifically, to remind the Attorney General that he does not exist outside the systems of laws of which he is an officer, and that he must follow court orders just like the citizens he purports to serve," the Center's response, filed Friday afternoon, reads.

Cox was 20 weeks and three days pregnant as of Friday afternoon, according to her attorneys' response to the petition. The case may be deemed moot if Cox obtains the abortion before it is decided, but that could depend on interpretation, said Seema Mohapatra, a professor of health law at Southern Methodist University.

The request for a writ could allow Paxton to test his arguments against the restraining order in a higher court. Those arguments were central to an advisory letter he sent Thursday to three Houston hospitals where Cox’s OB-GYN holds privileges, claiming that the judge's order would not shield the plaintiffs or the hospitals from criminal charges or fines.

“The TRO will not insulate you, or anyone else, from civil and criminal liability for violating Texas’ abortion laws, including first-degree felony prosecutions … and civil penalties of not less than $100,000 for each violation,” he wrote in the letter, which his office published in a news release Thursday afternoon.

Travis County District Judge Maya Guerra Gamble, a Democrat, issued her order Thursday morning, and explicitly bars the defendants in the case, including Paxton and the Texas Medical Board, and anyone “in active concert and participation” with them from enforcing Texas’s abortion bans and laws “as applied to Ms. Cox’s current pregnancy.”

Cox is 20 weeks pregnant, and her fetus has trisomy 18, a deadly genetic condition. The Dallas-area mother of two has been admitted to emergency rooms four times in the past month — including one visit since the case was filed — after experiencing severe cramping and fluid leaks, attorney Molly Duane told the court Thursday. Several doctors have advised Cox that there is "virtually no chance" her baby will survive and that carrying the pregnancy to term would make it less likely that she will be able to carry another child in the future, according to the complaint. 

In the letter to the Houston hospitals, Paxton argued that private residents could still sue the plaintiffs as allowed by Senate Bill 8, and civil or district attorneys could still enforce Texas' pre-Roe abortion bans, also known as the "1925 laws."

He also stated that the restraining order would expire “long before the statute of limitations for Texas’ abortion laws expires,” seeming to imply that he could prosecute the plaintiffs retrospectively.

But there are holes in this argument, and Paxton isn’t the final authority on this issue, said Grossman, the SMU law professor.

"Paxton doesn't decide what the TRO protects them from or doesn't protect them," Grossman, an Ellen K. Solender Endowed Chair in Women and the Law, told the Austin American-Statesman, part of the USA TODAY Network. "His M.O. is to make threats and be a bully and hope people are afraid that he actually is crazy enough to try to go after them ... I don't think (his statement) is going to have that impact."

In a response to Paxton's Thursday letter, an attorney for Cox said the attorney general was trying to circumvent the legal process through intimidation.

“Fearmongering has been Ken Paxton's main tactic in enforcing these abortion bans,” said Marc Hearron, senior counsel at Center for Reproductive Rights, which filed the case on Cox's behalf. “Rather than respect the judiciary, he is misrepresenting the court’s order. He attacks the judge who rules against him as an 'activist judge'. He is trying to bulldoze the legal system to make sure Kate (Cox) and pregnant women like her continue to suffer.”

As discussed during the Thursday court hearing, the judge's order is a temporary measure that offers Cox and the other plaintiffs immediate relief in a situation that can’t wait for a more thorough, longer-term evidentiary hearing.

In the long term, Cox's case will likely be subsumed under or combined with Zurawski v. Texas, a case filed in March before the Texas Supreme Court that weighs very similar questions to those that were raised in Cox's hearing, Duane and Grossman both said. Twenty women who were denied abortions amid severe pregnancy complications and two OB-GYNs are plaintiffs in Zurawski v. Texas, which the Supreme Court heard on Nov. 28.

That case is stayed pending the court's decision, which could take until the end of June.

In an interview with NBC Nightly News Thursday, Cox said she was "hopeful" about the decision in her favor Thursday but that her family will be grieving over their child's fatal diagnosis regardless.

"Even with being hopeful with the decision that came from the hearing (on Thursday), there’s still— we’re going through the loss of a child," Cox said. "There’s no outcome here that I take home my healthy baby girl. So it’s hard."

Austin American-Statesman staff writer Serena Lin contributed reporting.