A Texas woman has been placed in an untenable and potentially life-threatening position as she waits for a court to decide on her abortion, a legal expert has said.
Carl Tobias, a law professor at the University of Richmond, Virginia, told Newsweek that a U.S Supreme Court decision in the case may be too late for Kate Cox, whose fetus has a rare genetic abnormality.
After the Supreme Court overturned Roe vs. Wade in 2022, the case that legalized abortion as a federal right in 1973, individual states were left to choose their own legal status on abortions. Texas introduced an almost-complete ban after six weeks of pregnancy, apart from in cases when the life of the mother is under threat.
Tobias said that Cox and her hospital have been placed in a very difficult situation after the Texas Supreme Court decided on Friday to temporarily stay a lower court’s ruling that would have allowed Cox’s abortion to take place. The delay will remain in place until the Texas Supreme Court has reached a decision, but it has not yet said when that will be.
Last week, the Texas Attorney General Ken Paxton threatened legal action against three Houston hospitals that could potentially offer Cox an abortion.
Tobias said the circumstances “suggest that Texas Attorney General Paxton may be placing Cox, her doctor, and hospitals in an untenable position, which could even be life-threatening to Cox.” Newsweek sought email comment from the Texas attorney general’s office on Monday.
“Much depends on when the Texas Supreme Court will act and what action the justices might take,” Tobias said.
He added that, on Friday, Paxton “made public statements threatening to prosecute Cox, her doctor and hospitals where Cox might have an abortion, if an abortion proceeded before the [Texas Supreme Court] court ruled.”
“Cox, her counsel, and her doctor allege that Cox has an emergency need for an abortion because her life is endangered and her life could be severely impaired without the procedure and that these conditions satisfy the exceptions in the Texas statute,” Tobias said.
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He added that Cox’s situation was different from that in Roe vs. Wade. The plaintiff in the Roe case, Norma McCorvey, had already given birth to a daughter by the time she won her case before the U.S. Supreme Court.
Tobias said that, in the Roe case, the U.S. Supreme Court adopted the doctrine of “capable of repetition yet evading review.” This means a court can decide an issue is still relevant because the problem could arise again for the same plaintiff.
The U.S. Supreme Court may decide not to hear Cox’s case because she may not experience the same rare fetal genetic abnormality. Tobias said that the court may decide that hearing the case would be “way too late for Cox.”
The Texas Supreme Court’s ruling blocked a district court’s decision to allow Cox to abort a fetus that has a fatal trisomy 18 genetic defect, also known as Edwards’ syndrome. Most babies with the defect will die before or shortly after being born.
“Without regard to the merits, the Court administratively stays the district court’s December 7, 2023 order,” the Texas Supreme Court stated in a written ruling on Friday night. The stay remains in place until the court delivers a full decision in the case.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.