Texas Threatens Doctors Over Court-Granted Abortion

Texas' attorney general has threatened to imprison any doctor who performs an abortion granted by one of the state's courts to remove an unviable fetus that could make the mother infertile if carried to term.

On Thursday, a judge in Travis County granted a temporary restraining order prohibiting the implementation of Texas's abortion laws, after medical professionals discovered Kate Cox's 20-week pregnancy had a condition that caused deformities—giving it a minimal chance of survival and potentially threatening her reproductive health.

But later the same day, Ken Paxton released a statement in which he said the order "will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas' abortion laws," including first degree felony prosecutions and civil penalties in excess of $100,000.

Since the Supreme Court overturned Roe v. Wade in 2022, allowing individual states to choose their own legal status on the issue, Texas is among states to have instituted a full ban on abortions apart from in cases when the life of the mother is under threat. Medical experts have previously warned of impacts to mothers' health that full abortion bans can have.

Cox filed an emergency lawsuit to acquire an abortion in her home state after her fetus was diagnosed with Trisomy 18, a genetic disorder in which babies have three copies of chromosome 18 instead of two. This can cause any number of defects with the pregnancy.

Only half of pregnancies with the condition are born alive, according to the Minnesota Department of Health. Of those that are, their survival usually lasts between 2.5 and 14.5 days. As many as 95 percent of Trisomy 18 babies do not survive beyond their first birthday.

Ahead of the ruling, Cox expressed that she did not want to terminate the pregnancy, but that it was already effectively dead. She said that she "desperately" wants the chance to have another healthy baby.

"We're grieving the loss of a child," Cox told ABC News. "There's no outcome here that results in us taking home a healthy baby girl. So it's hard."

The outlet said that Johnathan Stone, acting for the Texas Attorney General's Office, argued in court that Cox had not shown she would suffer "immediate and irreparable injury." However, Judge Maya Guerra Gamble, a Democrat, ruled in Cox's favor.

"The idea that Miss 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," she said in her decision.

Paxton, a Republican, argued that while the temporary restraining order "purports to temporarily enjoin actions brought by the [Office of the Attorney General]," it "does not enjoin actions brought by private citizens."

He also warned that it did not prohibit district or county attorneys from enforcing pre-Roe v. Wade abortion laws and "will expire long before the statute of limitations for violating Texas' abortion laws expires."

In a letter to three hospitals in Houston, thought to be affiliated with a doctor willing to undertake the abortion, Paxton reiterated his threats and described the judge as "an activist." He also claimed that the doctor had not sought a second opinion and saw the abortion as "medically recommended" rather than to avert a threat to Cox's life.

Newsweek approached Molly Duane, Cox's attorney, via email through the Center for Reproductive Rights for comment on Friday.

Beto O'Rourke, a former Democrat congressman who ran for Texas governor in 2022, described Paxton's remarks as "saying he'll throw a woman's doctors in prison for life if they perform a court-granted abortion on a nonviable pregnancy that risks causing her permanent infertility and death." He added: "Still think the GOP is pro-life?"

In Texas, a first degree felony can carry a life sentence or between five and 99 years in prison.

"Those defending ambiguous medical exceptions in abortion bans regularly suggest that the problem is not the ambiguities, but doctors narrowly construing them," Steve Vladeck, a legal commentator and a faculty member of the University of Texas's School of Law, wrote. "And yet, here's Texas AG Ken Paxton threatening doctors with civil and criminal liability for FOLLOWING A COURT ORDER."

Newsweek approached Paxton's office via email for comment on Friday.

In his letter, Paxton said Gamble was "not medically qualified to make this determination and [the temporary restraining order] should not be relied on" as it was "no substitute for medical judgement."

The Trisomy 18 Foundation says that for some mothers, terminating a pregnancy with the condition "is medically necessary to preserve their ability to have more children in the future," but notes it is "very rare" for it to cause harm to the mother's physical health.

According to her lawyer, Cox did not consider traveling to another state as she was worried about what implications it might have on her condition.

Update, 12/11/23, 4:15 a.m. ET: The headline on this article was updated for clarity.