Kate Cox, the plaintiff in a high-profile legal challenge to Texas’ abortion laws, announced Monday that she was leaving the state to terminate her pregnancy. Under Texas law, some experts say, anyone who helped her do so could face legal risk.
Cox sought a court order to terminate her pregnancy in Texas after she learned that her fetus had a rare disorder that prevented it from surviving outside the womb. A state district court granted her request last week, but then the Texas Supreme Court ruled against her Monday, overturning the order.
The state Supreme Court had paused the lower court’s ruling as it considered the case, and while she waited for a decision, Cox determined that her pregnancy was too risky and sought an out-of-state abortion, her lawyers said.
Texas has two primary laws restricting abortion. One makes it a felony to perform an abortion from the moment of fertilization, except for situations in which doctors, using “reasonable medical judgement,” deem the procedure medically necessary to save the life of a pregnant woman or prevent “substantial impairment of a major bodily function.”
The other law was enacted in September 2021, before the U.S. Supreme Court struck down Roe v. Wade; it authorizes private citizens to file civil suits against anyone who provides or abets an abortion after about six weeks of pregnancy.
Since travel assistance could theoretically count as abetting an abortion, several legal experts said that Cox’s husband — or any friend or family member who helped her leave Texas — may still be vulnerable to lawsuits. Cox’s lawyers did not disclose her location or give additional details about who, if anyone, helped her seek an out-of-state abortion.
“Anybody with knowledge who’s actively participating to help the pregnant person achieve an abortion — driving them to the other state, flying with them, being there step by step with that person — those are the individuals that would be at risk,” said Joseph Veith, a criminal law attorney in El Paso.
Citizens who sue under that Texas law — known as SB 8 — are eligible to receive at least $10,000 in damages.
“This is such a high-profile case that it will probably attract people who are interested in filing these lawsuits,” Veith said.
However, the Center for Reproductive Rights, which represents Cox, said SB 8 is not a concern in her case, since it only applies to abortions within the state of Texas, not those obtained in other states.
Independent legal experts say it’s hard to know how a lawsuit would play out, because there’s little precedent. Late last year, a judge dismissed a case in which a Chicago resident sued a Texas doctor who had provided an abortion after SB 8 went into effect. The judge determined that people who are not directly affected by an abortion do not have standing to sue.
“SB 8 was a stopgap measure. It was passed in the face of uncertainty about whether criminal abortion laws would be legal. So it remains to be seen whether it was actually designed to be used,” said Khiara M. Bridges, a law professor at the University of California, Berkeley.
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There are also logistical barriers to bringing forward a lawsuit of this nature, experts said: People have to hire a lawyer, pay fees and gather substantial evidence that the person they are suing assisted in an abortion.
“They’re not going to have access to medical records, so unless it’s more high-profile or if it’s a family friend or a friend who provides information to another person, there’s just not going to be a lot of information obtainable,” Veith said.
As for what’s next in Cox’s lawsuit, legal experts said the Texas Supreme Court’s decision most likely ended it.
In its decision, the court wrote that Cox’s doctor had not clearly demonstrated her need for a lifesaving abortion. The court also said that if the doctor were to decide, based on “reasonable medical judgment,” that Cox’s situation did qualify for an exception to Texas’ abortion ban, there would be no need to seek a court order in the first place.
“They’re saying it’s up to the doctor, but they also seem to be saying that the doctor’s affidavit was not sufficiently harrowing,” said Wendy Parmet, the director of the Center for Health Policy and Law at Northeastern University in Boston. “That, I think, is going to put shivers down the spine of a lot of doctors.”
Many doctors and legal experts say it is often unclear which situations qualify as medical exceptions under Texas law and similar abortion bans in other states. Physicians who violate Texas’ abortion law can lose their medical licenses, face up to 99 years in prison or incur fines of at least $100,000.
“There’s nothing in that opinion that I think would assuage physicians, particularly given the severity of the penalties and risks that health care providers face in Texas [and] the court’s unwillingness really to acknowledge the incredible bind that physicians are being put in,” Parmet said.
Cox’s developing fetus was diagnosed with trisomy 18, a rare chromosomal disorder likely to cause stillbirth or infant death shortly after a baby is born. The disorder also elevates a mother’s risk of gestational diabetes, preterm delivery and cesarean section.
According to her petition, Cox was at risk for a cesarean section and gestational diabetes before the diagnosis. She visited the emergency room four times for pregnancy symptoms, her lawyers said, including severe cramps, leaking fluid and elevated vital signs.
Another ongoing lawsuit in Texas also seeks to define the types of emergency situations that qualify for abortions, but legal experts said they expect a similar opinion from the state’s highest court.
At the very least, Bridges said, that lawsuit will “give the state Supreme Court another opportunity to clarify its holding in Kate Cox’s case.”
