Associated Press

AUSTIN, Texas (AP) — A Texas judge on Thursday gave a pregnant woman whose fetus has a fatal diagnosis permission to get an abortion in an unprecedented challenge over bans that more than a dozen states have enacted since Roe v. Wade was overturned.

The lawsuit by Kate Cox, a 31-year-old mother of two from the Dallas area, is believed to be the first time since the landmark U.S. Supreme Court decision last year that a woman has asked a court to approve an immediate abortion. The order only applies to Cox and her attorneys, who warned it was unfeasible for scores of other women seeking abortions to turn to courts during their pregnancies.

“This can't be the new normal,” said Marc Hearron, an attorney for the Center for Reproductive Rights. “I don’t think you can expect to see now hundreds of cases being filed on behalf of patients. It's just not realistic.”

State District Judge Maya Guerra Gamble, an elected Democrat, said she would grant a temporary restraining order that would allow Cox to have an abortion under what are narrow exceptions to Texas' ban. Her attorneys afterward said they would not disclose what Cox was planning to do next, citing concerns for her safety.

The office of Republican Texas Attorney General Ken Paxton, which has argued that Cox did not meet the criteria for a medical exception, did not immediately react to the ruling but could seek an appeal. Spokesperson for Paxton did not return a message seeking comment.

Cox is 20 weeks pregnant, and in a brief hearing Thursday, her attorneys told Gamble that she went to emergency room this week for a fourth time during her pregnancy.

Cox and her husband both attended the hearing via Zoom but did not address the court. Doctors have told Cox that if the baby’s heartbeat were to stop, inducing labor would carry a risk of a uterine rupture because of her prior cesareans sections, and that another C-section at full term would would endanger her ability to carry another child.

“The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice," Gamble said.

The Center for Reproductive Rights, which is representing Cox, has said this lawsuit is believed to be the first of its kind since Roe v. Wade was overturned. Since that landmark ruling, Texas and 12 other states rushed to ban abortion at nearly all stages of pregnancy. Opponents have sought to weaken those bans, including an ongoing Texas challenge over whether the state's law is too restrictive for women with pregnancy complications.

“I do not want to continue the pain and suffering that has plagued this pregnancy or continue to put my body or my mental health through the risks of continuing this pregnancy,” Cox wrote in an editorial published in The Dallas Morning News. “I do not want my baby to arrive in this world only to watch her suffer.”

The temporary restraining order stops Texas from enforcing the state's ban on Cox and lasts for 14 days. Under the restrictions in Texas, doctors who provide abortions could face criminal charges that carry a punishment of up to life in prison. They could also be fined. Pregnant women cannot be criminally charged for having an abortion in Texas.

Although Texas allows exceptions under the ban, doctors and women have argued that the requirements are so vaguely worded that physicians still won't risk providing abortions, lest they face potential criminal charges or lawsuits.

State officials had asked Gamble to deny the request, arguing that Cox has not shown her life is in imminent danger and that she is therefore unable to qualify for an exception to the ban.

“There are no facts pled which demonstrate that Ms. Cox is at any more of a risk, let alone life-threatening, than the countless women who give birth every day with similar medical histories,” the state wrote in court filings ahead of Thursday's hearing.

The decision was handed down just two days after Cox filed the lawsuit, which says doctors told her the baby will likely be stillborn or live for a week at most.

Cox had cesarean sections with her previous pregnancies. She learned she was pregnant for a third time in August and was told weeks later that her baby was at a high risk for a condition known as trisomy 18, which has a very high likelihood of miscarriage or stillbirth and low survival rates, according to the lawsuit.

The lawsuit was filed a week after the Texas Supreme Court heard arguments about whether the ban is too restrictive for women with pregnancy complications. That case is among the biggest ongoing challenges to abortion bans in the U.S., although a ruling from the all-Republican court may not come for months.

In July, several Texas women gave emotional testimony about carrying babies they knew would not survive and doctors unable to offer abortions despite their spiraling conditions. A judge later ruled that Texas’ ban was too restrictive for women with pregnancy complications, but that decision was swiftly put on hold after the state appealed.

More than 40 woman have received abortions in Texas since the ban took effect, according to state health figures, none of which have resulted in criminal charges. There were more than 16,000 abortions in Texas in the five months prior to the ban taking effect last year.

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