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Texas' strict abortion ban will face an unprecedented test Thursday, when a judge considers a request for an emergency court order that would allow a pregnant woman whose fetus has a fatal diagnosis to have an abortion in the state.
The lawsuit filed by Kate Cox, a 31-year-old mother of two from the Dallas area, is believed to be the first of its kind in the nation since the U.S. Supreme Court last year overturned Roe v. Wade, according to the Center for Reproductive Rights, which is representing Cox.
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 — but until now, a woman has not gone to court seeking approval for an immediate abortion.
“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.”
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.
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The lawsuit was filed against the Texas attorney general's office, which has defended the ban in court, and the state's medical board. Republican Texas Attorney General Ken Paxton's office has not responded to requests for comment.
Cox is 20 weeks pregnant and has been told by doctors that her baby is likely to be stillborn or live for a week at most, according to the lawsuit filed in Austin. The suit says doctors told her their “hands are tied” under Texas’ abortion ban.
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.
Cox, a mother of two, 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.
Doctors 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, and that another C-section at full term would would endanger her ability to carry another child.
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.
