In the wake of the U.S. Supreme Court’s 2022 reversal of Roe v. Wade,[1] the office of Texas Attorney General Ken Paxton issued an advisory opinion stating that, thirty days after judgement issued in Dobbs v. Jackson Women’s Health Organization,[2] Texas’s Human Life Protection Act would go into effect.[3]

The Act largely prohibits abortion in the state, subject to exception when,

in the exercise of reasonable medical judgment,[4] the pregnant female . . . has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.[5]

On December 5, 2023, Kate Cox of Travis County, Texas (who was then 20 weeks pregnant), sued the State of Texas, arguing that the Act barred her physician from providing her an abortion after she learned “that her baby was at high risk for trisomy 18 [a genetic condition causing physical abnormalities].”[6] Ms. Cox sought to enjoin Texas officials from enforcing the Act and requested a temporary restraining order to allow her to undergo an abortion in the state.[7]

On December 7, 2023, Texas District Court Judge Maya Guerra Gamble granted Ms. Cox’s restraining order.[8] The order stated that “[t]he longer Ms. Cox stays pregnant, the greater the risks to her life. If she is forced to continue this pregnancy, Ms. Cox is at a particularly high risk for gestational hypertension, gestational diabetes, fetal macrosomia, post-operative infections, anesthesia complications, uterine rupture, and hysterectomy, due to her two prior C-sections and underlying health conditions. If she is forced to carry this pregnancy to term, she will likely need a third C-section. Undergoing a third C-section would make subsequent pregnancies higher risk and make it less likely that Ms. Cox would be able to carry another child in the future.”[9]

But on December 11, 2023, the Texas Supreme Court struck down the lower court’s ruling.[10]  In a unanimous decision,[11] the court explained that the Texas legislature had decided to pass the Act “and the courts must respect that choice.”[12] The court went on to note that the legislature had put the decision of whether a woman could receive an exception to the Act in the hands of medical professionals.[13] The court continued: “Only a doctor can exercise ‘reasonable medical judgment’ to decide whether a pregnant woman ‘has a life-threatening physical condition,’ making an abortion necessary to save her life or to save her from a ‘serious risk of substantial impairment of a major bodily function.’”[14]

The court then reviewed the details of Ms. Cox’s situation. It stated that, while Ms. Cox’s doctor believed that Ms. Cox qualified for an exception, her doctor had not claimed that she had a life-threatening condition as defined by the Act’s exception language.[15] The court explained that, while Ms. Cox’s pregnancy was complicated, her doctor “could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks [the Act’s] exception requires.”[16]

The court then explained that, if a Texas woman met the Act’s exception requirements, she would not need a court order to undergo an abortion.[17] Only a doctor’s decision is needed for the exception; however, the court explained that the Act “requires more than a doctor’s mere subjective belief” that an abortion is necessary.[18] The standard the Texas legislature requires is “reasonable medical judgment,” which the court pointed out materially differed from Ms. Cox’s doctor’s “good faith belief” that Ms. Cox needed an abortion.[19] Ms. Cox’s doctor had “not asserted that her ‘good faith belief’ about Ms. Cox’s condition meets that standard,” the court concluded.[20] It further stated that the trial court erred when it granted Ms. Cox’s restraining order by applying a lower standard of “good faith belief.”[21] “Judges do not have the authority to expand the statutory exception to reach abortions that do not fall within its text under the guise of interpreting it,” the court explained.[22]

The court also noted that it would be likewise improper if a court were to limit the Texas legislature’s exception beyond what the text warrants, such as by requiring a doctor to prove “imminent” threat to a woman’s life.[23] Similarly, the court explained that the Act does not require medical certainty for a doctor to rely upon the exception; a doctor need only be using his “reasonable medical judgment,” which may vary from doctor to doctor, to rely on the exception.[24]

The court emphasized that its decision would not block a life-saving medical intervention.[25] Concerning Ms. Cox’s case, the court concluded that, if her condition truly met the exception requirements, then she did not need a court order to undergo an abortion.[26]


[1] 410 U.S. 113 (1973).

[2] 597 U.S. 215 (2022).

[3] Updated Advisory on Tex. L. Upon Reversal of Roe v. Wade; see H.B. 1280, 2021 Leg., 87th Reg. Sess. (Tex. 2021).

[4] Tex. Health & Safety Code § 170A.001 defines “reasonable medical judgment” as “a medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.”

[5] Tex. Health & Safety Code § 170A.002(b)(2).

[6] Compl. ¶ 10, Cox v. Texas, No. D-1-GN-23-008611 (Travis Dist. Ct. Dec. 5, 2023).

[7] Id. at ¶ ¶ 167-69, 215-22.

[8] Ord. Granting Pls.’ Temp. Restraining Ord. at 4-5, Cox, No. D-1-GN-23-008611.

[9] Id. at 2.

[10] See generally In re State, 682 S.W.3d 890.

[11] Id. at 895. Justices Jimmy Blacklock and John Devine concurred in the judgment.

[12] Id. at 892.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 893.

[17] Id.

[18] Id. at 894.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 894.

[25] Id.

[26] Id. The court also noted that it would not offer an opinion on whether particular circumstances would warrant use of the exception. It instead noted that, if it so desires, the Texas Medical Board can provide advice concerning the application of the exception to particular instances. See id. at 894.

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