In RE STATE OF TEXAS ATTORNEY GENERAL OF TEXAS KEN PAXTON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF TEXAS TEXAS MEDICAL BOARD AND STEPHEN BRINT CARLTON, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE TEXAS MEDICAL BOARD v. the State of Texas

Supreme Court of Texas

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No. 23-0994

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In re State of Texas; Attorney General of Texas; Ken Paxton, in

his official capacity as Attorney General of Texas; Texas Medical

Board; and Stephen Brint Carlton, in his official capacity as

Executive Director of the Texas Medical Board,

Relators

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On Petition for Writ of Mandamus

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PER CURIAM

Kate Cox and her husband Justin are the parents of two children.

Ms. Cox is about twenty weeks pregnant with a third child—one who

has received a tragic diagnosis. The Coxes and their doctor sue to

prevent the enforcement of Texas laws that generally prohibit abortion.

These laws reflect the policy choice that the Legislature has

made, and the courts must respect that choice. Part of the Legislature’s

choice is to permit a significant exception to the general prohibition

against abortion. And it has delegated to the medical—rather than the

legal—profession the decision about when a woman’s medical

circumstances warrant this exception. The law allows an abortion

when:

in the exercise of reasonable medical judgment, 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.

TEX. HEALTH & SAFETY CODE § 170A.002(b)(2).

Only a doctor can exercise “reasonable medical judgment” 1 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.” If a doctor, using her “reasonable medical judgment,” decides

that a pregnant woman has such a condition, then the exception applies,

and Texas law does not prohibit the abortion.

In this case, the pleadings state that Ms. Cox’s doctor—Dr. Damla

Karsan—believes Ms. Cox qualifies for an abortion based on the

medical-necessity exception. But when she sued seeking a court’s

pre-authorization, Dr. Karsan did not assert that Ms. Cox has a

“life-threatening physical condition” or that, in Dr. Karsan’s reasonable

medical judgment, an abortion is necessary because Ms. Cox has the

type of condition the exception requires. No one disputes that Ms. Cox’s

pregnancy has been extremely complicated. Any parents would be

devastated to learn of their unborn child’s trisomy 18 diagnosis. Some

difficulties in pregnancy, however, even serious ones, do not pose the

1 The law 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.” TEX.

HEALTH & SAFETY CODE § 170A.001(4).

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heightened risks to the mother the exception encompasses. The

exception requires a doctor to decide whether Ms. Cox’s difficulties pose

such risks. Dr. Karsan asked a court to pre-authorize the abortion yet

she could not, or at least did not, attest to the court that Ms. Cox’s

condition poses the risks the exception requires.

Despite this, the trial court ruled that a prospective abortion

would “fall within the medical exception” to Texas’s abortion laws.

Based solely on the verified pleading, it issued an order restraining the

Attorney General from enforcing the abortion laws against Dr. Karsan

and others related to the case. 2 The State seeks relief from the trial

court’s order.

We note at the outset that we may grant mandamus relief when

the trial court effectively resolves the merits of a case in a temporary

restraining order. See In re Newton, 146 S.W.3d 648, 652-53 (Tex. 2004)

(ordering the trial court to vacate a temporary restraining order where

appeal could not be heard until after the order caused irremediable

harm to the party). The State has also challenged the trial court’s

jurisdiction, arguing that the plaintiffs have not pleaded a claim for

2 The trial court restrained enforcement under Texas Health and Safety

Code Sections 170A.001-.002, 171.002(3), 171.203-.205, 171.152, 171.0124, and

285.202. However, as the Attorney General admits for these purposes, he has

no authority to impose criminal penalties. See State v. Stephens, 663 S.W.3d

45, 55, 57 (Tex. Crim. App. 2021). Nor is the Attorney General or any other

state official authorized to enforce Subchapter H of Chapter 171. Whole

Woman’s Health v. Jackson, 642 S.W.3d 569, 575 (Tex. 2022). The trial court

had no jurisdiction to restrain the Attorney General from enforcing laws that

he has no power to enforce. Chapter 170A, however, is enforceable by the

Attorney General through the imposition of civil penalties. TEX. HEALTH &

SAFETY CODE § 170A.005. We address the trial court’s order limited to this

context.

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relief that the court has the power to decide. The trial court did not rule

on the State’s plea, as it must “at its earliest opportunity.” Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also

In re Abbott, 601 S.W.3d 802, 805 (Tex. 2020) (concluding a trial court

without jurisdiction cannot order relief, even temporarily). 3 The trial

court declared the abortion laws unenforceable based on the court’s

opinion that the exception applies.

A woman who meets the medical-necessity exception need not

seek a court order to obtain an abortion. Under the law, it is a doctor

who must decide that a woman is suffering from a life-threatening

condition during a pregnancy, raising the necessity for an abortion to

save her life or to prevent impairment of a major bodily function. The

law leaves to physicians—not judges—both the discretion and the

responsibility to exercise their reasonable medical judgment, given the

unique facts and circumstances of each patient.

3 Because jurisdiction implicates the trial court’s power to act, we would

normally “address the issue first” before resolving the merits. Abbott v. Anti-

Defamation League Austin, Sw., & Texoma Regions, 610 S.W.3d 911, 917 (Tex.

2020); see BP Am. Prod. Co. v. Laddex, Ltd., 513 S.W.3d 476, 479 (Tex. 2017).

To obtain injunctive relief at this early stage, however, the parties seeking

relief must demonstrate both that the trial court possessed jurisdiction and

that they are likely to prevail on the merits. The failure of either means that

temporary injunctive relief against the State is unavailable. See Anti-

Defamation League, 610 S.W.3d at 917. Because we conclude that the Coxes

have not demonstrated that they are entitled to relief, we refrain at this stage

from determining the jurisdictional challenges the State presents.

Counsel for the Coxes and Dr. Karsan has informed the Court that Ms.

Cox has traveled to another state with the intention of seeking medical care,

but no party has suggested that the relief they request against the Attorney

General’s enforcement power is moot.

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Though the statute affords physicians discretion, it requires more

than a doctor’s mere subjective belief. By requiring the doctor to

exercise “reasonable medical judgment,” the Legislature determined

that the medical judgment involved must meet an objective standard. 4

Dr. Karsan asserted that she has a “good faith belief” that Ms. Cox meets

the exception’s requirements. Certainly, a doctor cannot exercise

“reasonable medical judgment” if she does not hold her judgment in good

faith. But the statute requires that judgment be a “reasonable medical”

judgment, and Dr. Karsan has not asserted that her “good faith belief”

about Ms. Cox’s condition meets that standard. 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 trial court

erred in applying a different, lower standard instead of requiring

reasonable medical judgment.

Though courts may not expand the statute beyond the

Legislature’s remit, limiting a physician’s judgment by construing the

exception more narrowly than the statute provides would likewise be

error. For example, the statute does not require “imminence” or, as Ms.

Cox’s lawyer characterized the State’s position, that a patient be “about

to die before a doctor can rely on the exception.” The exception does not

hold a doctor to medical certainty, nor does it cover only adverse results

4 This case is not premised on the constitutionality of the abortion

statutes generally or the objective standard specifically. Dr. Karsan has raised

constitutional challenges to the statute in State v. Zurawski, No. 23-0629,

which is pending before our Court. The parties do not raise these issues in this

petition for writ of mandamus, however, and we leave them for future

resolution.

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that will happen immediately absent an abortion, nor does it ask the

doctor to wait until the mother is within an inch of death or her bodily

impairment is fully manifest or practically irreversible. The exception

does not mandate that a doctor in a true emergency await consultation

with other doctors who may not be available. Rather, the exception is

predicated on a doctor’s acting within the zone of reasonable medical

judgment, which is what doctors do every day. An exercise of reasonable

medical judgment does not mean that every doctor would reach the same

conclusion.

A pregnant woman does not need a court order to have a life-

saving abortion in Texas. Our ruling today does not block a life-saving

abortion in this very case if a physician determines that one is needed

under the appropriate legal standard, using reasonable medical

judgment. If Ms. Cox’s circumstances are, or have become, those that

satisfy the statutory exception, no court order is needed. Nothing in this

opinion prevents a physician from acting if, in that physician’s

reasonable medical judgment, she determines that Ms. Cox has a “life-

threatening physical condition” that places her “at risk of death” or

“poses a serious risk of substantial impairment of a major bodily

function unless the abortion is performed or induced.”

The points we have made above provide some clarity about the

legal standards and framework for this sensitive area of Texas law. The

courts cannot go further by entering into the medical-judgment arena.

The Texas Medical Board, however, can do more to provide guidance in

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response to any confusion that currently prevails. 5 Each of the three

branches of government has a distinct role, and while the judiciary

cannot compel executive branch entities to do their part, it is obvious

that the legal process works more smoothly when they do.

Without hearing oral argument, TEX. R. APP. P. 52.8(c), we

conditionally grant relief and direct the trial court to vacate the

temporary restraining order. We are confident that the trial court will

comply, and the writ will issue only if the trial court fails to do so. We

dismiss the request for an emergency stay as moot.

Justice Devine and Justice Blacklock concur in the order granting relief.

OPINION DELIVERED: December 11, 2023

5 For an interpretation of the statute in the abstract, the law empowers

the Texas Medical Board to issue rules to regulate the practice of medicine.

TEX. OCC. CODE §§ 152.001, 153.001. The Board could assess various

hypothetical circumstances, provide best practices, identify red lines, and the

like. It has provided such needed guidance in other contexts, such as its

COVID-19, Guidance & Frequently Asked Questions (FAQs), available at

https://www.tmb.state.tx.us/page/coronavirus. And if the Board does provide

guidance, it can request an opinion from the Attorney General, who has

substantial civil-enforcement authority, regarding the legal effect of

physicians’ compliance with the Board’s guidance. See TEX. GOV’T CODE

§ 402.042(b)(5).

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