Texas Supreme Court rejects challenge to abortion laws

The Texas Supreme Court has unanimously rejected the most significant challenge to Texas’ new abortion laws yet, ruling Friday that the medical exceptions in the law were broad enough to withstand constitutional challenge.

The case, Zurawski v. Texas, started with five women arguing the state’s near-total abortion laws stopped them from getting medical care for their complicated pregnancies. In the year plus it took to move through the court system, the case has grown to include 20 women and two doctors.

In August, a Travis County judge issued a temporary injunction that allowed Texans with complicated pregnancies to get an abortion if their doctor made a "good faith judgment" that it was necessary. The Texas Office of the Attorney General appealed.

The Texas Supreme Court overturned that ruling Friday, saying it "departed from the law as written without constitutional justification." While the opinion was unanimous, Justice Brett Busby issued a concurring opinion that left the door open to a broader challenge to the law.

Zurawski v. Texas was a pioneering case in post-Roe America, the first challenge to a state’s abortion bans on behalf of women with complicated pregnancies. At least three other states have followed suit, and it led to a related case, in which Kate Cox, an actively pregnant woman in Dallas sued to be allowed to terminate her pregnancy.

The Texas Supreme Court rejected Cox’s plea in December, which many saw as a likely foreshadow of how the court might rule in Zurawski v. Texas. On Friday, those suspicions were confirmed when the court offered a ruling very similar in nature to the Cox case.

"A physician who tells a patient, ‘Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment," the court wrote.

The Center for Reproductive Rights, which brought the suit, said in a statement that this ruling offers no reassurance for doctors facing the potential of criminal and civil penalties.

"Sadly, what we know is that there are anti-abortion advocates who will always question [a doctor's] decision," said Molly Duane, senior counsel for the Center for Reproductive Rights. "I don't know how all of this will actually function in practice ... the fact that true exceptions do not exist in practice will continue to be the norm."

How the case unfolded

The initial lawsuit was filed in March 2023, and unlike previous wholesale, pre-enforcement challenges to abortion bans, this case focused on a very narrow argument — women with complicated pregnancies were being denied medically necessary abortions because doctors were unclear on how and when they could act.

After the overturn of Roe v. Wade in summer 2022, Texas banned all abortions except to save the life of the pregnant patient. Almost immediately, women began to come forward with stories of difficult pregnancies worsened by doctors’ hesitations and uncertainty.

Amanda Zurawski, the named plaintiff in the suit, was 18 weeks pregnant with a daughter they’d named Willow when she experienced preterm prelabor rupture of membranes. Despite the condition being fatal to the fetus and posing significant risks to the pregnant patient, her doctors refused to terminate the pregnancy because there was still fetal cardiac activity. Eventually, Zurawski went into sepsis and spent three days in the intensive care unit. While she survived, the infection has made it difficult for her and her husband to conceive again.

At a press conference outside the state capitol announcing the lawsuit, Zurawski said she was fighting for all Texans who are "scared and outraged at the thought of being pregnant."

"The people in the building behind me have the power to fix this, yet they’ve done nothing," Zurawski said. "So it’s not just for me, and for our Willow, that I stand here before you today — it’s for every pregnant person, and for everyone who knows and loves a pregnant person."

Soon after the laws went into effect, Lauren Hall, a 27-year-old North Texas woman, told The Texas Tribune about learning her first, much desired pregnancy was developing without a skull or brain, and would not survive after childbirth. Unlike some other states, Texas’ law does not allow for abortions in cases of lethal fetal anomalies, unless they threaten the mother’s life.

But when Hall considered carrying this high-risk, no-reward pregnancy through to the end, she felt like she was "losing my mind. I would consider what I experienced that weekend a medical emergency."

Denied an abortion in Texas, Hall and her husband ended up scrambling to travel to a clinic in Seattle that specializes in these cases, where she was greeted by angry protesters who had also traveled from Texas.

She returned home a few days later mired in a confusing mix of grief and anger, and a few months later, signed onto the lawsuit with the hope that no one would ever have to undergo that experience again.

"Providers are scared to treat cases like ours without guidelines from the state, and more people will suffer (and lose their lives) if a change is not made," Hall said at a press conference announcing the lawsuit. "I love Texas, and it kills me that my own state does not seem to care if I live or die."

In July 2023, almost a year after the laws went into effect, three of the plaintiffs testified at a historic hearing, the first time individual women have testified about the impact of abortion laws on their pregnancies since Roe v. Wade was decided in 1973.

As they told their stories of much wanted pregnancies gone awry, and the way their doctors’ inability to act worsened their pain, the women were overcome — one sobbed, unable to get her words out; another fled the courtroom immediately after; another threw up in her hands.

An Austin judge sided with the plaintiffs and granted an injunction, ruling that the attorney general should not be able to prosecute doctors who, in their "good faith judgment" terminate a pregnancy that presents a risk of infection; if the fetus will not survive after child birth; or when the pregnant patient has a condition that requires regular, invasive treatment.

Immediately, Texas Attorney General Ken Paxton appealed to the state Supreme Court, temporarily blocking the order from going into effect. The Supreme Court heard arguments in November.

At that hearing, assistant attorney general Beth Klusmann said the Texas Legislature had set a high bar for when a patient might qualify for an abortion, "but there is nothing unconstitutional in their decision to do so." Justice Jimmy Blacklock, former general counsel for Gov. Greg Abbott, said he believed the injunction the plaintiffs were requesting "could open the door far more widely" for people seeking abortions.

Molly Duane, senior staff attorney at the Center for Reproductive Rights, which is representing the plaintiffs, acknowledged that the district court ruling is "doing more work than normal," but said it was because "legislators don’t usually write laws that people who are regulated by those laws simply do not understand."

The Cox case

In that hearing, Klusmann argued that the women who filed this lawsuit didn’t have a right to sue because they were not currently seeking abortions. A week later, the Center for Reproductive Rights filed a lawsuit on behalf of Kate Cox, a 31-year-old Dallas mother who was actively pregnant and seeking an abortion.

Cox’s pregnancy was nonviable and, her lawyers said, she had been to the emergency room repeatedly for complications. Her case made many of the same arguments as the Zurawski case, but asked for an immediate ruling.

For the first time since before Roe v. Wade, a judge intervened to allow a competent adult woman to terminate her pregnancy.

"The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice," state District Judge Maya Guerra Gamble.

Paxton appealed that ruling to the Texas Supreme Court, which put it on hold. While they deliberated, Cox’s condition deteriorated to the point that she needed to travel out-of-state to get an abortion, her lawyers said.

The court ultimately rejected Cox’s request for an abortion, ruling that while "any parents would be devastated to learn" of a fetal diagnosis like this, "some difficulties in pregnancy…even serious ones, do not pose the heightened risks to the mother the exception encompasses."

The court did call on the Texas Medical Board to issue guidance to help doctors better understand when they can perform an abortion in the eyes of the law. That guidance, which has not yet been finalized, has been criticized for offering little reassurance and, in some cases, confusing the issue further.

Friday’s ruling

In Friday’s ruling, the court ruled that only one of the 22 plaintiffs in the Zurawski suit had standing to sue — Karsan, the Houston OB/GYN who had agreed to perform Cox’s abortion.

"We conclude that the Attorney General directly threatened enforcement against Dr. Karsan in response to her stated intent to engage in what she contends is constitutionally protected activity," the justices wrote. "A state official’s letter threatening enforcement of a specific law against a plaintiff seeking relief from such enforcement is a sufficient showing of a threat of enforcement to establish standing to sue."

The trial court ruled in the injunction that a doctor should be allowed to perform an abortion when they deemed it necessary in their "good faith judgment." Friday’s ruling found the trial judge overstepped, and said the way the law is written — allowing abortions based on a doctor’s "reasonable medical judgment" — is clear enough.

While the Center for Reproductive Rights raised concerns in the lawsuit that a doctor would have to defend their reasonable judgment against a panel of other doctors who might have decided differently, the court said it was actually the opposite — to bring a case against a doctor, the state would first have to "prove that no reasonable physician would have concluded" that the abortion was the right call.

In the ruling, the justices acknowledged the tragedy of these cases, but agreed with the state that the laws are clear — and it was doctors who were misinterpreting them.

"With a diagnosis based on reasonable medical judgment and the woman’s informed consent, a physician can provide an abortion confident that the law permits it," they ruled. "Ms. Zurawski’s agonizing wait to be ill ‘enough’ for induction, her development of sepsis, and her permanent physical injury are not the results the law commands."

Zurawski and Karsan were the only plaintiffs named in the ruling, which the Center for Reproductive Rights and the plaintiffs condemned in a press conference afterwards.

"Reading this was a gut punch. I read the ruling. I felt like I had missed something. And so I immediately reread it, and I realized what was missing in those pages was us. We weren't there. We didn't exist," said Lauren Miller, a Dallas mother who traveled out-of-state after learning one of her twins would not survive and was threatening her health and the health of the other fetus. "The ruling refers to the Center, but not the 20 plus of us who went through just heartbreaking, tragic circumstances."

Elizabeth Weller, one of the women who sued, began her comments by saying, "I am not the Center for Reproductive Rights. I am Elizabeth Weller, and I'm a plaintiff who was directly harmed by the laws and the way that they are written in the state of Texas."

The trial court also ruled that Texans should be allowed to terminate their pregnancies if the doctor has determined the fetus would not survive after birth. The supreme court rejected that argument.

"As painful as such circumstances are, that the law does not authorize abortions for diagnosed fetal conditions absent a life-threatening complication to the mother does not render it unconstitutional," they wrote.

Justice Busby, joined by Justice Debra Lehrmann, issued a concurring opinion raising the potential for future challenges on the grounds of vagueness, writing that "at first glance, respondents’ expressed confusion about this exception is understandable."

"We must keep in mind the Legislature’s obligation—and our own—to speak clearly and specifically lest we unintentionally resolve an ambiguity in the statutory language or contribute to confusion where no ambiguity exists."

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/05/31/texas-supreme-court-zurawski-abortion

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