This story was written by Marin Wolf. It was originally published by the Tribune News Service here: https://delivery.tribuneconten...
Dallas, Texas — The Texas Supreme Court has ruled against the more-than-20 Texas women who sued the state over abortions they said were delayed or denied during medical emergencies because of the state’s bans on the procedure.
The justices unanimously struck down a lower court’s decision that would have exempted any Texan with a complicated pregnancy from the bans. Texas law already permits a life-saving abortion when a woman is at risk of death or significant physical harm, the state supreme court opined, and the trial court’s injunction “departed from the law as written without constitutional justification.”
“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 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 case, Zurawski vs. State of Texas, drew national attention as nearly two dozen plaintiffs shared their stories of seeking abortion care under the abortion bans that changed Texas’ legal landscape beginning in September 2021. The lawsuit also included doctors who said their hands were tied by threats of fines, jail time or loss of their medical licenses.
“This ruling does not provide any real clarity to doctors, and it is deeply offensive to the women we represent—they are completely written out of the opinion as though they don’t exist or matter,” said Nancy Northup, President and CEO of the Center for Reproductive Rights, which filed the case on behalf of the plaintiffs.
The center first filed the case on behalf of the women in March of last year, adding additional plaintiffs in the following months.
The case saw brief victory in August when Travis County Judge Jessica Mangrum granted their request for the temporary injunction that would exclude from the bans anyone with a medically complicated pregnancy, including those with fatal fetal diagnoses.
Attorney General Ken Paxton’s office immediately appealed the decision directly to the Supreme Court, halting the injunction.
Texas’ top court heard oral arguments in the case for less than an hour in late November. Justices questioned representatives for the state and plaintiffs on whether the women had standing to bring the case and whether the state was the right target for lawsuits regarding how the abortion bans are implemented.
The state’s attorneys argued the women’s complaints should lie not with the state, but with their own doctors.
“The plaintiffs include women who suffered serious complications during their pregnancies — situations filled with immense personal heartbreak,” the state supreme court wrote. “The State does not contest that at least some of these complications present life-threatening conditions for which an abortion may be indicated.”
Lead plaintiff Amanda Zurawski detailed how her water broke prematurely, a condition known as preterm prelabor rupture of membranes, leaving her unborn daughter Willow with no chance of survival. Because her condition was not considered to be life-threatening, doctors sent her home. She returned three days later in septic shock.
Ultimately, Zurawski lost her baby and suffered permanent damage to one of her fallopian tubes, hindering her ability to carry pregnancies in the future.
Zurawski’s experiences “are not the results the law commands,” the Supreme Court opinion states.
The injunction, however, went too far by permitting abortions for any unsafe pregnancy, the Justices ruled.
“While merely being pregnant may increase a mother’s risk of death or injury, pregnancy itself is not a ‘life-threatening physical condition’ under the law,” the opinion says.
Seema Mohapatra, a health law expert at Southern Methodist University, said Friday’s opinion largely puts the onus on physicians to make legal decisions.
Doctors across the state have raised concerns about the three overlapping abortion bans, saying they lack clarity on exactly when medical professionals may intervene.
In a December opinion issued in the case of Kate Cox — a North Texas woman who sought permission to get an abortion for a fatal fetal anomaly — the Texas Supreme Court said that the Texas Medical Board had the authority to issue guidance on how doctors practice under the laws.
The medical board began the rule-making process earlier this year, accepting feedback on potential guidelines. Physicians, lawyers and patients alike decried the rules as currently proposed, saying they offer little clarification and could make working under the bans even more difficult.
The draft guidance includes provisions on how doctors should document abortion cases, including denoting whether there was “adequate time to transfer the patient” to another hospital to avoid performing the procedure.
Dr. Damla Karsan, plaintiff in both the Zurawski and Cox cases, asked the state to allow her to perform Cox’s abortion under the medical emergency exemption. The court ruled that Cox’s situation did not meet the conditions required for the exemption while also stating that physicians alone have the discretion to exercise their “reasonable medical judgment” with each unique situation.
Karsan was the only plaintiff in the Zurawski case, however, to find some support in Friday’s opinion. The Texas Supreme Court said that Karsan had standing to challenge the Attorney General’s enforcement of the ban against her after he sent three letters to Houston hospitals threatening liability if the hospitals allowed Karsan to perform the abortion for Cox, who was not a plaintiff in the Zurawski case.
“The court looked at that and said, ordinarily, we don’t look at things outside the complaint to decide standing,” Mohapatra said. “But the fact that they did bring those kinds of cases shows that she was under threat, so she definitely had reason to bring the case. It’s interesting, because I wonder what would have happened if they had not done that.”
It was the Cox decision that made Mohapatra and Amy O’Donnell, communications director of Texas Alliance for Life, confident that the Supreme Court would rule against the plaintiffs in the Zurawski case.
“I was surprised by [the Cox decision]. I would have thought that in that situation it would meet the case for life-threatening,” Mohapatra said. “The [Zurawski] opinion makes clear, even though they don’t talk about it at all, that unless the life of the pregnant person is at risk, it doesn’t protect other situations.”
O’Donnell, who represents one of Texas’ major anti-abortion organizations, said Friday’s decision was a win.
“We are thrilled to see the Supreme Court of Texas allow legal protections from elective abortions for unborn babies to continue while acknowledging that doctors can perform abortions to save women’s lives,” O’Donnell said. “This is just what our Texas Legislature intended.”
The future of the Zurawski case remains unclear. Nancy Northup of the Center for Reproductive Rights said that the legal team is assessing whether any of the plaintiffs’ claims could still be addressed.
