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Amanda Zurawski, left, who developed sepsis and nearly died after being refused an abortion when her water broke at 18 weeks, and Samantha Casiano, center, who was forced to carry a nonviable pregnancy to term and give birth to a baby who died four hours after birth, stand with their attorney Molly Duane outside the Travis County Courthouse, July 19, 2023, in Austin, Texas.
“You are testing my medical knowledge here,” Texas Assistant Attorney General Beth Klusmann commented before she launched into her answer to a question from Texas Supreme Court Justice Rebeca Aizpuru Huddle. The justice wanted the attorney to explain whether acrania, a rare condition that results in the death of a fetus before or shortly after birth, would allow a pregnant person to have an abortion under Texas law. They discussed the issue for several minutes before Klusmann said that it would be up to the state legislators to specify whether an abortion would be allowed for that fatal fetal anomaly.
The brief back-and-forth illuminates the challenges that lawyers and judges and state lawmakers face as they tease out the constitutional issues from the complex medical complications faced by the dozens of pregnant people who find themselves in extreme physical and mental distress, but cannot obtain an abortion.
On Tuesday, the Texas Supreme Court heard arguments in Zurawski v. State of Texas. The lawsuit, brought by 20 women and two obstetrician/gynecologists, argues that the state’s abortion laws lack clarity on what constitutes a medical emergency and the attorney general and the members of the state’s own medical board have not stepped in to clear up the confusion. The justices must decide whether to uphold a Travis County District Court temporary injunction issued in August that bars the state from enforcing abortion bans involving people facing life-threatening pregnancy emergencies. Texas Attorney General Ken Paxton quickly challenged the ruling, which blocked it from taking effect.
Texas lawmakers and state attorneys have crafted abortion statutes using nonmedical language that has forced doctors into a perverse situation of having to choose between protecting their lives and livelihoods and their patients’ need to abort a pregnancy to protect their health. Medical professionals are unable to translate vague terminology into treatment plans that do not run afoul of state laws—laws that the public officials overseeing and enforcing them refuse to make plain.
There are three abortion bans in place in Texas: a trigger ban that prohibits abortion; SB 8, a law that empowers private citizens to report people who obtain or help someone obtain an abortion; and a pre-Roe criminal ban that has not been legislatively repealed, and is still on the books.
Texas law stipulates that a doctor using “reasonable medical judgment” can perform an abortion if there is a “medical emergency” that constitutes “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.”
At first glance, those provisions appear to be straightforward. But nothing about abortion law is straightforward today. What does “reasonable medical judgment” mean? What is a life-threatening condition? How substantial does impairment have to be—and what is a major bodily function compared to a minor bodily function?
A doctor who comes up with the wrong answers to those questions faces felony charges. A conviction means a sentence of up to 99 years in prison, loss of their license to practice medicine, and a fine of up to $100,000.
Since the Supreme Court struck down abortion, many Texas women have endured near-death experiences before doctors intervened to end the pregnancy.
Some of the state Supreme Court justices appeared skeptical about the state’s claim that the law is clear enough. Justice Debra Lehrmann asked for a “bright line rule as to what medical emergency means.” Klusmann responded that she could “only point the court to what the legislature has said” and proceeded to recite the statute almost verbatim.
“While there is technically a medical exception to the bans, no one knows what it means and the state won’t tell us,” Molly Duane, the Center for Reproductive Rights attorney for the plaintiffs, told the court. “The last two years are an aberration from a centuries long practice in Texas that allowed physicians broad discretion to provide abortion when necessary to preserve their patients’ lives.” She also reminded the court that the state’s own experts testified during an earlier trial court hearing that the laws lack clarity.
Astrid Ackerman, the center’s staff attorney, told the Prospect that paradoxically, Texas doctors in the mid-1800s had more discretion regarding pregnancy complications requiring abortions than doctors do in 2023. Moreover, in the period from 1856 to 1973, when the Roe v. Wade decision was handed down, the center found no examples in state medical journals or in the broader historical record of a doctor being prosecuted for performing a medically advised abortion. (Ackerman, who has also worked on the Texas case, says that attorneys for the state of Texas have not brought forward any examples either.)
Since the Supreme Court struck down abortion, many Texas women have endured near-death experiences before doctors intervened to end the pregnancy. In 2022, after a year and a half of in vitro fertilization treatments, Amanda Zurawski, the lead plaintiff, suffered preterm premature rupture of membranes (PPROM) in her 18th week of pregnancy. Initially, doctors would not perform an abortion because a heartbeat could still be detected. She eventually developed sepsis, an acute reaction to an infection. After three days in intensive care, she delivered a stillborn daughter; but her fertility was compromised. She is seeking to became pregnant again through IVF.
Ackerman says that some of the plaintiffs have described their ordeals as “torture.” “We’re really, really, really talking about people who are survivors of human rights violations,” she says.
To further confuse matters, this summer, Texas lawmakers passed a law regarding ectopic pregnancies and PPROM. According to Ackerman, if a physician has a patient who has either an ectopic pregnancy or PPROM, that doctor will still be unclear about whether the new law makes it a crime to provide an abortion for either condition. But what the physician does know is that they could face criminal prosecution. During that criminal process, a doctor can assert an affirmative defense and hope to avoid a prison sentence.
The state essentially argues that the law is not at issue, it is doctors who do not understand the law. Doctors can consult their hospital policies or medical societies, Klusmann claimed. But hospitals aren’t willing to make the call either. A Washington Post report found that 37 hospitals in states with abortion bans were unable to make medical sense of the statutory language. There is no guarantee that hospitals will back up their doctors either. One Texas woman’s doctor consulted the hospital’s ethics committee about providing an abortion for a patient; it denied the procedure.
However, Duane told the Texas high court, “A hospital can tell its physicians what it thinks the statute means. But it cannot prevent the Attorney General from going after a physician for violating the statute, which the Attorney General has shown a clear intent to do.”
Nevertheless, Klusmann stressed that the onus is on doctors to make the decisions based on their reasonable medical judgment. If a woman wasn’t satisfied with a doctor’s determination, Klusmann suggested that she could sue the doctors for medical malpractice, calling it “another tool available to bring clarity.” It was a strange position for a state attorney to be advising pregnant women in need of urgent care to pursue malpractice suits, especially since women believe that the problems lie with the state and not their doctors.
The state finds itself in the strange position of choosing not to furnish any guidance. The Texas Medical Board has been “eerily silent,” Duane said, and hasn’t responded to women who’ve sought clarifications. Nor has the attorney general issued any advisories.
The center has filed two similar lawsuits in Tennessee and Idaho seeking clarity about complex medical emergencies during pregnancies. Women and doctors in Florida and Texas are also facing some of the same issues. But even in states with “guidance,” doctors fear legal jeopardy. Louisiana has a list of 25 specific “medically futile” conditions where an abortion can be provided, and doctors continue to refuse to provide the procedure.
The Texas Supreme Court is considering the case.
