A group of women whose lives were endangered by Texas’ ban on abortion presented a lawsuit challenging the ban’s provisions at a packed Texas Supreme Court hearing on Tuesday.
Texas has several abortion bans in place, including what’s known as SB 8, which together outlaw all abortions except those made necessary by a medical emergency threatening the life of the mother. The suit, filed by the Center for Reproductive Rights, claims that the “medical emergency” language is so vague that doctors can’t determine when they can legally perform an abortion. It seeks to force the state to adopt new language to clarify that a doctor may legally terminate a pregnancy when the mother has a physical condition or complication that makes her pregnancy unsafe or when doctors determine that the fetus will not survive outside the womb.
Twenty-two women have signed on to the lawsuit, including several who suffered sepsis, a life-threatening infection, before doctors agreed to terminate their nonviable pregnancies. Two of the plaintiffs are mothers who were pregnant with twins and were forced to travel out of state to get abortions to terminate one nonviable fetus in order to save the other. Another plaintiff was forced to give birth to a baby with no chance of survival, only to watch the infant suffocate to death.
Assistant Attorney General Beth Klusmann represented the state and the Texas Medical Board. She argued to the eight Supreme Court justices in attendance (three women, five men) that it is doctors, not legislators, who are responsible for the trauma the pregnant mothers suffered.
“Some of these women appear to have fallen within the [medical] exception but their doctors still said no,” Klusmann said. “That’s not the fault of the law, that’s a decision of the doctor.” When Justice Debra Lehrmann asked Klusmann to provide a “bright-line definition” of a medical emergency – something that would be very helpful to a doctor – Klusmann demurred, referring the justice to the wording of state law adopted 20 years ago, which defines the term only as “a life-threatening physical condition” associated with pregnancy.
Justice Rebecca Huddle asked Klusmann if the medical emergency exception applies to fetuses that doctors decide can’t live outside the womb. Klusmann replied that her reading of the law is that it does not allow the termination of such pregnancies.
Attorney Molly Duane of the Center for Reproductive Rights said the “non-medical terminology” of the abortion ban had the effect of frightening doctors into refusing to perform abortions that were clearly necessary. “The abortion bans as they exist today subject physicians to the most extreme penalties imaginable – life in prison and loss of their medical licenses,” she said. “While there is a medical exception to the bans, nobody knows what it means and the state won’t tell us.”
The Supreme Court will likely issue its opinion on the lawsuit this spring. At a press conference on Tuesday at the Capitol, Amanda Zurawski, the lawsuit’s lead plaintiff, reminded everyone that the struggle for abortion access will not go away. “The barbaric restrictions our lawmakers have passed are having real-life implications on real people,” Zurawski said. “The people in the building behind me have the power to fix this, yet they’ve done nothing.”
This article appears in November 24 • 2023.
