From The Texas Tribune:
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.
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.
