Center For Reproductive Rights Litigation Director Discusses the High Stakes of Abortion Litigation 

The Texas Supreme Court today rejected a constitutional challenge to the state’s strict abortion ban. The case, Zurawski v. Texas, was brought by women who were unable to obtain abortions despite severe pregnancy complications and physicians who were prevented from providing abortions they felt were medically necessary.

We recently spoke to Beth Brinkmann, the senior litigation director at the Center for Reproductive Rights, where she leads litigation strategy for cases throughout the country. The Center for Reproductive Rights represents the plaintiffs in Zurawski and multiple other abortion rights cases across the country. The lead plaintiff in that case, Amanda Zurawski, learned at 18 weeks of pregnancy that her baby would not survive. Because of confusion over the exceptions to Texas’s abortion ban, doctors would not perform an abortion until she was septic, leading to permanent damage to her body and her odds of becoming pregnant again. Zurawski and other plaintiffs sought clarification about what constitutes a medical emergency that allows a doctor to perform an abortion under the ban.

The court declared that the medical emergency exception allows people experiencing life-threatening complications to receive an abortion under the law, rejecting a lower court’s broader ruling that would include conditions that pose serious risks to health and situations where the fetus has a lethal condition and will not survive. It dismissed the plaintiffs’ constitutional claims.

This interview was conducted before the Texas Supreme Court’s decision in Zurawski. It has been edited for brevity and clarity.

Erin Geiger Smith: Your organization represents plaintiffs in Texas, including women who were denied abortion care and two physicians, as well as in similar litigation in Tennessee. Can you tell me about those cases?

Beth Brinkmann: The Texas case, Zurawski, was argued in front of the Texas Supreme Court in November 2023. There are more than 20 plaintiffs now. The plaintiffs are women who experienced intense physical and emotional suffering because doctors could not provide them with abortion care under the state’s abortion ban, even as they experienced a medical crisis. Some were forced to deliver when doctors knew there would be no surviving child. Others developed life-threatening infections and almost died. One of the challenges from the state was that we did not have standing, including because some of the patients may have lost their fertility and can’t get pregnant again — it’s outrageous. But we have such an array of patients who have suffered such significant harm in all kinds of different circumstances that it really presents the issue squarely for the supreme court.

Recently, the Texas Medical Board released some proposed guidance on what constitutes a medical exception to the abortion ban. We filed comments explaining how that guidance is inadequate. So, there will be more review of that.

In Tennessee state court, we filed a lawsuit on behalf of several pregnant women denied an abortion despite medical complications and physicians who have been prevented from providing abortion care during medical emergencies. We’re asking for clarification of the exceptions to the state’s abortion ban, arguing it is too narrow and is not clear enough to enable physicians to provide life-saving and health-preserving care without fear of criminal liability. We had an eight-hour hearing recently on a temporary injunction request and the state’s motion to dismiss. So we’re waiting for a ruling on those two motions.

Geiger Smith: What is it like to be litigating these abortion cases in state court amid the constant political storm?

Brinkmann: A really important aspect of our Texas litigation — both in the Zurawski case and in the Cox case, which involved a woman whose fetus had a fatal diagnosis and who asked the court to allow her to have an abortion to protect her health — is that we won in the state trial courts. We’re still actively litigating a state case in Idaho on the medical exception in which we also won in the trial court against the state’s motion to dismiss. We are relentlessly litigating these cases and getting favorable rulings from these lower courts. That’s really something important to hold onto.

Things are changing so quickly in favor of reproductive rights in so many places. We had successful ballot initiatives, for example, in Michigan and Ohio, which enshrined abortion rights in the constitutions of those states. We have more coming up, including in Arizona and Florida. It’s a very dynamic situation in which to be litigating.

Geiger Smith: Can you give us an example of the kinds of arguments relevant in lawsuits over the scope of medical exceptions allowed under the different abortion bans?

Brinkmann: In the state case in Idaho trial court on the medical exception, for example, we’re bringing claims under the Idaho state constitution, which includes protections for inalienable rights to life, happiness, safety, and equal protection. We’re arguing that those rights require access to life-saving and life-preserving health care. That includes not having to wait for a patient to be on the verge of death. It includes preserving a pregnant patient’s health, including fertility, and it includes when there is a fatal fetal diagnosis.

Geiger Smith: The U.S. Supreme Court recently heard arguments in Moyle v. United States, a case about whether Idaho’s abortion ban interferes with a federal law that requires hospitals to provide emergency care. What were your takeaways from the arguments?

Brinkmann: The federal law at issue is the Emergency Medical Treatment and Active Labor Act and it requires covered hospitals — which is anyone who receives Medicare, so almost every hospital — to provide stabilizing treatment for emergency medical conditions. That has always been understood to include abortion care as required stabilizing care. That federal statute is clear that stabilizing care is required if the condition of the patient could reasonably be expected to result in serious jeopardy to health, serious impairment to bodily functions, or serious dysfunction of a bodily organ. The Idaho statute that bans abortion with criminal penalties has an exception only if necessary to prevent the death of the pregnant patient.

So, the question is whether the federal statute, under federal preemption contained in the Supremacy Clause, overrides that extremely narrow state exception. During the argument, the attorney for Idaho seemed to make several contradictory claims about the scope of that Idaho exception, and the justices pressed him specifically on whether the exception should have allowed an abortion for a woman who had a ruptured amniotic sac at 14 weeks. Justice Sonia Sotomayor noted that the patient was in and out of the hospital up to 27 weeks, that after they had to deliver her baby, the baby died. She went on to recount how the woman had a hysterectomy and can no longer have children. Justice Amy Coney Barrett said she was “shocked” that Idaho’s counsel seemed to be hedging around whether or not the woman’s experiences would fall within the exception.

But when you look at the statute, and particularly the recent Idaho Supreme Court opinion addressing abortion rights — which held that the Idaho constitution does not protect abortion as an implicit fundamental right— it’s clear there’s a conflict between those two different provisions and that federal law requires prevention of abortion as stabilizing care.

Geiger Smith: Were discussions of the injuries women might face if the Idaho ban trumps the federal emergency care requirement a notable part of the arguments?

Brinkmann: We filed an amicus brief setting out many examples of our patient clients who have faced serious harm to their health and to bodily functions, and that harm was caused by delayed or denied abortion. That really made clear that these are not hypotheticals. And several of the justices recognized that and asked about the specific examples in some of the briefs. In addition to the justices’ discussion with counsel about the patient with the ruptured amniotic sac, Justice Elena Kagan inquired about the application of the exception to an ectopic pregnancy, and Justice Sotomayor asked if what happened to a Florida woman – she was denied an abortion and discharged because she was not yet in immediate peril, and nearly bled to death later – would have happened to a woman in Idaho in similar circumstances. Other justices referred to them as hypotheticals, but these are actual critical medical experiences of patients. I think that message was conveyed and the gravity of what is at issue.

Geiger Smith: When you present cases about abortion care to courts, how important has it been to bring in specific, personal stories?

Brinkmann: It’s a very important part of the litigation. The trial court in Moyle listed specifically the kinds of emergency medical conditions that would be covered by the federal emergency act, including complications or conditions like rupturing of the amniotic sac, placental abruption, uncontrollable bleeding, uncontrollable uterine hemorrhage, hysterectomy, kidney failures, pre-eclampsia. And at the Supreme Court arguments, the justices, particularly the women justices, were very comfortable and conversant with talking about ectopic pregnancies and other circumstances. To me, that reinforced how critical it is that the actual, harrowing experiences of patients are repeatedly demonstrated to understand what is at stake here — the health and life of patients, and that includes the patient’s fertility long term.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.