Texas and the Next Generation of Abortion Fights

UPDATE: On December 12, 2023, the Texas Supreme Court ruled against Kate Cox, saying her doctor did not adequately assert that Cox’s condition met the exception to the state’s abortion bans. The state’s restrictive abortion laws allow the procedure if it is necessary to protect a pregnant person’s life or health. The court explained that although the doctor, Damla Karsan, said she had a “good faith belief” that Cox met the exception’s requirements, she did not assert that Cox had a “’life-threatening physical condition’ or that, in [Karsan’s] reasonable medical judgment, an abortion is necessary because [Cox] has the type of condition the exception requires.”

The court rejected the argument that Texas’s abortion laws deter doctors from providing an abortion “until the mother is within an inch of death.” Rather, it said, “the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day.” Moreover, the court added, a woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. These points “provide some clarity about the legal standards and framework for this sensitive area of Texas law,” the court concluded.

The court’s reasoning does not bode well for the plaintiffs in Zurawski v. State of Texas. There, women denied abortions and board-certified obstetricians say the lack of clarity about what constitutes a medical emergency under Texas’s bans deters doctors from providing medically necessary abortions — with disastrous consequences, including life-threatening infection, harm to future fertility, and emotional trauma. They ask the court to clarify the scope of the exception and broadly interpret what constitutes a medical emergency. Such a clarification is necessary, they say, to ensure the laws comply with state constitutional guarantees to equal rights, freedom from discrimination, and due process. Karsan is also a plaintiff in that case. 

In its ruling in Cox, the court noted that it was not ruling on the state constitutional issues raised in Zurawski, and leave these issues for “future resolution.”

By the time of the ruling, Cox had already left Texas to obtain an abortion elsewhere.

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Last week a pregnant woman, Kate Cox, along with her husband and her doctor, filed a lawsuit in Texas seeking a court order authorizing an emergency abortion. It’s the first lawsuit of its kind since Roe v. Wade was overturned last year. Cox’s case illustrates an emerging set of battles to define the scope of legal exceptions to strict state abortion bans.

Cox, who is 20 weeks pregnant, recently learned that her fetus has a fatal genetic condition. Her doctors say she faces health and fertility risks if she continues her pregnancy, including potential uterine rupture. Cox argues that the medical exceptions to Texas’s laws banning abortion permit an abortion in her circumstances, or alternatively, that the bans violate the state constitution as applied to her emergency situation. Texas Attorney General Ken Paxton argues that Cox is ineligible for an abortion under Texas law.

After a trial court judge granted a temporary restraining order on Thursday permitting Cox’s doctor to perform an abortion, on Friday night the Texas Supreme Court halted the order, “without regard to the merits,” as it considers the case. The state high court hasn’t provided a timeline, and on Monday it was reported that Cox was leaving the state in order to receive care.

Cox’s case is being considered weeks after the Texas Supreme Court heard arguments in Zurawski v. State of Texas, a case seeking to clarify what counts as a “medical emergency” under the state’s broad abortion bans. Last week State Court Report Managing Editor Kathrina Szymborski Wolfkot covered the case. She explained that plaintiffs — including women who suffered harrowing results because they were denied abortions — argue that legal risks and ambiguities in the state’s abortion laws deter doctors from providing medically necessary abortions.

Paxton’s conduct in Cox’s case underscores the pressures on doctors in Texas. After the lower court issued a temporary restraining order and before the state high court issued its stay, Paxton sent a letter to hospital officials in Houston, where Cox’s doctor practices, threatening criminal and civil penalties despite the lower court order. Among other things, Paxton argued that the order did not bar actions brought by private citizens or the enforcement of pre-Roe abortion laws.

While it remains to be seen how the Texas Supreme Court will rule in the Zurawski and Cox suits, both are examples of an incrementalist approach to preserving or reestablishing abortion protections — an emerging trend in states with conservative courts unfriendly to broad reproductive rights. As University of California, Davis law professor Mary Ziegler has argued in State Court Report, “a right to avert death or serious health threats” has already emerged as a “narrower foundation for abortion rights” in several states.

Indeed, last month the Oklahoma Supreme Court temporarily halted three state laws on the basis of a “limited right” to abortion under the state constitution in life-threatening circumstances. In March, the North Dakota Supreme Court upheld a preliminary injunction blocking the state’s abortion ban based on a right to an abortion to preserve a pregnant person’s life or health. In Indiana, a lawsuit filed last month seeks to broaden the scope of exceptions to that state’s abortion ban after the state supreme court rejected a broader challenge while noting a right to abortion to protect life or health.

Blue states are also seeing new forms of abortion litigation. In New Mexico, abortion is legal under state law. But since the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that there is no federal right to abortion, several New Mexico localities have passed ordinances establishing “sanctuaries for the unborn” that criminalize the procedure or restrict abortion clinics within their borders. On Wednesday, the New Mexico Supreme Court will hear a challenge by the state to these ordinances.

In an oral argument preview, Northeastern University law professor Martha F. Davis explains that the New Mexico case raises the question of whether state law preempts local ordinances on abortion. The case, however, comes “with a twist”: the ordinances incorporate provisions of the federal Comstock Act, a long unenforced 19th-century law that outlaws the mailing of abortion-related medications. But while the localities contend that the Comstock Act creates a federal law basis for their ordinances, Davis argues that ultimately the case comes down to the scope of state preemption, which is a state law question.

In the immediate aftermath of Dobbs, most state abortion litigation focused on state constitutional challenges to abortion bans. But the New Mexico and Texas cases illustrate the breadth of legal issues that emerge in the absence of a federal constitutional floor. As Davis notes, while Roe v. Wade “shifted the focus of both pro-choice and anti-abortion activists to federal law,” now “the war is again being waged in full force at every level of government,” with federal, state, and local law all in play — raising questions of preemption and supremacy.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.