Texas Supreme Court to Determine Scope of ‘Medical Emergency’ Exceptions to Abortion Bans
UPDATE: On December 12, 2023, in a separate case, the Texas Supreme Court ruled against a woman seeking permission for an abortion after her 20-week-old fetus was diagnosed with a fatal genetic condition. Attorneys for the woman argued that an abortion was necessary to protect her from harm and preserve her future fertility. The high court said her doctor did not adequately assert that her condition met the exception to the state’s abortion bans.
The following article was originally published on November 27, 2023:
The Texas Supreme Court hears oral argument tomorrow in a case seeking to clarify what counts as a “medical emergency” under the state’s abortion bans. The plaintiffs also raise claims under state constitutional guarantees to equal rights, freedom from discrimination, and due process.
The plaintiffs are 20 women who assert they were denied medically necessary abortions because their doctors feared liability under Texas’s abortion bans — with devastating results, including life-threatening infection, harm to future fertility, and emotional trauma. Two board-certified obstetricians have also joined the case as plaintiffs, claiming that the bans prevent them from meeting their ethical obligations to provide medical care to patients in need.
The case, Zurawski v. State of Texas, concerns three separate Texas abortion laws. First, under a “trigger ban” designed to immediately go into effect after the U.S. Supreme Court overturned Roe v. Wade, people who “perform, induce, or attempt an abortion” can face life in prison. Second, Senate Bill 8 prohibits abortions in Texas if the embryo or fetus has any detectible cardiac activity. It allows any individual who is aware of an abortion to seek $10,000 from anyone who aided or abetted the medical procedure. Third, Texas reinstated the decades-old ban struck down in Roe v. Wade — a case that originated in Texas in 1970 to challenge a state law making abortion illegal except to save a pregnant person’s life.
Each of these bans has one exception: abortion is permissible if it is necessary to protect a pregnant person’s life or health. But the plaintiffs argue that the steep penalties doctors and other medical providers can face under the bans make them afraid to rely on the exception. Moreover, they say, it is not clear under the laws what constitutes a medical emergency sufficient to meet the exception. Together, these legal risks and ambiguities deter doctors from providing an abortion until they cannot detect a fetal heartbeat or until the pregnant person is close to death.
As a result, the plaintiffs say, people across Texas are experiencing intense physical and emotional suffering. The plaintiffs’ own stories are harrowing. The lead plaintiff, Amanda Zurawski, states that she was overjoyed when she learned she was pregnant after years of struggling against fertility issues. But at 18 weeks of pregnancy, her amniotic membrane prematurely ruptured. Doctors told her that her baby would not survive and that she was at risk of serious infection. Yet, because of Texas’s restrictive and confusing abortion laws, she claims that she was forced to wait until she was septic to receive abortion care and spent three days in the ICU. The infection caused one of her fallopian tubes to close and Zurawski is now struggling to become pregnant again today — with lower odds of having children because of the permanent damage to her body from the ordeal.
A Texas district judge issued an injunction on August 4 blocking Texas’s abortion bans in cases of dangerous pregnancy complications like those experienced by Zurawski. The judge said that doctors should use their good faith medical judgment to determine whether a medical emergency exists. She specified that, at a minimum, abortion is warranted if there is a complication that makes continuing a pregnancy unsafe for the pregnant person, a pregnant person has a medical condition exacerbated by pregnancy that requires multiple invasive interventions, or there is a fetal condition where the fetus is unlikely to “sustain life after birth.” The judge also found that any narrower interpretation of the bans would violate the rights of pregnant persons and physicians under Texas’s equal rights provision, anti-discrimination clause, and protection against the deprivation of “life, liberty, property, privileges, or immunities.” The state appealed the decision, which, under Texas law, had the effect of halting enforcement of the injunction as the appeals proceed.
Since the U.S. Supreme Court eliminated a right to abortion under the U.S. Constitution in Dobbs v. Jackson Women’s Health Organization, abortion rights groups have turned to state courts and state constitutions to protect reproductive freedoms. Like in Zurawski, plaintiffs in many states do not seek to overturn abortion bans — they simply ask that the laws be interpreted less restrictively. This incrementalist approach to combatting abortion restrictions has met some success, including in Oklahoma and North Dakota. Suits in Tennessee, Indiana, and elsewhere also seek to chip away at bans by clarifying the scope of exceptions.
The Texas case, in particular, has been the subject of much media attention. Its focus on the suffering by those most impacted by these laws — including the emotional testimony of the plaintiffs before the trial court — put a face on the struggle for reproductive care. And their stories seem to resonate with a public that tends to support at least some access to abortion.
It is now up to the Texas Supreme Court to decide the extent to which the Zurawski plaintiffs and countless pregnant people across Texas will have access to life-saving medical care.
Kathrina Szymborski Wolfkot is the managing editor of State Court Report and senior counsel in the Judiciary Program at the Brennan Center for Justice.