Texas Supreme Court Rejects Call to Clarify Exception to Abortion Ban 

The Texas Supreme Court rejected today a constitutional challenge to the state’s strict abortion laws, holding that the language that provides exceptions to allow abortions when the life of the mother is threatened is sufficiently clear and that the laws are enforceable. The court also ruled that the exceptions do not allow an abortion when a fetus abnormality means it is unlikely to survive if the pregnant person’s health is not also severely threatened.

“As women across the country are finding out, exceptions to abortion bans are illusory and it is dangerous to be pregnant in any state that bans abortion,” Nancy Northup, president of the Center for Reproductive Rights and counsel for the plaintiffs, said about the opinion.

The high-profile case, Zurawski v. Texas, was brought by 20 women who said they were denied medically necessary abortions because their doctors feared liability under Texas’s abortion laws. The plaintiffs also included physicians who claimed the bans prevented them from meeting their ethical obligations to provide medical care to patients in need. They asked the court to clarify what constitutes a “medical emergency” under the state laws, and to prevent enforcement of three set of laws — which include steep fines and up to life in prison for physicians who violate the abortion bans — against physicians who perform an abortion under a good faith belief it was necessary for the health of the woman.

Each of the laws at issue permits abortions performed to save the life of the mother, though their language differs.

The complications suffered by the plaintiffs as a result of being denied abortion care included life-threatening infections, harm to future fertility, and emotional trauma. In August, a Texas lower court judge temporarily issued an injunction blocking the bans in cases of dangerous pregnancy complications like those experienced by the named plaintiff, Amanda Zurawski, whose amniotic membrane prematurely ruptured and who did not receive abortion care until she was septic and suffered damage to her fallopian tubes. The supreme court today vacated that injunction.

The court said that Zurawski and women like her — those suffering life-threatening complications — are already eligible for abortion care. “Ms. Zurawski’s agonizing wait to be ill ‘enough’ for induction, her development of sepsis, and her permanent physical injury are not the results the law commands,” the opinion said, adding that a physician may intervene to address a woman’s life-threatening physical condition before death or serious physical impairment are imminent.

“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 opinion said.

The Center for Reproductive Rights, on behalf of the plaintiffs, asked the court to interpret the Texas laws to allow physicians to exercise their “good faith” judgment, arguing that the statutory language of “reasonable medical judgment” left medical providers in fear that another physician later offering a different opinion would leave them open to liability. Though the trial court adopted the “good faith” language in issuing its injunction, the supreme court found the change would result in improperly amending the enacted law.

“The trial court’s order opens the door to permit abortion to address any pregnancy risk,” the court wrote. “All pregnancies carry risks.”

The court further clarified that Texas law “plainly does not permit abortion based solely on a diagnosis that an unborn child has an abnormal condition, even a life-limiting one.” This means that Texas women carrying fetuses with severe abnormalities or those unlikely to survive after birth must carry the pregnancy to term.

The court also denied the plaintiffs’ claims that the laws violated their constitutional right to equal protection, citing earlier decisions that such laws are not directed at women as a class, but instead abortion as a medical treatment, and one that serves a legitimate governmental purpose.

A December 2023 decision by the Texas Supreme Court in a case brought by Kate Cox, who sought permission for an abortion after her 20-week-old fetus was diagnosed with a fatal genetic condition seemed to cast doubt on the chances of success for the Zurawski plaintiffs. In that case, Cox argued an abortion was necessary to protect her from harm and preserve her future fertility. The court said her doctor did not adequately assert that her condition met the exception to the state’s abortion bans.

The lawsuit is one of several brought by the Center for Reproductive Rights and others seeking interpretations and expansions of the medical exceptions to strict abortion bans.

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