Doctors in red states across the country are too scared to perform legal abortions. A Texas lawsuit seeks to fix that in the biggest red state.
A lawsuit, recently filed in a Texas trial court, seeks to answer a question that has vexed lawyers, doctors, hospitals, and patients ever since the Supreme Court permitted the state to ban abortions: When can a Texas patient obtain an abortion in order to save their life or ward off serious health consequences?
Texas is famously one of the most anti-abortion states in the country — you may remember the Supreme Court fight over the 2021 Texas law that sics litigious bounty hunters on abortion providers — but even in Texas, it is legal for doctors to perform an abortion when one is necessary to protect the health or life of a patient.
Or, at least, it is supposed to be legal.
Before the new lawsuit was filed, stories about patients who suffered because they were unable to obtain abortions were already common. One Texas woman had a nonviable pregnancy that risked giving her a life-threatening infection, and was told she had to wait, as her body discharged blood clots and a strange-smelling yellow liquid, until she became sick enough to have an abortion. Her doctors eventually agreed to induce labor after her vagina started to emit a dark, foul-smelling fluid.
Another Texas woman, whose fetus had multiple defects that would prevent it from living more than a few minutes after birth, says she had to flee to New Mexico to receive an abortion that would protect her from blood clots, cancer, and a potentially fatal condition known as preeclampsia. Her doctor later warned her not to get pregnant again in the state of Texas.
Nor are these kinds of stories limited to Texas. Similar stories abound in states like Tennessee, Louisiana, and Idaho, which also have very strict abortion laws.
In theory, even after the Supreme Court’s anti-abortion decision in Dobbs v. Jackson Women’s Health Organization (2022), medically necessary abortions remain legal in all 50 states. Texas law, for example, is supposed to permit abortions when a patient is “at risk of death” or if they face “a serious risk of substantial impairment of a major bodily function.”
There’s also a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires most hospitals to perform emergency abortions to prevent “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.” (Though, notably, Texas’s GOP attorney general, Ken Paxton, convinced a Trump-appointed judge to issue an opinion claiming that this federal abortion protection does not exist.)
But in practice, the new lawsuit claims, Texas physicians are often too terrified to perform likely legal abortions because the consequences of performing an abortion that the courts later deem to be illegal are catastrophic. The maximum penalty for performing an illegal abortion in Texas is life in prison.
This lawsuit, known as Zurawski v. Texas, asks the state courts to clarify when medically necessary abortions are legal within the state so that doctors can know when they can treat their patients without risking a prison sentence or a lawsuit.
Represented by lawyers from private firms and the Center for Reproductive Rights, an abortion-rights litigation powerhouse, the Zurawski plaintiffs ask the courts to clarify that Texas law “permits physicians to provide a pregnant person with abortion care when the physician determines, in their good faith judgment and in consultation with the pregnant person, that the pregnant person has a physical emergent medical condition that poses a risk of death or a risk to their health (including their fertility).”
The suit, in other words, asks the courts to lift a cloud of uncertainty that hangs over Texas doctors, preventing them from treating their patients even when that treatment is legal.
The Zurawski lawsuit, briefly explained
The plaintiffs in Zurawski are five women who, because they struggled to find abortion care in Texas, say that they suffered harrowing and unnecessary medical crises.
Amanda Zurawski, for example, alleges that she was forced to continue a pregnancy until she developed sepsis, a life-threatening medical condition, even though her doctors determined days earlier that her fetus would not survive. At one point, Zurawski’s family flew to Austin to be by her side because they were unsure if she would survive.
Though she eventually received an abortion, Zurawski developed severe scar tissue on her uterus and fallopian tubes. One of her fallopian tubes is now permanently closed.
Another plaintiff, Anna Zargarian, says she was forced to fly to Colorado to obtain an abortion after her water broke prematurely and her doctors told her the fetus could not survive. A third plaintiff, Lauren Hall, alleges she had to fly to Seattle to see a specialist, at great cost to her family, after she learned that her fetus had not developed a skull and would not survive. Her doctors told her that, if she did not terminate the pregnancy, she was at risk for many medical conditions, including hemorrhage.
These plaintiffs argue in their complaint that one reason why Texas doctors are unwilling to perform abortions, even when delaying an abortion risks a patient’s life, is that Texas law is a hodgepodge of multiple abortion bans, each with inconsistent provisions permitting abortions when a patient’s life or health is in danger, and none of which use medical terminology that doctors can rely upon to know exactly what they are and are not permitted to do.
Texas’s primary criminal ban on abortions, for example, provides that abortions are permitted when “in the exercise of reasonable medical judgment” a physician determines that their patient “has a life-threatening physical condition” or faces a “serious risk of substantial impairment of a major bodily function” that relates to their pregnancy.
Meanwhile, a separate statute, enacted before Roe v. Wade was decided in 1973, also bans abortions. And it does so with a much narrower exception for abortions performed “for the purpose of saving the life of the mother.” But it’s unclear whether, now that the Supreme Court has overturned Roe, this law remains in effect or not. While a federal appeals court determined in 2004 that this pre-Roe ban on abortions was “repealed by implication,” Attorney General Paxton claimed that the law is still enforceable after Roe was overruled.
And then there’s SB 8, the state’s bounty hunter law, which permits private citizens to sue doctors who perform abortions after the sixth week of pregnancy. That statute uses completely different language to describe when an abortion is allowed, permitting abortions “if a physician believes a medical emergency exists that prevents compliance” with SB 8.
Most of these statutes, moreover, were enacted when Roe was still good law. So there are few, if any, court decisions interpreting them, explaining how the multiple conflicting exceptions to the multiple different abortion bans interact with each other, or resolving disputes about which laws are actually in effect.
Typically, lawyers rely on past court decisions to predict how courts are likely to apply a statute to their clients. But, without many (or any) such decisions to rely upon, lawyers advising doctors and hospitals cannot provide reliable advice to those clients. And, again, if a doctor and their attorneys guess wrong about whether a particular abortion is legal, that doctor could wind up spending the rest of their life behind bars.
So how likely is this lawsuit to clarify the law?
There’s one other reason why there’s little case law so far explaining when doctors may perform medically necessary abortions: Absolute bans on such abortions are extremely unpopular. A 2022 poll by the Pew Research Center, for example, found that 73 percent of American adults, and 62 percent of Republicans, believe that abortions should be legal under these circumstances.
Only 11 percent of adults, and just 16 percent of Republicans, said definitively that abortions should be illegal when needed to protect a patient’s life or health.
Even Greg Abbott, the state’s Republican governor, has said that “something that really does need to be done” is clarifying “what it means to protect the life of the mother.” He also worried about “some actions by some doctors that are not taking care of women who have an ectopic pregnancy or who have a miscarriage.”
QUESTION TO GOV. @GregAbbott_TX: If the GOP-controlled legislature approved an exception for rape or incest to the state’s #abortion law, would you sign it into law?
Gov. Abbott & @BetoORourke on Inside Texas Politics this morning. #txlege pic.twitter.com/hhLHLxwJEe
— Jason Whitely (@JasonWhitely) October 16, 2022
The fact that even many leading Republicans oppose bans on abortions when a patient’s life or health is at stake may seem like good news for those patients. But it also contributes to the void of case law explaining when such abortions are permitted.
That’s because a prosecutor, confronted with a case involving a doctor who performed an abortion on a woman like Amanda Zurawski, is likely to conclude that this abortion was legal and choose not to prosecute. But if no such prosecutions occur, then no court will ever hear a case that will allow it to definitively establish that such an abortion is, in fact, legal.
It’s a Catch-22. The sorts of abortions that are most widely viewed as legally and morally justified are also the sorts of abortions that are least likely to result in litigation.
That said, the fact that politicians like Abbott, who is himself a former Texas Supreme Court justice, believe that the health and life exceptions to Texas’s abortion bans need to be clarified is a hopeful sign for the Zurawski plaintiffs. It suggests that even Texas’s current slate of justices, all of whom are Republicans, may agree that someone with a life-threatening medical condition shouldn’t have to wait until they go into sepsis before they can receive medical care.
What’s less clear is whether the Texas courts will provide clarity that helps patients with less drastic cases to obtain abortions. Recall that the Zurawski plaintiffs seek a legal rule allowing doctors to perform abortions when “in their good faith judgment and in consultation with the pregnant person” they determine that their patient has an emergency medical condition that endangers the patient’s life or health.
Texas’s lawyers have not yet proposed an alternative standard, but the Texas legal team will be led by the virulently anti-abortion Attorney General Paxton. So, even if Paxton’s office doesn’t oppose this effort to clarify Texas law altogether, it is likely to propose a rule that will be much less friendly to doctors and their patients.
We have miles to go, in other words, until Texas physicians will know when they can safely treat their patients. And it is likely that similar legal fights will need to play out in every state with strict abortion laws.