On Friday, Texas’ highest court refused to ensure that doctors in the state won’t face prosecution for performing abortions they deem necessary in medically complicated pregnancies. The court rejected a lawsuit filed by 22 patients and physicians.
This decision follows an earlier ruling denying a woman’s request for an emergency abortion of a non-viable pregnancy. Both plaintiffs argued that the medical exception to the state’s near-total abortion ban remains unclear, deterring doctors from performing medically necessary abortions due to severe penalties, including potential life imprisonment.
Texas law permits abortion when a doctor, using “reasonable medical judgment,” determines that the mother has “a life-threatening physical condition that places her at risk of death or serious physical impairment.” Justice Jane Bland, writing for the unanimous court, stated that the state’s constitution does not guarantee any broader right to abortion. Bland noted that the law allows abortion “before death or serious physical impairment are imminent” but provided no further detail about the specific circumstances covered by the exception.
Nancy Northrup, president of the Center for Reproductive Rights representing the plaintiffs, criticized the decision as “deeply offensive to the women we represent.” She argued that exceptions to abortion bans are often illusory and merely empty promises. In response, Texas Attorney General Ken Paxton posted on X, vowing to continue defending the legislature’s laws and upholding the values of Texans by protecting mothers and babies.
Meanwhile, a non-jury trial in Indiana addressing a similar challenge to that state’s medical emergency exception to its abortion ban is expected to conclude on Friday. Several other states have pending cases over the scope of medical exemptions to abortion bans, and the U.S. Supreme Court is considering whether a federal law ensuring emergency care conflicts with Idaho’s abortion ban.
The Texas lawsuit, filed in March 2023 by five women and two doctors, has grown to include 22 plaintiffs. These patients reported pregnancy complications necessitating abortions or the risk of such complications in the future. Some plaintiffs had to travel out of state to terminate their pregnancies. One plaintiff, Amanda Zurawski, faced a life-threatening situation when her water broke at 18 weeks of pregnancy. Denied an abortion until fetal cardiac activity ceased or her condition became life-threatening, she developed sepsis and required intensive care before the hospital could induce labor.
This case was one of the first where pregnant women sued over abortion bans following the U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade, which had established a nationwide right to abortion. In August, the plaintiffs secured an order from a trial court judge shielding doctors from prosecution for abortions deemed necessary in “good faith” under various circumstances, including health risks, exacerbating conditions, or when the fetus is unlikely to survive after birth.
However, Justice Bland wrote that the order conflicted with the law by substituting the “objective” standard of “reasonable medical judgment” with a “subjective” one of “good faith.” She also stated that it improperly expanded the exception to include non-fatal health conditions and the fetus’s likelihood of survival, which the law does not cover. Justices Debra Lehrmann and J. Brett Busby, in concurring opinions, acknowledged that future legal challenges could seek further clarity on the law.
Lehrmann emphasized that the medical community has an “immediate duty to articulate more detailed standards and best practices” regarding the emergency abortion exception. Although the Texas Medical Board proposed new rules interpreting the exception at a public meeting last week, many attendees argued that the rules still lacked the necessary clarity.
