‘They have no options’: Texas court dims hope of timely abortion care for high-risk patients
After four rounds of in vitro fertilization, Kristen Anaya and her husband were elated to discover Anaya was finally pregnant – with a baby girl – last April. The 42-year-old Dallas-area woman called IVF a “long and emotional journey”. Despite the cost and struggle, the process was well worth it for Anaya, who wanted to grow her family.
However, the good news would give way to an unexpectedly grueling and traumatic pregnancy that forced her to suffer for days before receiving care, due to Texas’s severe abortion bans.
At nearly 17 weeks pregnant, Anaya began experiencing heavy cramping and soon felt her water break. She was rushed to the hospital, where she continued to lose amniotic fluid. She developed a high fever and began shaking so uncontrollably that nurses had difficulty placing an IV. Anaya was in the early stages of sepsis, a potentially life-threatening condition.
Related: US state abortion ban exemptions aren’t vague by accident. Uncertainty is the point | Judith Levine
Her OB-GYN explained that nothing could be done to save her daughter, whom Anaya had already named Tylee. Adding to Anaya’s shock, the physician informed her that to stop the infection she needed immediate abortion care, but because of Texas laws, she would have to “keep getting sicker” until the doctor could “prove” to the hospital that her life was on the line.
“I went from absolute terror, to sadness, to confusion all within minutes,” Anaya said. “I just learned that my child was not going to be born alive, and now the doctor is telling me I would have to put my life at risk before getting help. I went into complete shock. It was unbearable to process.”
Anaya later joined a lawsuit asking the state to clarify when women in situations like hers can receive live-saving abortions, but last week, the Texas supreme court rejected the suit. The all-Republican court unanimously agreed the law is clear as-is.
Anaya’s story underscores the immense struggle Texas patients with high-risk pregnancies – who have lived under strict abortion bans longer than other US residents – have faced for more than two years. Without clear medical exemptions, the laws have tied the hands of doctors and hospitals who deeply fear the punitive consequences, placing patient care in jeopardy.
But it’s not just high-risk patients bearing the brunt of Texas abortion policies. Over the last decade, Texas has been a national leader in enacting onerous abortion restrictions, passing the most extreme abortion ban in the US well before the fall of Roe.
State leaders, who have edged even closer to the far right in recent years, don’t appear to be slowing down. The Texas Republican party is considering a proposal that would threaten doctors who violate the law with the death penalty. Lawmakers have also shown interest in targeting out-of-state travel for abortion care, a movement that has already gained traction in Texas.
“What happens with abortion policy in Texas doesn’t stay in Texas,” writes Jessica Mason Pieklo with the reproductive rights outlet Rewire. “In fact, it informs abortion policy nationwide.”
Nancy Northup, president of the Center for Reproductive Rights (CRR), which brought the lawsuit, called the ruling “deeply offensive” to the women they represent. During an emotional press call, several plaintiffs expressed feeling “ignored” and re-traumatized by the ruling, and said they were “terrified” for women in Texas.
“We all deserve bodily autonomy. Every day, people in Texas are being told that they have no options,” said Amanda Zurawski, the cases’s lead plaintiff, who nearly died after pregnancy complications.
‘An incredibly tough situation to put doctors in’
Apart from the devastating effect that Texas’s ban has had on women needing abortions, the toll on doctors has been significant.
Since Texas’s near-total abortion ban took effect in 2021, the year before Roe v Wade was overturned, reports began emerging of doctors denying or delaying abortion care in high-risk or emergency situations, in some cases pushing some patients to “death’s door” before intervening. After Roe was overturned, another abortion ban went into effect, threatening already wary doctors with the loss of their medical license, $100,000 in fines, and up to life in prison for violating the law.
While Texas abortion law carves out exceptions for “risk of death or a substantial impairment of a major bodily function”, Anaya and plaintiffs say those exemptions are ambiguous, causing physicians to refuse care rather than risk harsh criminal and civil punishment. Over a two-day trial in July, Texas women recounted stories of being denied abortion care despite life-threatening pregnancy complications, including hemorrhaging and sepsis. Kate Cox, a Texas woman denied an emergency abortion for her non-viable pregnancy whose separate case attracted national attention, only reinforced the need for clarity.
Related: Texas woman files emergency lawsuit to terminate her non-viable pregnancy
While the Texas court’s ruling offers some subtle clarifications, including raising the burden on state prosecutors wishing to criminally enforce the ban on doctors and allowing abortions in cases of premature rupture of membranes, the decision overall largely maintains the “status quo”, Liz Sepper, a University of Texas at Austin law school professor who focuses on reproductive healthcare law, said.
“The bottom line is that the Texas supreme court ruling basically puts us in the same situation today as we were yesterday, leaving pregnant patients at risk in emergency situations – and now without hope that there will be meaningful change through the courts,” said Sepper.
In addition to fearing severe criminal penalties from Texas abortion law, doctors and hospitals also lack the safety net of federal protections. Since 2022, Texas officials have successfully fought against the Biden administration’s guidance that the Emergency Medical Treatment and Labor Act (Emtala), which requires hospitals to provide medically necessary care to stabilize patients, includes emergency abortions. Texas argues that hospitals are not immune from penalties if they perform abortions as part of stabilizing treatment. A ruling on whether Emtala supersedes state abortion law is expected this month from the US supreme court.
Dr John Thoppil, an Austin-based OB-GYN and board member of the Texas Association of Obstetricians and Gynecologists, says the Texas court failed to help doctors navigate the stringent law and they remain fearful for both their patients and their own livelihoods.
“I think a lot of us [physicians] feel dejected,” Thoppil said. “For months, we were hoping for more clarity from the state, but we didn’t get it. Instead, we are being forced to continue to carry this huge burden of balancing our job to care for patients with complications against the threat of prosecution and life in jail – it’s an incredibly tough situation to put doctors in.”
‘Women are suffering’
With no choice but to wait for her health to deteriorate, Anaya’s doctor was forced to “build a case” that her life was in danger to persuade the hospital’s termination committee to approve her abortion. Every three hours, Anaya underwent tests. Her doctor presented her white blood count and lactic acid levels, and her fetus’s heartbeat, to hospital administration, who said she was not yet sick enough. Anaya recalls her doctor practically “begging” the hospital to act. Meanwhile, her fever steadily rose – she was freezing, shaking intensely and constantly vomiting.
“I was stuck in this horrific limbo, just waiting to get worse and worse,” said Anaya. “I can’t even describe the amount of anxiety I felt. It was a living nightmare.”
After nearly 24 painful hours, Anaya’s blood tests reached such dangerous levels that hospital administration finally approved the procedure. Due to her septic infection, Anaya battled for her health in the hospital for five more days, undergoing two blood transfusions. Eventually, she was released and said she spent the next few weeks “crying on the couch” with grief.
During court proceedings, Texas attorneys argued that the onus is on the individual doctor to determine whether a high-risk patient qualifies for abortion, not on the law itself. But Anaya doesn’t place blame on the medical staff who treated her. She has sympathy for doctors, who she says “clearly have their hands tied” by Texas abortion laws.
“The doctors and nurses looked so helpless and defeated. There was so much sadness in the room – we both understood they were trying their best and wanted to help, but couldn’t,” said Anaya. “I’m not angry at them – I’m angry at the laws created by the state.”
Marc Hearron, an attorney with CRR says that “all eyes should be on the Texas medical board”, the state agency that regulates medical practice in Texas.
In January, the TMB finally took action after a pair of Austin attorneys filed a petition pushing the agency to consider issuing guidance on the law’s exceptions. However, the TMB’s proposal has disappointed reproductive rights advocates, including plaintiffs in the Zurawski case, who hoped the board would offer a specific list of conditions covered by the law. In fact, many of the doctors, lawyers and experts who testified during the board’s May meeting worried that the new rules would actually create more obstacles to patient care, as they would force additional reporting requirements on physicians. The rule-making process is ongoing and probably will not be finalized before the end of June.
In the meantime, patients like Anaya will continue to suffer the harrowing consequences of the state’s abortion law.
“I can’t stress how important it is that we have clear exceptions to the law,” said Anaya. “We need to empower doctors to feel confident in treating patients like me, who could have died, before it’s too late. We need them to not feel afraid to help. Women are suffering and they are going to keep suffering.”
