Texas supreme court rejects challenge to abortion ban over medical exceptions

The Texas supreme court on Friday rejected a challenge from more than 20 women who said they were denied medically necessary abortions under the state’s near-total abortion ban, ruling in an unanimous opinion that the state’s ban can stand as is.

Two doctors had also joined the women’s case, which was the first post-Roe v Wade lawsuit to be filed by women who said that their health, lives or fertility had been endangered by abortions bans. Lawsuits filed by women in other states with near-total abortion bans, including Idaho and Tennessee, soon followed.

The case did not seek to overturn Texas’s near-total abortion ban, but to amend it to clarify when medically necessary abortions can be performed.

Although every US abortion ban technically permits abortions in medical emergencies, doctors in Texas and across the country have said that the wording of the bans – penned by politicians rather than medical professionals – is too vague and confusing to be workable in practice. Instead, these doctors say, they have been forced to wait and watch until patients get sick enough to intervene.

In its ruling, the Republican-dominated Texas supreme court disagreed with those doctors. “Texas law permits a life-saving abortion,” wrote Justice Jane Bland, who authored the court’s opinion.

Bland continued: “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 woman who lent her name to the case, Amanda Zurawski, was 18 weeks into a much-wanted pregnancy when her water broke early – a development that doomed her chances of delivering a healthy baby. Although continuing the pregnancy posed significant risks to Zurawski’s health, her doctors said that they could not perform an abortion under Texas law because the fetus still had cardiac activity. Zurawski ended up developing sepsis and spending days in the intensive care unit.

Other women who sued Texas said they were denied abortions even after their pregnancies were diagnosed with a litany of lethal conditions that would leave their fetuses with underdeveloped brains, skulls and other organs. Several fled the state for out-of-state abortions. One woman, Samantha Casiano, stayed in Texas and gave birth to a daughter, Halo, who struggled for air and died hours after birth. When Casiano recounted her experience in testimony last year, she threw up on the stand.

Lauren Miller, another plaintiff in the case, was pregnant with twins when she learned one of the fetuses had severe abnormalities and would probably never make it to birth. Her pregnancy caused Miller to throw up uncontrollably, sending her to the emergency room twice. Despite the risks to her health, her doctors did not suggest an abortion.

Miller ultimately received a fetal reduction, a procedure where doctors abort one fetus, in Colorado. She gave birth to a healthy son.

When she read the Texas court’s opinion on Friday, Miller was shocked by how little she and the other women were mentioned.

“I read it this morning. And then I reread it because I felt like something was missing. It was when I reread it and saw it the second time, I was like: ‘We’re missing. We are erased from our own case,’” Miller said. She said that, after reading the ruling, she gave her young son a hug. “It was just registration, once again, about how little not just my life mattered, but how little his life mattered to the Texas supreme court.”

Last year, a Travis county judge had issued a court order in the case that allowed doctors to perform abortions if they determined through “good faith judgment” that the procedure was necessary.

That order was immediately put on hold due to an appeal by the Texas attorney general’s office. Friday’s order vacates the order completely.

Although the Friday ruling will not legally affect the lawsuits in other states, abortion rights advocates had hoped that a favorable ruling from the Texas state supreme court could help, because the medical exemptions in abortion bans are often written with very similar language.

In light of Friday’s ruling, Miller urged people to vote for candidates who support abortion rights come November. Multiple members of the Texas supreme court are up for re-election this year.

“I’m going to be sad today. I’m going to be bummed. But then we’re gonna have a weekend,” she said. “I’m not done fighting.”