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First-of-its-kind abortion lawsuit hearing ends with pleas for relief from strict Texas rules

Medical experts testified Thursday that Texas' abortion bans have greatly hindered physicians' ability to provide effective care to pregnant people in the state.  

AUSTIN, Texas (CN) — A hearing to consider the Center for Reproductive Rights' petition for a temporary injunction against Texas' restrictive abortion bans ended Thursday afternoon following a full day of expert testimony. 

The lawsuit was brought by the center in March on behalf of 13 women who were denied abortions, despite having pregnancy complications, and two obstetricians. Together, they seek to block the state from prosecuting physicians who perform abortions on patients with pregnancy complications that threaten their health and safety. 

In their petition for a temporary injunction, the center is asking Travis County District Court Judge Jessica Mangrum to allow doctors to provide such care to prevent other pregnant people from being forced to carry a complicated pregnancy to term or from having to seek abortion care outside of the state. Making their request, attorneys for the state have requested Mangrum dismiss the case on the assertion that the plaintiffs lack standing and have not waived the governmental immunity of the state.  

The temporary injunction hearing began Wednesday with emotional testimony from three patients and one physician named in the suit. Where much of the testimony heard on Wednesday focused on how the women who were denied abortions suffered, Thursday’s proceedings focused heavily on the position medical providers have been placed in. 

First to testify was Aaron Caughey, an obstetrician and researcher at Oregon Health and Science University. 

Both of Texas’ abortion bans provide exceptions in the event an abortion is needed to save the life of the mother. However, during his expert testimony, Caughey said the abortion bans employ vague and confusing language that hinders doctors from applying a reasonable standard of care to patients.

“Terms like ‘life-threatening physical condition placing the female at risk of death’ or ‘poses a serious risk of substantial impairment of a major bodily function’ … are confusing,” said Caughey over a video call. “I think that's what makes this medical exception so challenging to interpret and why physicians are choosing to essentially wait until the last second because they don't know what they're allowed to do.”

Ali Raja, a physician and executive vice chair in the Department of Emergency Medicine at Massachusetts General Hospital in Boston, echoed Caughey’s testimony. He said that the laws in Texas are actively confusing doctors and clouding their ability to provide the appropriate care.

“Lack of clarity is keeping physicians from being able to exercise their good faith, clinical judgment in the treatment of patients,” said Raja from the stand. “It also is pretty evident that the fact that the consequences of those laws are severe … and as a consequence, they are going to end up where [doctors] are going to err on the side of not [offering] treatment.”

A physician found to have provided abortion in Texas faces up to 99 years in prison, the revocation of their medical license and paying a fine over $100,000. Additionally, any person who provided or helped provide an abortion may be sued under a civil statute by private citizens for a minimum of $10,000. 

The state’s attorneys largely sought to discredit the testimony of Caughey and Raja, arguing that because neither physician actively practiced medicine in Texas, they could not be considered an expert on the subjects. Assistant Attorney General Johnathan Stone even at one point asked Caughey to provide the names of doctors in Texas he spoke to about the state’s abortion restrictions. When Caughey refused, Stone then moved to strike his testimony.  

Calling its first and only expert witness, the state introduced Ingrid Skop, an obstetrician who practices in San Antonio. In addition to her work as a physician, Skop is a vice president at the Charlotte Lozier Institute, an anti-abortion think tank.

Skop said that doctors failing to understand the state’s abortion restrictions is to blame for the treatment endured by the patient plaintiffs.

“It is not the law's fault," said Skop. "The law is quite clear. The fault lies with the physicians not being given guidance by the organizations that usually will guide them, the medical societies and the hospital societies.”

In place of the current language present in the state's abortion bans, the Center for Reproductive Rights has asked the court to adopt new language for physicians to adhere to as a part of its injunction petition. Such a new standard, if adopted, would make abortion legal so long as it was to address a complicated pregnancy that was unsafe for the patient to continue with, a condition made worse by the pregnancy that cannot be effectively treated while with child or a fetal condition where the fetus is not likely to survive after birth.

When asked by Assistant Attorney General Johnathan Stone if the language offered by the plaintiffs in their petition would cure the confusion among doctors, Skop said that the new language could lead to abuse.

“This is very subjective, it would not make [the law] any clearer for the doctors who are really trying to do the best they can for patients, but it would allow physicians who, for perhaps non-medical reasons, wanted to do abortions to justify their actions,” said Skop.

In her closing arguments, Molly Duane, lead attorney for the plaintiffs and senior staff attorney at the Center for Reproductive Rights, urged Judge Mangrum to grant the relief they seek and restore the medical rights she argues are being chilled. 

“The construction of a medical assessment that allows physicians and their good faith judgment in consultation with patients to determine when pregnancy poses a risk to the patient's health, and life,” said Duane. “Such a construction would give physicians discretion to practice medicine and intervene when they believe in their reasonable medical judgment that a patient needs an abortion.”

Stone pleaded for the case to be dismissed, arguing that none of them are actively being harmed by the state.

“None of these … patients can show that they would suffer imminent irreparable harm, unless this court were to enjoin the state's enforcement of the medical exemption, because none of them are certainly likely to become pregnant again, much less become pregnant again and experience complications that would often be subject to medical exemption and experience a physician who was so unsure or uncertain or confused about the law that he would cause injury,” said Stone.

In closing, Judge Mangrum said that it will likely take several weeks before a decision is released.

The case is regarded as the first of its kind. The 15 plaintiffs are the first in Texas, as well as the country, to challenge a state's abortion restrictions after the United States Supreme Court ended the federal right to abortion last summer in Dobbs v. Jackson Women's Health Organization.

Texas is just one of 14 states that have outlawed the procedure. During a press conference outside the courthouse, Marc Hearron with the Center for Reproductive Rights said that more lawsuits similar to the one in Texas are expected to be filed.

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