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Wednesday, July 3, 2024 | Back issues
Courthouse News Service Courthouse News Service

Texas Supreme Court rejects call to clarify exceptions to state abortion bans

Siding with the state, the high court found that the laws sufficiently outline when an abortion to save the life of the mother is permitted.

AUSTIN, Texas (CN) — In a highly anticipated opinion, the Texas Supreme Court on Friday held that the state’s total abortion ban does allow the procedure to be performed if the pregnancy poses a risk of serious bodily impairment or death. 

“Texas law permits a life-saving abortion,” wrote Justice Jane Bland in her 38-page majority opinion. “Under the Human Life Protection Act, a physician may perform an abortion if, exercising reasonable medical judgment, the physician determines that a woman has a life-threatening physical condition that places her at risk of death or serious physical impairment unless an abortion is performed.”

With its unanimous opinion, the all-Republican high court vacated a lower court injunction blocking the state from enforcing the ban against doctors providing life-saving abortions and installing a new standard for physicians to follow. The state had filed an accelerated appeal to the Texas Supreme Court staying the injunction.

The lawsuit central to this case began over a year ago when five women who had experienced life-threatening pregnancy complications and two doctors, represented by the Center for Reproductive Rights, sued Texas Attorney General Ken Paxton and the Texas Medical Board, seeking clarity. As news spread about their lawsuit, an additional 15 women who had similar experiences joined. Together, the plaintiffs claimed that the laws as written deprived them of their right to equal protection under the state constitution.

The three laws being challenged in the lawsuit include the Human Life Protection Act, the Texas Heartbeat Act and a 1925 abortion ban that was revived following the U.S. Supreme Court’s reversal of Roe v. Wade in 2022.

The Human Life Protection Act and the 1925 ban create both civil and criminal penalties for anyone found to have provided an abortion. Doctors face up to 99 years in prison, a minimum fine of $100,000 and the loss of their medical license if found guilty. The Texas Heartbeat Act, also known as Senate Bill 8, imposes a civil private right of action, allowing any citizen to sue anyone they believe performed or helped facilitate an abortion for a minimum of $10,000. 

Senior staff attorney for the Center for Reproductive Rights and lead attorney in the case, Molly Duane, said in a call with reporters that the court’s ruling provided a “feeble answer” to the question of when a person in Texas can receive an abortion under the medical exception. However, the court’s decision still falls far short of what she believes is needed to keep pregnant people safe.

“I am disturbed that the court rejected so many of our clients' claims to a constitutional right to life, health and fertility,” Duane said Friday. “These are women who came to court citing risks to their physical and mental health and continuing a pregnancy. A pregnancy that would never result in a new baby joining their families. But now we know the courthouse doors are closed to them.”

The Center for Reproductive Rights argued that the exception coded into all of the states three laws banning abortion suffer from being vague, leading to doctors opting not to offer care out of fears of prosecution. To resolve this, the group asked the courts to create a standard allowing the procedure when a doctor has a "good faith belief" that abortion is needed to save the life of the mother or prevent severe bodily impairment.

Bland pushed back on the Center for Reproductive Rights' request to clarify what “reasonable medical judgment” means under the statute. The Center argued that a good faith belief standard would create uniformity among doctors' standard of care, whereas one's medical judgment could vary from physician to physician.


While not all doctors would come to the same conclusion, for the matter of enforcement, the state must show that a reasonable physician would not have found that a woman with pregnancy complications required a life-saving abortion.

“The Center’s ask is for a court to substitute a different standard for the one that is expressly written in the statute,” Bland wrote in Friday's opinion. “This is a call for amending the law, not for interpreting it.” 

The 20 women who were at the center of the case from the very beginning were not directly mentioned in Bland's opinion. Rather, the court made an effort to detail why it believes the exception to the laws as written is sufficient.

There was one instance in which the justice pointedly addressed lead plaintiff Amanda Zuarwski's experience and used it as an example to show how the law should function.

During her second trimester, Zurawski’s pregnancy became no longer viable when the membrane surrounding her daughter, Willow, prematurely ruptured. Despite being told by doctors that she faced a serious risk of infection, they refused to terminate the pregnancy because Willow still had a heartbeat and there was fear of being prosecuted. After being sent home, infection later set in causing damage to Zurawski’s reproductive organs and placing her life in jeopardy.   

“Ms. Zurawski’s agonizing wait to be ill 'enough' for induction, her development of sepsis, and her permanent physical injury are not the results the law commands,” wrote Bland.

Zuarwski said Friday that the ruling felt like a gut punch.

“The Texas Supreme Court had the opportunity to provide clarity, but they didn't, and we are right back where we started. While this feels like the end of Zurawski v. Texas, it is not the last that you will be hearing from us in this fight for justice,” she said.  

All but one of the plaintiffs' claims survived the court's ruling. Damla Karsan, an obstetrician from Houston, was found to have standing to sue the state because she was threatened with enforcement by Paxton.  

The threat came after a judge in Austin issued an order allowing Kate Cox, a mother of two from Dallas to terminate her nonviable pregnancy. Karsan was set to provide the procedure when Paxton sent letters to three hospitals, saying they could be held liable if Karsan was allowed to give an abortion at their facilities. The Center for Reproductive Rights said that it is still determining how it will proceed with this final claim.

While the court has opted not to give any guidance on the state’s laws, it did leave open the opportunity for the Texas Medical Board to step in. The board is currently in the process of weighing new guidance for physicians that would make clear when a patient qualifies for the exception. However, it has sparked controversy in its proposed plans, with abortion rights advocates saying that it does not do enough to protect women. 

Paxton said in a statement praising the ruling that he will continue to defend the state's pro-life laws.

“Today, the Supreme Court of Texas unanimously upheld the Human Life Protection Act, one of our state’s pro-life laws,” Paxton said. “I will continue to defend the laws enacted by the Legislature and uphold the values of the people of Texas by doing everything in my power to protect mothers and babies.”

For abortion rights advocates, the only viable answer to remedy what they see as laws that make it dangerous to be pregnant in states like Texas is federal action. During Friday’s press call, Nancy Northup, the Center for Reproductive Rights president and CEO, renewed calls for a law legalizing abortion nationwide.

“It is clear that the state of Texas and many other states are not going to protect their own pregnant people,” said Northup. “The federal government must step in and reestablish a nationwide right to abortion.” 

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Categories / Civil Rights, Government, Health, Law

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