Texas' high court loses a chance to clarify abortion law and help save lives | Editorial

The Texas Supreme Court had a chance to offer compassion and much-needed clarity on the state's punitive abortion laws

American-Statesman Editorial Board
Austin American-Statesman

It could have been their own daughters. It could have been the mothers of their children. But after listening to the harrowing accounts of 20 Texas women denied abortions despite grave complications, the Texas Supreme Court on May 31 upheld a vague and unsparing abortion law. Its effect, said one woman faced with carrying a fatally ill fetus, was

Zurawski v. Texas, named for lead plaintiff and Austin resident Amanda Zurawski, demanded more clarity on the state’s . In 2022, after the U.S. Supreme Court overturned Roe v. Wade and the constitutional right to abortion, . Guidance on the law’s interpretation and potential enforcement, the 22 plaintiffs said, would confirm for doctors the exceptions that would allow medically needed abortions. As it stands, a doctor who misinterprets the law can face fines of up to $100,000 – or life in prison.

The court rejected this demand. In so doing it upheld a legal status quo that exposed Texas women with complex pregnancies to physical harm. For any hope of relief in these complex cases, Texan families likely will need to wait until the Legislature meets in January 2025.

What remains is a tragic and dangerous chasm. On one side: judges and lawmakers who assure us that Texas’ abortion ban is clearly stated. On the other are families and the physicians, hospitals and attorneys who have excellent reason to fear that even medically necessary abortions could land them in the crosshairs of state prosecution.

The court did grant one of the 22 plaintiffs, Houston obstetrician-gynecologist Dr. , of the abortion ban. But the court also upheld a narrow reading of the ban, stating a pregnant patient’s condition must be “life-threatening” before qualifying for abortion. A risk to the mother’s health is not qualification alone.

The 20 women who lived through the consequences of this ambiguous law showed immense emotional stamina describing its effect on their doctors and themselves. In 2022, Zurawski was overjoyed to be pregnant after a year and a half of fertility treatments. But when at 18 weeks her water broke, her doctor told her that and that she was vulnerable to infection. Under Texas law, the presence of a meant her doctor couldn’t end the pregnancy because she was not in “medical emergency.” After three days, Zurawski’s temperature soared, her blood pressure sank and her body went into life-threatening . Only then could she legally terminate the pregnancy.

No clarification on many conditions

Acknowledging this near-tragedy, legislators in their last session tweaked the state health code. It now gives an affirmative legal defense for doctors who use "reasonable judgment" treating a premature water break, such as Zurawski suffered. But the justices’ recent opinion does not clarify the law on any number of other devastating pregnancy conditions.

Stating that abortion is permitted if a physician deems the woman faces loss of her life or “major bodily function,” the court noted that death does not have to be imminent. But pregnancies are not neatly divided between healthy – or life-threatening. And doctors are right to suspect that their emergency judgment calls may be snared in political attacks.

Dallas-area mother Kate Cox, whose baby was diagnosed with a fatal fetal condition, saw this first-hand. Less than 48 hours after a lower court issued a temporary restraining on the state's ban, authorizing abortion for her, Texas Attorney General Ken Paxton petitioned the state Supreme Court to overturn it. Paxton then wrote to three hospitals warning legal action if Cox’s physician performed an abortion there. Cox left Texas for the procedure. 

Heated conflict on interpreting the law

Yet despite heated conflict in the legal and medical communities about how to interpret the ban, the Texas Supreme Court upheld it as it stands. The court instead placed responsibility for the ban’s effects squarely on doctors, writing “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.”

But doctors are not lawyers. Interpreting the ban already has involved more than a year of consideration from the state Supreme Court, reversal of a lower court’s block for women with dangerous pregnancy complications, and hours of openly contradictory testimony by medical and legal experts before the . What doctor can parse legal issues while treating a patient’s emergency?

Even in the 21st century, amid the immense medical expertise of Texas. The 20 women who described their worst-case experiences are not outliers who reflect small flaws in this vast abortion ban.

 They are part of the natural continuum of human reproduction.

What is unnatural is the Legislature’s fiction that there are only two kinds of pregnancy: healthy or deadly. Human reproduction is a series of nuanced, deeply personal turning points. Deciding how to address these turning points is a right, and sometimes a heartbreak, belonging solely to patients and the doctors entrusted with their care.