Texas Judge Rules in Favor of Doctors and Women Who Testified to the Grave Harm of Abortion Bans

Plaintiffs Damla Karsan, Austin Dennard and Samantha Casiano outside the Travis County Courthouse in Austin on July 20, 2023. (Suzanne Cordeiro / AFP via Getty Images)

When Austin Dennard saw the ultrasound at her 11-week appointment, she “immediately realized there was something catastrophically wrong,” she said. Her sense was correct: Her fetus was eventually diagnosed with anencephaly, meaning it was developing without part of the brain and skull. As an ob-gyn herself, Dennard was horrified, picturing her would-be child’s quality of life: “They basically just gasp for air until they pass away.” 

“I had been hoping and praying for another baby, and envisioning having a third,” Dennard said through tears. “The mother in me was hoping the physician in me was second-guessing what I saw. But I knew that this was not going to be a brother or a sister for my children.” 

She also knew that “each day I remained pregnant my physical life was more at risk.” In addition to being “incompatible with life for the fetus,” anencephaly “poses a significant amount of threat to the patient that’s carrying the pregnancy,” Dennard said. She began to list the lethal anomaly’s risks to the life of mother—uterine distension, hemorrhage, sepsis—then trailed off: “The list is endless, actually.”

Knowing she would not qualify under the exceptions of Texas’ abortion bans, since the risks were not immediate, Dennard traveled out of state to get abortion care so that she would not be forced to carry a nonviable pregnancy to term. 

Dennard told this story to a packed courtroom on Thursday, the second and final day of testimony in Zurawski v. State of Texas, a lawsuit filed against the state of Texas by the Center for Reproductive Rights (CRR). 

The lawsuit seeks to block both of Texas’ abortion bans—Senate Bill 8, which bans abortion after cardiac activity is detected, roughly around six weeks of pregnancy; and Texas’ Human Life Protection Act, colloquially known as the trigger ban, a total abortion ban which took effect shortly after the fall of Roe. This suit in particular asks for a temporary injunction on an emergency basis, which would remain in place until the case goes to trial and a judge makes a final ruling on a permanent injunction. (In other words, CRR is asking the court to intervene to block the law for now, until it can decide whether to block it for good.)

The plaintiffs also ask the court to clarify for doctors which circumstances qualify as exceptions to the bans, and to allow providers to use their own medical judgment without fear of prosecution. These limited exceptions have caused confusion and sewn fear among healthcare providers, who face extreme penalties for violating Texas’ anti-abortion laws, including life in prison, loss of medical license and penalties of $100,000 or more.

The historic case is the first time women have directly sued a state over abortion access since the Supreme Court overturned the constitutional right to abortion. 

Joining this lawsuit has been a wonderfully productive way to make change for the women in Texas so that we can help each other regain the rights we deserve for our bodies.

Dr. Austin Dennard

Dr. Austin Dennard, an ob-gyn who had to travel out of state to receive abortion care for a nonviable pregnancy, arrives at the Travis County Courthouse on July 20, 2023, in Austin. (Suzanne Cordeiro / AFP via Getty Images)

In addition to Dennard, Thursday’s hearing featured testimony from ob-gyns and other healthcare providers, who outlined the harms they’ve observed as a result of extreme abortion bans, including the two currently in effect in Texas. The doctors also spoke of the lack of clarity in the way the laws are written, “making it hard to determine when physicians can act according to their clinical judgment,” said Ali Raja, executive vice chair of the Department of Emergency Medicine at Massachusetts General Hospital and a professor at Harvard Medical School.

This confusion results in delayed or altogether refused care, and increased risk of maternal death or severe illness or harm. 

Dennard, a practicing ob-gyn and a co-plaintiff on the CRR lawsuit, said she did not even bother asking any of her colleagues if they would perform an abortion on her. “I was not critically ill,” she said. “I was not hemorrhaging. I was not septic. I was pregnant with a lethal anomaly.”

The other plaintiffs were outright denied abortions in the state of Texas. Their testimony on Wednesday provided life-threatening examples of what happens when patients are delayed and refused reproductive care. 

  • Like Dennard, fellow co-plaintiff Samantha Casiano also received an anencephaly diagnosis during a routine ultrasound. She sought help from her obstetrician, who simply prescribed her an antidepressant and told her she had no other options because, as Casiano recounted, “the Texas abortion law prohibited it.” Unlike Dennard, Casiano was unable to travel out of state due to obstacles she would face traveling, including financial constraints and potential legal complications. Her daughter Halo died four hours after birth.
  • Even though Amanda Zurawski’s doctor told her a miscarriage was inevitable, she said she could not intervene because of the trigger ban, which took effect that week. Only when she was septic and close to death, was she provided an abortion and forced to deliver a fetus that had died in utero. As a result of her sepsis, Zurawski will suffer lasting effects to her fertility, including dense scarring, the permanent closure of one of her fallopian tubes and a collapsed uterus.
  • At Ashley Brandt’s 13-week ultrasound, she was informed one of her twins had developed without a skull—a condition called acrania, which is considered incompatible with life. Selective fetal reduction is the standard of care in this case to preserve the life of the remaining fetus, but doctors in Texas refused to provide the procedure to Brandt due to fear of prosecution. She and her husband decided to travel by plane to Colorado, a state without an abortion ban, to have the procedure performed. If she had not left the state, Brandt said she would have been “forced to give birth to an identical version of my daughter without a skull and without a brain and hold her until she died. … Instead I got to give birth to my healthy daughter. Instead of crying tears of heartbreak, I was crying tears of relief.”
Samantha Casiano outside the Travis County Courthouse on July 19, 2023, in Austin, Texas. (Suzanne Cordeiro / AFP via Getty Images)

New data released by CNN on Thursday suggests abortion bans like Texas’ also increase infant mortality: Approximately 2,200 infants died in Texas in 2022—an increase of 11.5 percent compared to the previous year. 

Casiano said she would have opted for abortion, so her daughter would not have suffered for the four short hours she was alive, gasping for breath. “If I was able to get the abortion … I think it would have meant a lot to me because my daughter wouldn’t have suffered,” Casiano told CNN.

As part of Thursday’s hearing, doctors also spoke of the lack of scientific and medically accurate language in the law—such as phrases like “the death of an unborn child.”

In her closing arguments, Molly Duane, senior attorney for CRR, asked the court, “What possible interest could the state have in forcing a patient to go through [what these women] endured? … Fifteen plaintiffs is far too many.”

Duane also cited the state’s Equal Rights Amendment, which “expressly affirms women’s full status of equal personhood,” she said. (Part of the the state’s Constitution, Texas’ ERA reads: reads: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.”)

The court will now weigh the evidence submitted. The presiding judge, Jessica Mangrum, said her verdict should be rendered “in several weeks.”

Read a recap of the first day’s testimony here.

CBS News has a short segment about the lawsuit, if you’d like to hear some of the testimony:

Update Saturday, Aug. 5, at 6:15 a.m. PT: Late on Friday, Judge Jessica Mangrum ruled in favor of the 15 plaintiffs suing Texas for the state’s abortion bans, who almost died during pregnancy due to grave complications. Mangrum’s ruling granted a temporary injunction to block Texas’ abortion bans, but only as they apply to severe pregnancy complications, including life-threatening fetal diagnoses. The ruling says that doctors can use their own “good faith judgment” to determine when to offer abortion care, without fear of prosecution. 

Mangrum also ruled that Texas’ Senate Bill 8—the six-week abortion ban with the “bounty hunter” provision that allows citizens to sue anyone who aids and abets abortion—is unconstitutional. The ruling is the first blow to the law since it took effect in 2021.

The narrow victory was short-lived, as the state of Texas has already appealed the ruling to the Texas supreme court. According to Texas state law, as soon as an appeal is filed, a ruling is stayed.

Still, the plaintiffs and the Center for Reproductive Rights, who filed the lawsuit, are celebrating the decision. “This is exactly why we did this,” said lead plaintiff Amanda Zurawski. “This is why we put ourselves through the pain and the trauma over and over again to share our experiences and the harms caused by these awful laws.”

Up next:

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Roxanne Szal (or Roxy) is the managing digital editor at Ms. and a producer on the Ms. podcast On the Issues With Michele Goodwin. She is also a mentor editor for The OpEd Project. Before becoming a journalist, she was a Texas public school English teacher. She is based in Austin, Texas. Find her on Twitter @roxyszal.