Doctors should use ‘good faith judgment’ to determine when their pregnant patients need an abortion, said one Texas judge. The state of Texas disagrees.
The Texas Supreme Court heard arguments on Tuesday in a case which seeks to clarify the scope of Texas’ “medical emergency” exception under its state abortion bans. Represented by the Center for Reproductive Rights (CRR), the plaintiffs—20 Texas women denied abortions, joined by two doctors—allege they were denied abortion care in Texas for their medically complex pregnancies, including cases where the fetus was not expected to survive after birth.
The high-stakes and emotional case, filed in March, paints a picture of fear and confusion among pregnant people and doctors throughout the state. During an initial two–day hearing in July, women denied abortions shared harrowing stories of the severe physical harms and trauma they experienced during their pregnancies, which they say were directly caused by Texas’ anti-abortion laws.
In response, Judge Jessica Mangrum, presiding judge of the 200th District Court in Austin, issued a temporary ruling on Aug. 4, only meant to stand until Zurawski v. Texas goes to trial on March 25, 2024. This August ruling made two important points:
- 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.
- Mangrum clarified the “medical emergencies” exception in the state’s abortion bans, granting a temporary injunction against the law. This meant that the attorney general and other state actors were temporarily forbidden from enforcing the law against abortion providers—who Mangrum encouraged to use their “good faith judgment,” in consultation with their pregnant patients, to determine when they need an abortion to preserve their health or their life. (This point in particular is what the Texas Supreme Court was tasked on Tuesday to weigh in on.)
If it had been allowed to take effect, Mangrum’s latter ruling would have protected abortion providers from steep state penalties (like exorbitant fines, felony charges, life in prison and the loss of their medical license) in a wider range of cases—including pregnancies that present a risk of infection; a fetal condition in which the fetus will not survive after birth; or when the pregnant person has a condition that requires regular, invasive treatment.
These specific new carve-outs to the law would have provided relief to Texas women who face pregnancies that are not directly threatening to their lives but were nonviable, or that could become life-threatening quickly, like those who shared their stories in court—such as Amanda Zurawski, who had to become septic before her doctors felt legally justified to perform an emergency induction abortion; or Samantha Casiano, whose baby was born without a skull and died of suffocation four hours after birth.
But the state of Texas immediately appealed the ruling to the Texas Supreme Court. According to state law, as soon as an appeal is filed, a ruling is stayed—which is why the case found itself in front of the state’s highest court on Tuesday, Nov. 28.
Beth Klusmann of the Office of the Attorney General argued there is nothing wrong with the law as it stands; that the 22 plaintiffs bringing the lawsuit did not have standing to do so; and that Mangrum “overstepped” in her ruling. She argued the pregnant women should have sued their doctors, rather than the state, because their cases would have been allowed under the law—but she was not willing to give the doctors any assurance about which of the 20-plus cases would qualify, and how.
The plaintiffs were represented by Molly Duane of CRR. She argued that with Mangrum’s clarification tied up in court, confusion and fear abound: Doctors’ hands are still tied, and Texas women and their families pay the price. She argued that laws like the Texas Human Life Protection Act use vague, non-medical language that gives doctors no assurance as to what cases qualify as medical emergencies, or how dire the emergency must be.
The Texas Supreme Court is made up of nine justices, all of whom are part of the Republican party. Even still, some justices seemed skeptical of the state’s arguments.
- Justice Debra Lehrmann told Klusmann that in current Texas law, it’s hard to determine what a “medical emergency” means. Using a “reasonable medical judgement” standard, as the state prefers (rather than “good faith,” as put forward by CRR and Judge Jessica Mangrum), “puts medical professionals in a really bad situation,” said Lehrmann. “There’s a possibility of them ending up in jail.”
- Justice Rebecca Huddle asked if acrania—when a fetus develops without a skull, which, as she pointed out, is “100 percent fatal” to the child—would be an acceptable reason for abortion, according to the state. Klusmann said no, since it would not be considered “life-threatening” for the mother, and emphasized the state constitution contains “no right to abort a child because it will not have ‘sustained life’ outside of the womb.” (Several of the Zurawski v. Texas plaintiffs had experiences with fetal acrania, including Casiano, who was forced to carry her nonviable pregnancy to term. “For four hours, I had to watch my baby suffer,” she testified. “I kept telling myself and my baby, ‘I’m so sorry this happened to you.’ There was no mercy there for her.”)
- Justice Jeff Boyd asked Klusmann to “assume there is a need for clarity” in current law, and “the court has a role to play to construe statues.” In response to the state’s arguments that these plaintiffs lack standing, he asked, “If these plaintiffs lack standing … under what circumstances could courts ever provide the clarity the plaintiffs are arguing is needed here?” After she answered, Boyd said he was still “struggling to understand [the state’s] standing argument, that these women don’t have standing to bring these claims.”
A ruling from the state Supreme Court is expected in the coming weeks or months.
In the meantime, Duane had a message for Texas women: “My phone number and my email address are readily available online. Patients should call me—because the Center for Reproductive Rights stands ready to help anyone in a situation where their life is on the line and they’re not getting the care they need.”
When the case was first filed in March of 2023, it named five Texas women who faced grave and lasting consequences as a result of having been denied abortions. Today, that number is 20—and counting.
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