Republicans in the state legislature have already introduced more bills seeking to restrict the availability of the abortion medications mifepristone and misoprostol.
This article was originally published by Courier Texas.
There are no more ways to fight Texas’ abortion bans in the state’s court system—that’s what Austin Kaplan believes after the last few years of doing exactly that.
Kaplan, an Austin-based civil rights attorney, represented Texas mom Kate Cox as she fought to get an emergency abortion when her nonviable fetus threatened her health and future fertility.
The Republican-majority Texas Supreme Court ruled that Cox still didn’t have—in their nonmedical expert opinions—a “life-threatening condition” that put her “at risk of death” or “substantial impairment of a major bodily function.” That decision forced Cox to travel out of state to receive an abortion.
Kaplan has also led a long-standing legal fight against Texas’ bounty-style abortion law, passed in 2021 as SB 8, the Heartbeat Act. Two Texas courts ruled the law “unconstitutional,” but the state Supreme Court has so far upheld it. SB 8 allows anyone in the country to sue anyone in Texas for at least $10,000 for aiding and abetting an abortion—including the pregnant person’s friends, family members and medical providers.
Since the U.S. Supreme Court overturned Roe v. Wade, Texans “no longer have a constitutional right to choice, to reproductive freedom,” Kaplan said. “We have multiple restrictive laws in Texas—and the Texas Legislature just convened on Jan. 14, and they’re going to perhaps make it even more restrictive.”
While some Texas lawmakers (including Republicans who helped write and pass Texas’ strict abortion bans) have said that the law should be changed to protect women’s lives, others have introduced more bills seeking to further restrict the availability of the abortion medications mifepristone and misoprostol—both of which have several medical use cases outside of abortion.
All of this means that if Texans support restoring abortion rights, “the only option is to go to the ballot box” and vote out Republican lawmakers, Kaplan said. “Unfortunately, in Texas, we can’t have a statewide citizen-led ballot initiative,” to enshrine the right to an abortion in the state Constitution, as voters in other states have done, he added.
The only way to achieve a constitutional amendment in Texas is for the state legislature to first pass a joint House and Senate resolution. Only then can a special election be held for voters to have their say.
Since SB 8 and Texas’ post-Roe total ban on abortion went into effect, at least three young, healthy women have died in Texas hospitals while experiencing miscarriages of much-wanted pregnancies.
“These are unnecessary deaths for mothers who were excited to bring kids into their world. This is medieval stuff and shouldn’t be happening,” Kaplan said.
At least two other healthy young women almost died when treatment for their nonviable ectopic pregnancies was delayed for days by hospitals fearful of treating them due to Texas’ abortion bans. Both lost one of their fallopian tubes due to the delays, impairing their future fertility.
Legal Challenges Fall Short
In response to Texas’ strict ban, which made exceptions nearly impossible to access, Kaplan and the Center for Reproductive Rights filed a lawsuit in 2023 in which they represented 20 Texas women harmed by the law.
The case, Zurawski v. Texas, went all the way to the state Supreme Court, where the women begged the justices to clarify the range of medical exceptions under the ban, so Texas women would no longer need to risk death before being allowed to receive a life-saving procedure.
Amanda Zurawski, the lead plaintiff in the case, nearly died from sepsis after her water broke at 18 weeks—long before her baby was viable. Because her fetus still had a heartbeat, she was forced to wait at home until her fever suddenly soared and she became incoherent—only then could hospital doctors treat her. But by that point, they had to desperately fight for three days to save her life. The infection collapsed Zurawski’s uterus and scarred her fallopian tubes so severely that she may never carry a pregnancy again.
Another plaintiff in the case, Samantha Casiano, lacked the financial resources to leave the state after she learned that her fetus had a fatal condition called anencephaly, in which part of the fetal brain and skull failed to develop. Because of Texas’ abortion ban, she was forced to carry the doomed pregnancy for months, then watch as her tiny baby daughter—whom she named Halo—“gasped for air for four hours” before dying. “It was torture,” Casiano said.
“What kind of a modern society does that to someone on purpose,” asked Kaplan during the hearing. ”How can that possibly be right?”
As Casiano recounted the story about her baby’s birth and death to the Supreme Court justices, Kaplan said, she was so upset “living through that moment again that she vomited on the stand.”
Nevertheless, the Texas Supreme Court was not moved.
The plaintiffs were not asking for the abortion bans to be struck down—just to give clearer guidance to doctors about whether they could intervene to protect a patient’s health before they are close to death. The court refused to clarify the abortion ban’s “medical emergency” exception language, insisting that the law’s language was clear and broad enough.
A Climate of Fear for Doctors
Multiple doctors who spoke to Courier Texas disagree with the court’s assertion that the law is clear and stressed that the law’s ambiguity combined with the severity of the punishments for physicians who break it—up to 99 years in prison, the loss of their medical licenses and a $100,000 fine—have created a climate of fear for medical professionals who care for pregnant patients.
“There is so much gray zone” in the abortion law still, said Dr. Emily Briggs, a family physician who provides obstetric care in Central Texas.
“Doctors feel just really under threat,” added Leah Stewart, an Austin-based healthcare attorney who advises physicians. “[They ask,] what happens if Attorney General Ken Paxton comes after them, and I can’t tell them that won’t happen. I can’t give them any sort of magical protection. …They’re virtually all considering that they may have to leave.”
The state legislature did quietly add some language to the abortion ban statute in 2023, allowing doctors to intervene in cases like Zurawski’s where a patient’s water breaks too early, rendering the fetus nonviable. They also added an exception for some ectopic pregnancies—but not all.
Still, doctors who perform abortions for patients with premature rupture of membranes (PROM) or ectopic pregnancies can still be charged with the state’s full scope of punishments. The legislature has only given doctors a right to defend themselves—called an affirmative defense—if they can demonstrate that they used “reasonable medical judgment” in performing an abortion under the circumstances.
Lack of Legal Help for Miscarriages
Dr. Nancy Binford, an Austin-based OB-GYN, points out, however, that sadly lawmakers have done nothing to address the confusion around the legality of care for miscarriages. As a result, many OB-GYNs in Texas hospitals are still so terrified that Paxton will prosecute them that they won’t treat women bleeding heavily from miscarriages quickly enough to save their lives.
Portia Negumezi, 35, a Houston mother of two, died just 10 hours after arriving at Houston Methodist Sugar Land Hospital while bleeding so profusely that she was passing blood clots the size of grapefruits and required two blood transfusions.
Before Texas passed its abortion bans, doctors could promptly perform a quick standard procedure called a D&C (dilation and curettage) to empty the uterus of the pregnancy remains which would stop the hemorrhaging, according to Dr. Binford.
But now, “If you decide to do a surgical procedure [like a D&C], then all these red flags go up,” she said.
That’s why OB-GYNs like Dr. Todd Ivey, a Houston-based physician, hope that doctors can convince Republican lawmakers to “let us help them make common-sense laws” around abortion restrictions.
“I don’t think they are malicious people,” he said. “But lawmakers don’t go to medical school, and they don’t always understand these things. And just because you’re a physician in the Texas Legislature doesn’t mean you understand women’s healthcare.”
Many Republican legislators haven’t been deterred in their quest to restrict women’s healthcare procedures and medications—despite a 56 percent spike in maternal mortality in Texas from 2019 to 2022 and new reporting from ProPublica that shows the rate of sepsis during second-trimester pregnancy loss has surged by over 50 percent.
Republican lawmaker Pat Curry of Waco has proposed HB 1339, which would classify misoprostol and mifepristone as “controlled substances.” That means the medications would have to be kept in passcode-protected storage lockers outside labor and delivery rooms.
“It’s dangerous and it puts women at unnecessary risk,” said Dr. Ivey, who explains that misoprostol is essential to stop women from bleeding to death in less than 15 minutes if they hemorrhage after childbirth.
That’s why, Dr. Ivey insisted, the medication needs to be easily accessible to OB-GYNs during childbirth deliveries.
Do Republican Lawmakers Care About More Deaths?
Lt. Gov. Dan Patrick, who oversees the Republican-dominated Senate, planted a seed of hope for Texans fearing for the lives of pregnant women when he said last month that he thought lawmakers “need to clarify any language so that doctors are not in fear of being penalized if they think the life of the mother is at risk.”
Stewart, an Austin-based attorney, thinks Patrick’s words are “meaningful,” but she doesn’t know whether he will prioritize getting the law clarified this session.
Kaplan isn’t buying what Patrick said, though. “This issue was not on his priorities list. That said, I hope he proves me wrong and takes action to stop this unnecessary danger.”
Kaplan doesn’t believe that antiabortion Republican lawmakers care if more women die, despite warnings from 111 Texas OB-GYNs who sent a letter urging state lawmakers to change the law.
“The law is obviously, as a practical matter, not working, because doctors can’t provide the care,” he said. “The doctors are clearly telling the legislature this. We filed multiple lawsuits to alert the public to this.”
“If the legislature passed a law that caused oil field operators to cap all their wells and stop drilling, you better believe there would be a special session called to fix that law because the law is not working as intended,” Kaplan added.
Since the Texas courts and lawmakers won’t make any major change to the law, the only way for Texans to stop women from dying from pregnancy complications is to “vote the legislators out,” reiterated Kaplan.
“Unfortunately we did not see that [in November].”
