Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
One woman could barely get words out through her tears. Another ran to the restroom as soon as she was done, wordless, wretched sobs wracking her tiny body. A third threw up on the witness stand.
These are believed to be the first women in the country since 1973 to testify in court about the impacts of a state abortion ban on their pregnancies. They almost certainly won’t be the last.
Speaking to a packed Travis County courtroom Wednesday, three women detailed devastating pregnancy losses and said medically necessary care was delayed or denied due to their doctors’ confusion over Texas’ abortion laws.
They’re challenging a clause in the state’s abortion ban that says a doctor can perform an abortion only if they believe the patient has “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that puts the patient “at risk of death or poses a serious risk of substantial impairment of a major bodily function.”
Doctors have reported delaying necessary pregnancy care for fear of violating the law, which allows doctors to be punished by up to 99 years in prison, a $100,000 fine and the loss of their medical license. The lawsuit, brought by the Center for Reproductive Rights, asks a judge to temporarily block the law from applying to medically necessary abortions and ultimately clarify when a medical emergency justifies an abortion.
Texas is asking District Judge Jessica Mangrum to dismiss the case, arguing these women have only their doctors to blame for any disruptions to their care.
At the end of each tearful testimony, lawyers for the state asked the women the same questions: Did Attorney General Ken Paxton tell you you couldn’t get an abortion? Did anyone, working in any capacity for the state, tell you you couldn’t get an abortion?
As soon as the U.S. Supreme Court overturned Roe v. Wade and allowed states to set their own laws about abortion, Texas descended into legal uncertainty. The state already banned nearly all abortions after about six weeks of pregnancy, enforced entirely through private lawsuits. The day of the ruling, Paxton issued guidance indicating that the state’s pre-Roe statutes, which have been on the books since before the Civil War, were also in effect.
Before a court could confirm whether Paxton’s guidance was accurate, the state’s “trigger ban” went into effect, banning all abortions from the moment of conception, with only an exception to save the life of the pregnant patient.
Amanda Zurawski learned the trigger law had gone into effect from a hospital bed in Austin, watching the only channel she could get on the television. She was in septic shock and would eventually spend three days in the intensive care unit.
Just three days prior, Zurawski had been proceeding through her pregnancy as planned, carrying a baby girl she and her husband had hoped, prayed and endured grueling rounds of fertility treatments to conceive.
She suddenly noticed fluid leaking down her leg and her body felt wider than usual. Her cervix was dilating early, and she had lost the amniotic fluid she needed to maintain her pregnancy. Her doctor told her “miscarriage was inevitable,” she testified Wednesday, but since there was still a fetal heartbeat, they could not induce labor.
She went to the hospital for a second opinion and heard the same verdict: She would have to wait until she miscarried naturally, or got sick enough that doctors felt legally safe to induce an abortion. She considered traveling to a state where abortion remains legal, but her doctors told her the situation was so dire she needed to stay within 15 minutes of a hospital.
Zurawski was devastated, grappling with the sudden loss of her pregnancy, the confusing medical advice, and the hesitation and fear she sensed from all the doctors and nurses. Every time they checked the baby’s heartbeat, Zurawski was forced to cartwheel through the stages of grief all over again.
“I had to listen to her heartbeat, simultaneously wanting to hear it and not wanting to hear it at the same time,” she said on the witness stand Wednesday, speaking through tears. “If it stopped, they would be able to intervene.”
She was at home when she started to descend into septic shock. She was shaking, her teeth chattering, so freezing cold despite the August heat in Austin. Her husband rushed her to the hospital, where they pumped her with antibiotics. Finally, her doctor agreed to induce labor. She delivered a deceased daughter.
They named her Willow, after a tree that grows both in Central Texas, where the Zurawskis live, and Indiana, where they are from. It means “strength in adversity,” she said Wednesday. They plan to plant a willow tree in her honor at their new house, which they bought when they learned they were pregnant.
Zurawski and her husband would still like to have children, but tests have revealed significant scarring and damage to her reproductive organs as a result of the infection.
Zurawski said she didn’t blame her medical providers, who were rightfully fearful in the early, confusing days after the trigger law went into effect. She said Wednesday that she blames only “the people who support these bans.”
Speaking to a courtroom full of lawyers, reporters and supporters, Samantha Casiano described the day she held her baby daughter, Halo, and watched her gasp out her first and final breaths. Over the course of four hours, Halo went from pink to red to purple, from being warm to cold, Casiano said Wednesday.
As she held her little body, Casiano apologized, again and again.
“I was so sorry that I couldn’t help her or release her going to heaven sooner rather than later,” Casiano recounted for the court through sobs. “I felt so bad. She had no mercy. There was no mercy there for her, and I couldn’t do anything.”
When Casiano learned her fetus had anencephaly, a fetal anomaly that prevented the skull and brainstem from developing fully, she thought maybe she could have surgery to fix it. Her doctor explained the diagnosis was “incompatible with life” — Halo wouldn’t survive outside the womb — but offered little in the way of options.
Casiano considered traveling out of state, but with a job, persistent car trouble and other children waiting for her at home, she couldn’t figure out a way to make the long trip in a hurry. So she carried the pregnancy for an additional 13 weeks before eventually going into labor.
As Casiano described the experience to the court, she began to cry, then she began to cough, then she threw up in her hands, as her husband and a bailiff rushed to the witness stand with wastebaskets.
When the court reconvened, she explained in a small, sad voice that she never used to throw up, but now, it happens all the time.
“I vomit when certain parts of what happen just kind of make my body remember and it just reacts,” she said.
On cross-examination, the state questioned Casiano’s prescription for antidepressants, which her doctor increased after the diagnosis, and asked whether Paxton or anyone from the state had told her she couldn’t have an abortion.
“I almost want to say yes,” she said, noting that if she’d had a chance to ask anyone at the state, they would have told her there was a law in place that prohibited doctors from performing abortions in most cases.
But no, she said. No one from the state told her anything.
When Ashley Brandt learned that one of the twins she was carrying had a lethal fetal anomaly called acrania, she was devastated. That devastation only grew when she learned that the longer she continued her pregnancy with both twins, the greater the risk to herself and the other fetus, which was developing properly.
She needed to terminate one fetus for the other to survive, but her doctors in Texas said the state’s new abortion laws prevented them from helping her until her condition worsened. She and her husband scrambled together money and childcare to get to Colorado, where the procedure took mere minutes.
When she returned, she experienced bleeding. But she was hesitant to go to the doctor, she said, because she felt like a criminal.
“I knew I needed, just for peace of mind, to be checked,” she said, choking out the words between sobs. “But because I had gone out of state for an illegal procedure, I was kind of worried about explaining it to the doctors there. … I didn't want anyone to get in trouble and I didn't want to get in trouble.”
She eventually went to the emergency room for care. The rest of her pregnancy continued without incident, and she delivered her “thriving” daughter by cesarean section at 38 weeks.
“I don't blame my OB or my specialists,” she said. “The law does not take cases like mine into consideration. I did have an anesthesiologist during my C-section who was a state rep, [Cypress Republican] Tom Oliverson, and so I do know that he supports the abortion bans and laws so I do put blame on him.”
Lawyers for the plaintiffs also brought four doctors to the witness stand to testify: Dr. Damla Karsan, Dr. Aaron Caughey, Dr. Ali Raja and Dr. Austin Dennard.
Karsan, a Houston OB-GYN, told the court that the abortion ban's medical exemption is vague and doesn't work in practice.
She told a story of a patient whose fetus was attached to the placenta — a severe condition that is incompatible with life — and who was bleeding from the placenta. Karsan said this woman drove 14 hours to Albuquerque, with her husband and toddler in tow, to receive an abortion, which Karsan believes was medically necessary.
“I feel like my hands are tied,” Karsan said. “I have the skills and training to provide the care but I'm unable to, and it's gut-wrenching,”
In the cross examination, the state focused on the rarity of cases where Karsan believed she was unable to provide a medically necessary abortion. Speaking at a press conference after the hearing Wednesday, she said this wasn’t just about her experience.
“I want everyone to consider how many OB-GYN and family practitioners that do obstetrics in rural areas, and nurse midwives are taking care of pregnant patients in this state,” Karsan said. “Every single one of them has had these experiences.”
On Thursday, Caughey, an OB-GYN and epidemiologist based in Oregon, and Raja, executive vice chair of the Department of Emergency Medicine at Massachusetts General Hospital, provided similar statements to Karsan. They both testified that the law’s medical exception is vague and could confuse Texas practitioners.
The threat of life in prison or the loss of a medical license will make many doctors “err on the side of not treating” patients, Raja said.
The state’s cross-examination focused not on the merits of Caughey and Raja’s arguments, but rather on whether they were qualified to make them, noting that they both practice out of state.
Caughey and Raja testified that there is a “national standard of care” — meaning that though neither have practiced medicine in Texas, their expertise carries across state lines.
The state put forward their own expert witness, Dr. Ingrid Skop, a San Antonio OB-GYN who is also vice-president and director of medical affairs for the anti-abortion Charlotte Lozier Institute. Skop agreed that doctors are fearful, confused and likely withholding medically appropriate care because of the law.
But she said the accountability lies with medical associations and hospital management which have not sufficiently clarified the law.
“I think it is clear that the Texas law allows treatment of life-threatening conditions,” Skop told the judge. “It is not the law’s fault.”
A new era of legal challenges
Over the past few decades, the Center for Reproductive Rights and the attorney general’s office have found themselves in a courtroom just like this one countless times, arguing over the legality of Texas’ abortion laws. Historically, abortion providers were named on the lawsuits and testified on the stand, in an effort to spare the women most impacted by these laws from the pain of public testimony.
At a press conference after the hearing, Molly Duane, senior counsel for the Center for Reproductive Rights, said it was difficult to have to walk these women through the worst moments of their lives, but “they did it to hold the state of Texas accountable.”
“As a lawyer, you generally don’t want to cry during work but it was hard not to,” Duane told The Texas Tribune afterward. “It helps people understand how abortion actually is health care. Because I can say it, and doctors can say it, but when these women say it, people can see themselves.”
But there are no more abortion clinics in Texas. These women took the stand Wednesday because there is no one else left to speak for them.
For the women who took the stand, reliving their experiences for the sake of a courtroom full of people was deeply painful. They stood together after the hearing, comforting each other and rubbing each others’ backs, leaning on their partners and each other for support.
“I was horrified by how willing the cross examination was to ask over and over again about the most horrific thing that’s ever happened to me, seemingly with nothing but callousness,” Zurawski said after the hearing. “I survived sepsis, and I don’t think that today was much less traumatic.”
During the most recent regular legislative session, Texas passed a law that provided some additional protections for doctors who perform abortions in cases of ectopic pregnancies and previable premature rupture of membranes, both of which can be fatal if left untreated. The law goes into effect Sept. 1.
Assistant Attorney General Amy Pletscher said while these women’s stories are “indisputably tragic,” they do not warrant a judge taking steps to modify the laws.
“Any future harm is purely hypothetical and therefore does not warrant injunctive relief,” Pletscher told the judge. “Given the nature of plaintiffs’ past experiences, it is understandable that they are seeking to place blame, but the blame directed at defendants is misplaced. Rather, plaintiffs sustained their alleged injuries as a direct result of their own medical providers failing them.”
Standing before the judge Wednesday, Duane said the state has long argued that clinics do not have standing to challenge abortion law and claimed it is unlawful to challenge abortion laws before they go into effect. But now that the Center for Reproductive Rights has brought a suit with plaintiffs who are directly harmed as a result of the trigger law, the state still says there are no grounds for a suit.
“It begs the question: Does the state think that the only person who would have standing to challenge an abortion law is a woman who comes to court with amniotic fluid or blood dripping down her leg?”
After two days of testimony, Mangrum said she would weigh the evidence and expected to rule in a matter of weeks.
Join us for conversations that matter with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23.