Texas Supreme Court considers abortion challenge

President of Center for Reproductive Rights Nancy Northup speaks at a press conference announcing the filing of Zurawski v. State of Texas, at the Capitol on March 7, 2023. The lawsuit demands clarity from the state on what constitutes a medical emergency exception to abortion bans. (Leila Saidane/The Texas Tribune, Leila Saidane/The Texas Tribune)

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The Supreme Court of Texas heard arguments Tuesday in a landmark case that could impact how the state’s abortion laws apply to medically complicated pregnancies.

In August, state District Judge Jessica Mangrum ruled that the near-total abortion ban cannot be enforced in cases involving complicated pregnancies, including lethal fetal diagnoses. The state immediately appealed that ruling, putting it on hold.

Texas law allows abortions only when it is necessary to save the life of the pregnant patient. But this lawsuit, filed by the Center for Reproductive Rights in March, claims that doctors are unsure when the medical exception applies, resulting in delayed or denied care.

“No one knows what [the exception] means and the state won’t tell us,” Molly Duane, senior attorney for the Center for Reproductive Rights, told the justices Tuesday.

The state argues the judge went too far in her injunction by reading exceptions into the law beyond what the Legislature intended.

“What the legislature has done is chosen to value unborn life and prohibit abortion in all circumstances, unless that life is going to conflict with the life of the mother,” said assistant attorney general Beth Klusmann. “The legislature has set the bar high, but there is nothing unconstitutional in their decision to do so.”

Justice Jimmy Blacklock questioned Duane on the “capaciousness” of the injunction, asking whether this might allow abortions as a result of common pregnancy complications like high blood pressure.

“It seems to me, looking at the case you presented and the injunction that was granted, that this very well could open the door far more widely than you’re acknowledging,” he said.

Duane said the injunction would only apply to emergent medical conditions that could become critical or life-threatening if not treated. But she acknowledged that Mangrum’s ruling is “doing more work than normal,” because “legislators don’t usually write laws that people who are regulated by those laws simply do not understand.”

This case represents the first time since before Roe v. Wade was decided in 1973 that women affected by state abortion bans have directly challenged those laws in court. Twenty women and two doctors have signed onto the case.

Most of the women were carrying wanted pregnancies that endangered their health or had limited chance of viability outside of the womb. Many had to travel to abortion clinics out-of-state. Some continued their pregnancies, delivering babies that survived only minutes or hours. Others were told to wait until they were closer to death before the hospital was willing to terminate the pregnancy.

At the center of Tuesday’s hearing was the question of standing, or whether the plaintiffs have the legal right to bring this suit. The state has argued that because these women are not actively seeking abortions at the moment, clarifying the law would not address their claims.

Justice Jeff Boyd seemed aghast at that argument.

“Your position is that, in order to seek the kind of clarity that these plaintiffs are seeking, you have to have a woman who is pregnant, who has some health condition that she believes places her life at risk or impairment to a major bodily function, but her doctor says, ‘I don't think it does,’” he said. “And she has to then sue the doctor, and maybe the attorney general, at that point, and then she would have standing and sovereign immunity would be waived?”

Klusmann said that wasn’t the only situation that would generate standing, but “you would at least then know that the law is the problem, and not the doctor.”

“Some of these women appear to have fallen within these exceptions but their doctors still said no,” she said. “That’s not the fault of the law.”

“That’s what gives rise to the need for clarity,” Boyd said, exasperated.

Several of the justices asked Duane why the Center for Reproductive Rights did not bring a wider suit, challenging the law on the grounds that it is too vague to be properly enforced.

“Generally, a vagueness challenge is a facial challenge to the statute, to take down the entire statute,” Duane said after the hearing. “So if that’s what the court wants us to do, we’re happy to do it.”

The justices did not indicate when they expected to rule. Duane said they anticipated a ruling by June.

The number of plaintiffs in the lawsuit has more than tripled since it was originally filed in March, and the center has filed similar suits in Tennessee, Idaho and Oklahoma.

While she was sitting in the courtroom today, Duane said, she got a call on her cell phone. It was another woman in Texas, interested in joining the case.