Texas Supreme Court upholds trigger ban, denies 20 women legal relief for abortions
The case had emerged after numerous women had reported being denied life-saving care because doctors feared investigation and prosecution
A doctor’s confidence in when and where they can perform an abortion in Texas is still questionable after the state supreme court declined to give additional guidance on when it was permissible under the state’s ban on the procedure.Â
Twenty women had filed a complaint in the judicial system earlier this year. The case, known as Zurawski v. Texas, reached the highest court in Texas. Activists and lawyers in the state had sought to get clarification for doctors so that they could figure out safely and with impunity when they could perform abortions under the life-saving exception written into the law that forbids abortion. Two doctors had joined on as plaintiffs.Â
The Human Life Protection Act, which makes abortion punishable by up to 99 years in prison in Texas, has a stipulation. A woman with a life-threatening physical condition and her physician has the legal authority to proceed with an abortion to save the woman's life or major bodily function.Â
The Center for Reproductive Rights brought the case, seeking action from the state medical board, the attorney general, and the state supreme court to protect doctors in these scenarios. The Center argued that such a standard makes doctors susceptible to a battle of the experts when only some doctors might reach the same medical judgment in each case.Â
Amanda Zurawski, the lead plaintiff, had been informed by two doctors that her pregnancy would result in miscarriage. Her doctors refused to perform an abortion because the fetus had a heartbeat. Zurawski later developed septic shock. Doctors then induced a stillborn baby. Zurawski remained in emergency care for three days. Scarring from the infection was so severe that she required surgical reconstruction of her uterus and lost one of her Fallopian tubes.Â
A medical expert had testified on the plaintiff’s behalf earlier in the case that doctors in Texas had opted not to perform the abortion to err on the side of legal caution. Dr. Damla Karsan had been the doctor who treated Kate Cox, who had learned that her pregnancy had a trisomy 18, which causes severe developmental problems. Cox wanted to get an abortion.Â
The Supreme Court found that doctors listed as plaintiffs had legal standing because they could be prosecuted under the order. The woman didn’t, though. The state supreme court judges wrote in the majority opinion the burden is the State’s to prove that no reasonable physician would have concluded that the mother had a life-threatening physical condition that placed her at risk of death or of substantial impairment of a major bodily function unless the abortion was performed.
That’s worth exploring further because the court contends that prosecutors would have to show that there wouldn’t be a single doctor who would perform the procedure in a given circumstance. In the event of a prosecution, doctors could summon other medical experts who could testify that they would also have performed an abortion. They can also cite peer-reviewed studies to justify their decision.Â
Nonetheless, the potential legal expenses that would emerge from such a criminal defense are in and of itself a deterrent to performing necessary abortions.Â
This legal development comes a week after the Texas Medical Board met to discuss clarifications to the abortion law. Doctors who appeared at that meeting were unhappy with its approach to the debate. They left dissatisfied, according to some reporting on the issue. Many doctors in the state are performing C-sections instead of traditional abortion methods that are safer because they may be construed as legal by prosecuting and investigating authorities.Â
I hope to have more legal analysis on this critical case in the coming weeks. I have attached the decision and concurring opinions.Â
