Texas woman's story shows why exceptions don't work for abortions
Lauren Miller was a plaintiff in a case in which several women and doctors sought clarity on when and where abortion could be performed under state's strict ban
(Lauren Miller and her husband Jason)
Lauren Miller endured what dozens of women have suffered since the Supreme Court overturned Roe v. Wade. In its wake, antiabortion bans like the one in Texas have instilled fear in doctors who would otherwise perform life-saving and needed care, as in her case.
Miller had been trying to add another child to her family with her husband, Jason. After developing a sickness, Miller went to the doctor and discovered she was pregnant with twins.
At the 12-week ultrasound, she learned something was wrong with one of the fetuses. It had Trisomy 18 and several other fatal diagnoses. Doctors told her that it imperiled her life as well as that of the other fetus.
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 have the legal authority to proceed with an abortion to save the woman's life or major bodily function.
Because of the state’s abortion ban and the fear of prosecution, doctors who cared for her didn’t explicitly say that she needed an abortion. One memory of Miller’s is when she spoke with a maternal-fetal medicine specialist.
“He just, in frustration, ripped off his gloves, threw them at the trashcan, not even in, just at it, just so angry, and turned to us and said, ‘I can't help you anymore. This baby isn't going to make it to birth. You need to leave the state,” Miller said.
Miller flew to Colorado and had a fetal reduction procedure, which is when one of the fetuses in a pregnancy involving twins is subject to an abortion. She later gave birth to the other twin, whom she named Henry.
Miller was a plaintiff in the Zurawski case, in which the Texas Supreme Court declined to give further guidance on when it would permit exceptions. 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.
“Exceptions don't work. They are a lie. They are a lie that has been repeated enough to get some people to believe it, but in the real world, they just don't exist.”
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 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 somebody performed an abortion. 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.
If doctors thought that clarified things, it became murky shortly after the Texas Medical Board weighed in. The Texas Medical Board issued new guidelines about when doctors are permitted to perform abortions under the state’s ban at the end of June. They clarified that they permit abortions for ectopic pregnancies. That was received well by the abortion rights community. There were other decisions by the board that weren’t as popular.
Most people complained about the transfer provision, which required doctors to document whether they had tried to transfer the patient to a different facility to perform an abortion. Dr. Sherif Zaafran, president of the Texas Medical Board, spoke at the meeting.
“There are certain things we can address,” Zaafran said. “And there are certain things that we ultimately don’t think we have the authority to address.”
The board didn’t list specific medical conditions that would serve as exceptions.
“The concern with a list is what if something is not on that list,” Zaafran said.
Throughout the Zurawski case and the Medical Board’s deliberation, I corresponded frequently with Amy Bresnen, who was a lawyer pushing for the state to give more straightforward rules on when it would permit abortion under the state’s ban.
Bresnen explained her frustration with the medical board after that decision came down.
“The most important takeaway is that the medical board wanted to wait until the end of the litigation before they took to rulemaking,” Bresnen said. “They waited until the Zurawski opinion came out and then completely ignored the holding and the Zurawski opinion.”
Bresnen said the board's rules are much narrower than the protections provided by the Zurawski decision. She said doctors should have a good attorney.
“Does this alleviate the need for a doctor to call a lawyer?” Bresnen said. “Absolutely not. In fact, it might make it even more important because the new rules do not reflect the standard in Zurawski.”
Legal scholars have begun to analyze many aspects of abortion laws in the tumultuous years since the Dobbs decision. The ground shifts every time we figure out how one case will go. Shortly after that, another question appears in a different case and part of the country.
Elizabeth Sepper, an Associate Professor at Washington University School at the University of Texas, wrote a paper for the Journal of the American Medical Association about the futility of medical boards making exceptions. It’s frightened doctors and hospitals from fulfilling their Hippocratic Oath.
“What we've probably seen is just institutional cowardice, and the result has been some real suffering,” Sepper said.
The stiff penalties, including the 99-year prison sentence, are the scariest. And it’s without precedent. Before Roe v. Wade, most sentences for criminal abortion were roughly three years in prison with a fine.
Texas isn’t the only state where this could become an issue. Others have proscribed similar penalties and sentences for abortion.
“Criminal enforcement exists as a backstop in every single state. So, the medical board cannot say, ‘We can reassure you that the district attorney of Amarillo will not be prosecuting you for this specific kind of abortion. They can't engage in that kind of control over what local prosecutors might do.”