Texas top court won't guarantee right to abortion in complicated pregnancies

[June 01, 2024]  By Brendan Pierson

(Reuters) -Texas' highest court on Friday refused to ensure that doctors in the U.S. state are not prosecuted for abortions they believe are necessary in medically complicated pregnancies, rejecting a lawsuit by 22 patients and physicians.

The Texas Supreme Court's decision follows an earlier ruling from the court denying a woman's request for an emergency abortion of a non-viable pregnancy. In both cases, plaintiffs said the medical exception to the state's near-total abortion ban was unclear, and left doctors unwilling to perform medically necessary abortions in the face of severe penalties including potentially life in prison.

Texas law allows abortion when, in a doctor's "reasonable medical judgment," the mother has "a life-threatening physical condition that places her at risk of death or serious physical impairment." Justice Jane Bland wrote for the unanimous court that the state's constitution does not guarantee any broader right to abortion than that.

Bland also wrote that the law allows an abortion "before death or serious physical impairment are imminent," but did not offer any further detail about what circumstances would be covered by the exception.

Nancy Northrup, president of the Center for Reproductive Rights, which represents the plaintiffs, called the decision "deeply offensive to the women we represent."

"As women are finding out across the country, exceptions to abortion bans are illusory - they're an empty promise," she said.

Texas Attorney General Ken Paxton in a posting on X said, "I will continue to defend the laws enacted by the legislature and uphold the values of the people of Texas by doing everything in my power to protect mothers and babies."

A non-jury trial in Indiana on a similar legal challenge to the scope of that state's medical emergency exception to its abortion ban is expected to conclude on Friday.

Cases over when medical exemptions to abortion bans apply are pending in several other states, as well as before the U.S. Supreme Court, which is weighing whether a federal law that ensures patients receive emergency care conflicts with Idaho's abortion ban.

The Texas lawsuit was filed in March 2023 by five women who said they were denied medically necessary abortions despite the grave risk to their lives, as well as two doctors. Another 15 patients have since joined the case, bringing the total to 22.

Abortion rights demonstrators fill the courtyard of Denton City Hall as Denton’s city council meets to vote on a resolution seeking to make enforcing Texas’ trigger law on abortion a low priority for its police force, in Denton, Texas, U.S. June 28, 2022. REUTERS/Shelby Tauber/File Photo

The patients all said they had suffered pregnancy complications requiring abortions, or faced a risk of such complications in the future. Some said they had been forced to travel out of state to terminate a pregnancy.

One plaintiff, Amanda Zurawski, was hospitalized in Texas when her water broke at 18 weeks of pregnancy, a condition known as premature rupture of membranes, meaning her fetus could not be saved. She was told she could not have an abortion until fetal cardiac activity stopped or her condition became life-threatening.

Zurawski developed sepsis within days, which required intensive care and allowed the hospital to induce labor.

The case was one of the first in which pregnant women sued over abortion bans imposed after the U.S. Supreme Court in 2022 overturned its landmark Roe v. Wade decision, which had established a right to abortion nationwide.

Last August, the plaintiffs won an order from a trial court judge shielding doctors from prosecution for abortions they believed in "good faith" were necessary under a range of circumstances, including when a pregnancy poses a health risk, exacerbates a health condition or when the fetus is unlikely to survive after birth.

Bland wrote that the order went against the law by replacing the "objective" standard of "reasonable medical judgment" with a "subjective" one of "good faith." She also said it expanded the exception to include non-fatal health conditions and to consider the fetus's likelihood of survival, which are not part of the law as written.

Two justices, Debra Lehrmann and J. Brett Busby, wrote in concurring opinions that the law could be subject to future legal challenges seeking further clarity, even though they agreed the lower court order went too far.

Lehrmann also wrote that the medical community had an "immediate duty to articulate more detailed standards and best practices" around the emergency abortion exception. The Texas Medical Board proposed new rules interpreting the exception at a public meeting last week, but many in attendance said they failed to provide the necessary clarity.

(Reporting By Brendan Pierson in New York; editing by Bill Berkrot, Chizu Nomiyama and Alexia Garamfalvi)

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