Texas Supreme Court questions doctors’ choices in high-risk pregnancies

In the case Zurawski v. State of Texas, 20 women who experienced pregnancy complications and two physicians are suing Texas, arguing that the limited medical exceptions in its pro-life laws are causing delays in necessary medical care for pregnant women. But the state says that in some of the cases, when a pregnancy posed a risk to the mother’s health, doctors shouldn’t have hesitated to perform an abortion under the existing medical exceptions.

“If … a woman is bleeding or has amniotic fluid running down her legs, then the problem is not with the law. That is with the doctors,” said Texas Assistant Attorney General Beth Klusmann during oral arguments at the Texas Supreme Court last week. “I mean, that woman clearly would qualify for the medical emergency exception.”

Under Klusmann’s interpretation of the law, doctors of lead plaintiff Amanda Zurawski could have legally performed an abortion once her water broke at 18 weeks of gestation. But because her vital signs were stable at the time, doctors waited until she developed a severe infection to perform the abortion. In direct questioning, the Texas justices repeatedly challenged the plaintiffs’ attorney with the question: If Texas law allows for abortions in such cases, why aren’t these women suing their doctors instead?

Zurawski is one of several ongoing cases targeting the limited medical exceptions in state laws that protect babies from abortion. In the Texas case and in two similar ones in Tennessee and Idaho, doctors and women who had complicated pregnancies are suing their states, arguing that abortion laws force doctors to face severe felony charges or wait until a pregnant mother is on the brink of death before ending a dangerous pregnancy. But, in Texas, the law’s supporters argue that doctors are failing to interpret the rules accurately. They argue that the continuation of abortions under the state’s medical exception shows that at least some doctors have no issue doing so.

When the justices on the Texas Supreme Court asked whether the patients brought medical malpractice cases against their doctors, Center for Reproductive Rights attorney Molly Duane shifted the blame to the law. “Because, as all of our patient plaintiffs have testified to, their doctors didn’t know what to do. Their hands were tied by the law,” she said, insisting that the women didn’t blame their doctors for what they went through.

The state wants the Texas Supreme Court to stop broader exceptions outlined by a lower court from taking effect as litigation proceeds. After the oral arguments, some pro-abortion commentators dismissed the state’s arguments in defense of its own laws as cruel. One equated it to “forcing Texans to give birth or die trying.”

But Texas Alliance for Life special counsel Paul Linton, an attorney who helped draft the bill that would become Texas’ law, called that a mischaracterization of the legislation.

“As to whether or not the abortion can be performed … there’s no requirement that it be a medical emergency, there’s no requirement that the threat to the woman’s life or her physical or serious physical health, be imminent, urgent, immediate,” Linton said. “None of that language is in there.”

Even pro-life doctors disagree about the best way to deal with the kind of complications Zurawski faced, with some claiming that it would not be pro-life to induce labor on a baby that is not yet viable if the woman is not in imminent danger. But Linton believes that some of the doctors in this case—such as Zurawski’s physicians—likely committed medical malpractice when they delayed taking action as the health of their patients deteriorated.

Other Texas doctors, he said, appear undeterred from offering abortions under the medical exceptions.

From January to July 2023, the most recent published data, Texas Health and Human Services recorded a total of 34 reported abortions in the state. All 34 took place in hospitals and were performed due to a medical emergency and to preserve a woman’s health, according to records. Twenty-seven are listed as drug-induced abortions, which are generally a multiple-day process, implying that these doctors did not wait until the women were on the brink of death.

Duane, of the Center for Reproductive Rights, asserted in oral arguments that Texas Attorney General Ken Paxton has shown a clear intention to penalize doctors for violating the state’s abortion laws. But Texas Alliance for Life executive director Joe Pojman sees the state’s latest abortion records as evidence that Duane’s claim is unsubstantiated. “Otherwise that would have happened already,” Pojman said, pointing to the lack of action from the attorney general in these recorded cases. “We don’t have any evidence that the attorney general has an interest in being aggressive in this respect for doctors who are practicing medicine according to the standard of care.”

Texas Alliance for Life’s Linton noted that in any case in which the doctor performs an abortion that seems to fall on the margins of what’s legally allowed, law enforcement officials are still unlikely to bring a case against that doctor. “If it is a close question, it’s going to be all the more difficult for the state to prove that what the doctor did was unreasonable,” Linton said. “Prosecutors like to bring cases that they’re going to win.”

Pro-life groups in the state expect the court to issue a ruling in the case in the coming months, either allowing the broad exception language from the lower court’s temporary injunction to stand or upholding the pro-life laws as the legislature wrote them. The Zurawski case has advanced further than the cases in Idaho and Tennessee, and Pojman said a decision in this case could help other state courts decide how to rule on questions about medical exceptions.

“Perhaps they make it clear—which was clear from plain reading in the law—that there’s no requirement that the woman’s death had to be imminent to satisfy the life of the mother exception,” Pojman said. “But predicting what any court is going to do is like reading tea leaves.”