Earlier this year, the Center for Reproductive Rights filed a lawsuit, Zurawski v. State of Texas, on behalf of several women who needed emergent abortion care when their planned, wanted pregnancies went south either because the pregnancy became non-viable or its continuation threatened the woman’s life or health. In each case, the woman needed abortion care to preserve her life, health, or fertility; yet, in each case, she was turned away by doctors and hospitals because she wasn’t sick enough to make the abortion lawful. The lawsuit arises out of the Texas abortion ban that took effect in August 2022, which prohibits abortions unless a narrow, poorly defined medical emergency exception applies. The lawsuit asked the court to clarify that the exception must be broad enough to allow doctors to use their good-faith judgment about when an abortion is necessary to protect the woman’s life, health, or fertility.
A trial judge has issued a temporary injunction in favor of the plaintiffs, but that ruling was put on hold as soon as Texas filed an appeal. The status of the medical emergency exception thus remains in limbo.
Texas Prepares for the End of Roe v. Wade
To understand this lawsuit—and the problem it seeks to address—one needs a little background on abortion law generally, and Texas law in particular.
From 1973 until 2022, abortion was protected as a constitutional right under the U.S. Supreme Court’s rulings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Although these rulings gave states some leeway to regulate abortion and impose some restrictions, they did not permit states to ban pre-viability abortion. In the United States today, a fetus could possibly survive outside the womb—i.e. reach viability—around the twenty-third week of pregnancy.
Notwithstanding this constitutional protection, Texas enacted a law in 2021 known as SB 8 that effectively eliminated abortions after the sixth week of pregnancy (just four weeks after fertilization). This law provided a preview of the post-Dobbs world because it eliminated most abortion access in the state of Texas. But it did so in a devious way that was designed to evade judicial review—and it succeeded in that quest. The law, which is still in force, provides that any individual can sue in civil court for an abortion that takes place after the detection of embryonic cardiac activity, which occurs in most cases around the end of the sixth week after the first day of a woman’s last menstrual period (two weeks after most pregnancies are detectible). That individual could sue not only an abortion provider, but anyone who “aided and abetted” the abortion for a minimum of $10,000 per defendant. The law also changed the rules of civil procedure only for this particular cause of action to make it virtually impossible for any defendant to have a fair opportunity to put up a defense.
Both the U.S. Court of Appeals for the Fifth Circuit and then the U.S. Supreme Court permitted SB 8 to take effect even though it would effectively eliminate 85-90% of abortions, most of them before viability, and even though the constitutional protection for abortion was still in existence. (More details on the challenges to SB 8 can be found here.) SB 8 remains good law in Texas today.
The End of Roe v. Wade
Nine months after SB 8 took effect, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, in which it eliminated the federal constitutional right to seek an abortion. Although the Court had recognized and then reaffirmed the right to abortion in Roe and Casey, respectively, and applied those precedents in dozens of other cases, the composition of the Court had changed. Thanks to Trump’s three Supreme Court appointments—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—the Court lurched to the far right. The anti-abortion movement finally succeeded in capturing the Court, and Roe disappeared. (More detail on the path from Roe to Casey to Dobbs can be found here.)
The protection under Roe/Casey was part and parcel of an era that gave women greater control over reproduction—and thus facilitated their greater integration into the labor force and other aspects of life outside the home. But it also protected their lives. A person is fourteen times more likely to die from complications of pregnancy or childbirth than from abortion, and pregnancy also exposes women to an enormous array of health risks.
With its ruling in Dobbs, the Supreme Court effectively returned the issue of abortion to the states. It is not clear whether any abortion restriction, no matter how harsh, would be held to violate the Due Process Clause (formerly the home of abortion rights) under the highly deferential standard of review that will now be applied.
The Aftermath of Dobbs in Texas
States controlled by the GOP rushed to pass criminal bans on abortion after Dobbs. More than a dozen states currently have such bans in effect; and bans in several more states are on the books but on hold due to legal challenges. The Texas GOP had eagerly prepared for the possibility that Roe would be overturned. During the 2021 legislative session, it enacted House Bill 1280, a “Roe trigger ban,” which provided that if and when Roe was overruled, abortion would become almost completely prohibited 30 days later. On August 25, 2022, that ban indeed took effect.
HB 1280, or the Human Life Protection Act of 2021, prohibits a person from “knowingly performing, inducing, or attempting an abortion on another person.” An abortion is defined by reference to section 245.002 of the Texas Health and Safety Code, which states as follows:
“Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to
- save the life or preserve the health of an unborn child;
- remove a dead, unborn child whose death was caused by spontaneous abortion; or
- remove an ectopic pregnancy.
This ban covers both surgical and medication abortions. Also, while the definition of abortion excludes a procedure to “remove a dead, unborn child whose death was caused by spontaneous abortion,” this only applies to a miscarriage where the embryo or fetus has no detectable cardiac activity. A non-viable pregnancy, with no chance that it will result in a live birth (for example, when the amniotic sac breaks well before viability) cannot be “removed” unless cardiac activity has ceased on its own.
The crux of HB 1280 is that it “prohibits” a person from providing an abortion for another person. (None of these laws apply to self-managed abortion; it is neither a criminal act nor a violation of SB 8 for a pregnant person to terminate her own pregnancy through any means.) The penalty under the trigger law for performing an illegal abortion is extraordinarily harsh—a single unlawful abortion could result in the provider’s imprisonment for life, as well as a mandatory $100,000 civil penalty imposed by the state’s attorney general.
The Medical Emergency Exception at Issue in Zurawski v. State of Texas
The trigger law contains a narrow exception for “medical emergencies,” which are defined by HB 1280 to occur when a pregnant person is experiencing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that exposes them to “danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” This exception is written to preclude its application to mental health emergencies or threats of self-harm, which were often used by doctors to justify abortions under the pre-Roe bans in Texas and elsewhere.
The scope and application of the medical emergency exception is totally unclear on its face. There are many words used to describe the exception that have uncertain meaning—and certainly do not answer important questions about how to apply them in the emergency medical care setting. For example, an abortion is lawful if the pregnancy is “life-threatening” to the person who is pregnant. How likely does death have to be before the pregnancy is deemed “life-threatening”? If the patient has a 20 percent chance of dying if she remains pregnant, is that “life-threatening”? How about 50 percent or 80 percent or 2 percent?
The emergency exception also allows abortion when pregnancy exposes the person to a “serious risk of substantial impairment of a major bodily function.” What constitutes a “serious risk”? What constitutes a “substantial impairment”? What qualifies as a “major bodily function”? The vagueness and uncertainty of this exception means that doctors and hospitals have to make a determination about when they are willing to provide abortion care with no guarantee that they will be protected from criminal prosecution. A doctor who contemplates providing any abortion will have to consider the costs of being “wrong”—second-guessed by a prosecutor and a judge or jury about a medical decision that the legal system is not equipped even to understand. Moreover, the harsh penalties contained in HB 1280 mean that the cost of being wrong is staggering. It should come as no surprise that doctors and hospitals (many of whom will be counseled in advance by lawyers) will err on the side of not performing necessary abortions because the cost of erring in the other direction could be too devastating.
Although the problems with this poorly drafted, too-narrow exception were obvious even before the law took effect, the experience of pregnant women in Texas since then have borne out every worst-case scenario. These cases are at the heart of the Zurawski case. The experiences of the five original plaintiffs in this lawsuit painfully illustrate the harsh consequences of this law on people facing obstetrical emergencies:
- Amanda Zurawski, the lead plaintiff, was denied abortion care after her membranes ruptured prematurely at 18 weeks. Although the fetus could never reach viability, doctors detected cardiac activity and thus refused to terminate the pregnancy. She developed sepsis, a life-threatening infection, and ended up in the ICU. Only then did she receive an abortion. She survived but lost one of her fallopian tubes, which might prevent her from getting pregnant again.
- Lauren Miller was hospitalized while pregnant with twins due to hyperemesis gravidarum, a condition that jeopardizes the safety of the patient and the pregnancy. In addition, one of her twins was diagnosed with a chromosomal abnormality that is incompatible with life. Lauren wanted a fetal reduction in order to give the healthy twin the best chance of survival but was denied the care in Texas. She traveled to Colorado, while seriously ill, to obtain the care.
- Lauren Hall was carrying a fetus with no skull—a condition called anencephaly. A fetus with this condition cannot survive, and the pregnancy exposed her to severe risks such as hemorrhage. She was denied care and forced to travel to Seattle; her doctors were afraid even to share her medical records for fear of being prosecuted.
- Anna Zargarian had her water break and began cramping at 19 weeks. Though doctors told her the fetus could not survive, she was denied abortion care. She flew to Colorado while risking sepsis and hemorrhage.
- Ashley Brandt was pregnant with twins, one of whom had acrania, which is incompatible with life outside the womb. She needed a fetal reduction in order to keep herself and the other twin safe. She, too, traveled to Colorado to get the care she needed.
The complaint was amended to include additional plaintiffs, including one woman who had to carry to full term and give birth to a baby with anencephaly, knowing the baby would not survive and watching her die four hours after she was delivered. The complaint in this case should be required reading for any person who supports the abortion ban.
Each story detailed in this lawsuit is tragic in its own way, but together they illustrate that it is simply not possible to legislate medical care in this way. Doctors need the freedom to provide their patients with the standard of care dictated by medical science—not the random definition of an “emergency” cooked up in a legislative committee meeting.
The Trial Court’s Ruling in Zurawski v. State of Texas
The plaintiffs in this case did not ask the court to invalidate the Texas abortion ban. Rather, they asked the court to clarify that the law could not be enforced against a doctor who provided abortion care based on the doctor’s determination of medical necessity. In a ruling issued on August 4, 2023, the trial court granted the temporary injunction sought by the plaintiffs. In a short ruling, the court held that the defendants (various state officials, including the impeached-and-suspended attorney general, Ken Paxton) cannot enforce any of the existing abortion laws in the state “in any manner that would prevent pregnant Texans with emergent medical conditions from receiving abortion care, while this litigation proceeds.”
In support of this injunction, the court found that there was uncertainty about the scope of the medical emergency exception and, in particular, whether physicians are permitted to provide abortion care when, in their good-faith judgment, they determine that the patient has a “physical emergent medical condition.” The court found that such conditions “include, at a minimum: a physical medical condition or complication of pregnancy that poses a risk of infection, or otherwise makes continuing a pregnancy unsafe for the pregnant person; a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.” Because it is not clear whether the exception permits care in these cases, the court found that enforcement of the law against physicians would be beyond the defendants’ authority. The court also found that enforcement of the law in the case of a physical emergent condition would violate the patient’s rights under the Texas Constitution.
The court found that the plaintiffs had standing to challenge the medical emergency exception because they required abortion care in order to preserve their lives or health but care was delayed or denied because of the uncertainty about the scope of the exception. And while the need for care had passed for these plaintiffs, the court found they had brought claims that “are capable of repetition but evading review,” the same basis for standing in Roe v. Wade.
The temporary injunction was warranted in the court’s view because of the high risk that pregnant persons, physicians, and others in Texas will face irreparable injury if the law is permitted to be enforced during the litigation (just as these plaintiffs were themselves harmed by the law).
In the end, the court enjoined the defendants from enforcing the abortion bans “in connection with any abortion care provided by . . . physicians throughout Texas to a pregnant person where, in a physician’s good faith judgment and in consultation with the pregnant person, the pregnant person has an emergent medical condition requiring abortion care.”
Before the midnight on the same day, the State of Texas appealed the ruling, which automatically put the injunction on hold. A trial is set for March 2024.
The impact of the abortion ban on pregnant people who want abortions is obvious—cruel, disproportionately burdensome for our most marginalized communities, and incompatible with human dignity, but obvious. Yet, what this lawsuit shows is that abortion bans have changed the way obstetrical care is practiced across the board. The plaintiffs in this case did not want abortions, at least not until their pregnancies jeopardized their lives or they learned that the fetuses they were carrying would never result in a living child. And they were told by their doctors that because of Texas law, their lives simply didn’t matter. This lawsuit seeks to reduce the incredible harm inflicted by the law on this subset of people by clarifying the scope of the medical emergency exception. Ruling in their favor is quite literally the least that should be done to rectify the disaster wrought by the Texas GOP in the wake of Dobbs.