Lawsuit over Texas abortion ban could be a model in other states

By: - August 1, 2023 12:34 pm

Amanda Zurawski, who developed sepsis and nearly died after being refused an abortion when her water broke at 18 weeks, center, listens to her attorney Molly Duane, right, outside the Travis County Courthouse on July 19, 2023, in Austin, Texas. Zurawski and a dozen other women argue in a lawsuit that Texas doctors and hospitals denied them necessary care because the providers were afraid to run afoul of the state’s abortion ban. (AP Photo/Eric Gay)

AUSTIN, Texas — A lawsuit in Texas asserting that the state’s abortion ban imperils women by dissuading doctors from ending dangerous pregnancies could provide a template for similar challenges across the country.

Texas is one of 14 states that banned abortion after the U.S. Supreme Court struck down Roe v. Wade. The Texas ban includes an exception that allows physicians to end a pregnancy if it could result in the death of the woman or a “substantial impairment of a major bodily function.”

But the plaintiffs in the case, more than a dozen Texas women, argue that doctors and hospitals denied them necessary care because the providers were afraid to run afoul of the law. Those who violate the ban could face up to 99 years in prison, a $100,000 fine and loss of their medical license.

Even before the Texas case was filed in March, the same issues were surfacing in other abortion-ban states, generating national attention and intense interest among elected officials in Washington, D.C. Attorneys for the Texas plaintiffs predict that similar suits will be filed in other states.

Nicolas Kabat, an attorney with the Center for Reproductive Rights, the New York-based advocacy group that filed the Texas suit, said “the problem is widespread across states that ban abortion.”

“We’re being contacted by dozens of women telling us similar stories,” Kabat told Stateline, saying “we’re really only scratching the surface here.”

Citing press accounts, the plaintiffs’ petition points to about two dozen women in 11 states outside Texas who have had experiences like those of the Texas women: Alabama, Arizona, Florida, Idaho, Kentucky, Louisiana, Missouri, Ohio, Oklahoma, South Carolina and Tennessee.

“It’s an incredibly important lawsuit and it has implications not only in Texas but in other states that have denied people the right to safe abortion health care,” said former Texas Democratic state Sen. Wendy Davis, a senior adviser to Planned Parenthood Texas Votes who gained national attention a decade ago for her filibuster against a polarizing anti-abortion rights bill.

Attorneys for the Center for Reproductive Rights are asking Travis County District Judge Jessica Mangrum to grant a temporary injunction and craft a new exception to Texas’ abortion ban that gives physicians and hospitals more latitude to provide pregnancy care and perform abortions.

But lawyers for the Texas attorney general’s office, representing the state, depict the suit as a “bald attempt” to usurp state authority over abortion policy.

Mangrum, elected as a Democrat, presided over two days of arguments and testimony in mid-July. She told lawyers at the end of the hearing that it will likely be several weeks before she returns a ruling.

At last month’s hearing, the plaintiffs recounted their personal experiences after they were refused abortions. Amanda Zurawski of Austin, the lead plaintiff, nearly died after she was refused an abortion after her water broke at 18 weeks of pregnancy.

Zurawski and her husband, Josh, had already picked the name for their unborn daughter — Willow — and were planning a baby shower when they received the devastating news that they would lose their first child before birth. Amanda, 36, was diagnosed with a weakening of cervical tissue and told that Willow would not survive. But doctors initially refused to perform an abortion, she said, because they could detect fetal cardiac activity.

Several days later, she developed sepsis, a life-threatening reaction to an infection, and spent three days in intensive care, struggling to survive.

Zurawski told Stateline in a phone interview that “hundreds” of people have reached out to her via social media to share similar stories and offer support. After the hearing last month, Zurawski said, she heard from “tons and tons and tons of people … just an outpouring of support, people wanting to get involved, wanting to help.”

Other plaintiffs told similar stories at the hearing. Taylor Edwards, also from Austin, said she learned when she was 17 weeks pregnant that her daughter had a fatal condition called encephalocele, a protrusion of the brain through an opening in the skull, and would die at or before birth. She had to leave Texas to get an abortion.

Lauren Hall, who lives near Dallas, discovered that her unborn child had anencephaly, a serious birth defect that prevents the fetus from developing parts of the brain and skull. Hall’s obstetrician refused to perform an abortion and was afraid to refer her to an abortion provider in another state. Hall eventually got an abortion at a clinic near Seattle.

Studies conducted by abortion rights university research groups suggest that abortion bans are dissuading doctors in many states from providing care they would otherwise provide.

It’s an incredibly important lawsuit and it has implications not only in Texas but in other states that have denied people the right to safe abortion health care.

– Former Texas Democratic state Sen. Wendy Davis

A total of 50 anonymous surveys from health care providers in states with abortion restrictions detailed “cases of care that deviated from the usual standard due to new laws restricting abortion,” according to a study jointly conducted by the Texas Policy Evaluation Project at the University of Texas at Austin and Advancing New Standards in Reproductive Health at the University of California, San Francisco.

“In several cases, patients experienced preventable complications … because clinicians reported their ‘hands were tied,’ making it impossible for them to provide treatment sooner,” according to the study.

But anti-abortion rights advocates, including some physicians, dispute the contention that Texas’ medical exception is too vague to give doctors the confidence to perform necessary procedures. The language of the exception, they say, clearly gives doctors the leeway to use their medical judgment and to intervene in an emergency.

They say they have sympathy for the plaintiffs but support the state’s contention that it would be inappropriate for Mangrum or any other judge to rewrite the abortion ban exception, since that would usurp a legislative function.

“They’re trying to have the judiciary write the law, which is not appropriate,” said Dr. Ingrid Skop, a San Antonio OB-GYN who testified for the state at last month’s hearing. “The current state law clearly allows a doctor to use his reasonable medical judgment to determine when to intervene in a medical emergency to protect a woman’s life.”

“There’s not a problem with the way the law is worded,” she said. “The problem is that the doctors have become confused, and they become frightened. In many cases, they have not been given guidance by medical societies or by their hospitals, and they often have been slow in offering interventions.”

Joe Pojman, founder and executive director of the Texas Alliance for Life, one of the state’s leading anti-abortion rights groups, also defended the medical exception. “The law is already clear,” he said. “Judges are supposed to interpret the law, not rewrite the law.”

The suit names the state of Texas, the Texas Medical Board and Board Executive Director Stephen Brint Carlton as defendants. Attorney General Ken Paxton, a Republican, is also a defendant, though he is currently suspended pending a state Senate trial on impeachment charges alleging bribery and other wrongdoing.

Lawyers for the attorney general’s office, who could not be reached for comment, are asking the court to dismiss the suit. In a rebuttal petition, they accuse the plaintiffs of staging “splashy news conferences and media tours” to get a favorable court ruling “after failing to convince the Legislature to adopt their preferred version of the medical exception.”

A proposed court order by the plaintiffs asks the court to give physicians discretion to use “good faith judgment” in providing abortion care to someone with unsafe pregnancy complications or instances in which a fetus is unlikely to survive the pregnancy or live after birth.

But attorneys for the state say the plaintiffs’ proposed exception “would, by design, swallow the rule,” permitting abortions “for pregnant females with medical conditions ranging from a headache to feelings of depression.”

Amanda Zurawski said she’s always supported abortion rights but that her personal experience molded her into an impassioned advocate of the right to an abortion. She and her husband, she said, “never wanted to be the poster family for this cause,” but now they’re in the fight wholeheartedly.

“I’d rather be at home with my newborn right now. That’s the life that I was envisioning. I would rather be on maternity leave with my daughter, not having to fight this fight,” she said.

“But, you know, I think it’s really been empowering for me. And it’s actually been quite healing to have a cause and a purpose to put behind our loss and our grief.”

This story was originally published by Stateline, which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: [email protected]. Follow Stateline on Facebook and Twitter.

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David Montgomery
David Montgomery

David Montgomery is a Stateline correspondent based in Austin, Texas, where he covers state government and politics.