Texas’ all-Republican Supreme Court appeared divided Tuesday as it considered whether judges or the state legislature should decide the scope of any exemption to the state’s near-total ban on abortions.
A packed courtroom in Austin watched the high court grapple with that question Tuesday. The case has major implications in a pro-life state firmly controlled by conservative decision-makers who quickly enacted a near-total abortion ban after the US Supreme Court struck down federal abortion protections.
No matter how the court rules, it will remain illegal in Texas to perform an abortion except for when a pregnancy places the woman at risk of death or poses a serious risk of substantial impairment.
Reacting to lawyer oral arguments in an appeal from the state, Justice Jeff Boyd seemed to side with nearly two dozen women challenging the state’s law, saying he’s “struggling to understand” a competing argument that they lack standing in the case. Justice Brett Busby signaled opposition to the women, questioning why they sued the state and not their physicians who refused to provide an abortion.
“It sounds like medical negligence to me,” Busby said.
Exceptions Vague
Critics say the exception is vague and, when confronted, state lawmakers refused to issue follow-up clarity in the most recent legislative session other than in two instances: when a patient’s water breaks too early and for ectopic pregnancies.
Those seeking answers are 22 women who sued the state, saying they suffered serious physical harm but were denied an abortion, even when it was certain the child wouldn’t survive. The lead plaintiff, Amanda Zurawski, landed in intensive care while waiting to get sick enough for an abortion. A septic infection left one of her fallopian tubes permanently closed, compromising her ability to get pregnant again.
Joining the women in the lawsuit are two doctors who say that without clearer guidance they can’t know when it’s legally permissible for them to perform a termination.
“No one knows what it means and the state won’t tell us,” Molly Duane, an attorney from the Center for Reproductive Rights who represented the women, told the court.
Tuesday’s arguments followed a win for the women at the trial court in July. Following two days of testimony, a state district judge issued an injunction against the abortion ban as it related to the plaintiffs and denied the state’s jurisdictional challenge. The judge, Austin Democrat Jessica Mangrum, issued an opinion allowing abortions based on a doctor’s “good faith judgment.” She outlined conditions to include pregnancies where the fetus is unlikely to survive after birth and those that make pregnancy unsafe.
Almost immediately, the state appealed the ruling to the Supreme Court, blocking its effect for the time being.
In court Tuesday, Duane acknowledged that Mangrum’s added guidance was “unusual” because the language in the opinion “is doing more work than is normal.”
Closely Watched Case
The magnitude of the proceedings was reflected in the avalanche of guidance the Supreme Court received from outside parties. Just this month, 13 groups filed amicus briefs, the first coming from half of the Texas legislature, all of them elected Republicans, who argued that any change to the abortion ban “is one for the legislature, not the judiciary, to make.”
Those advocating for broader medical exceptions included 20 Democratic controlled states, led by California and New York; Bumble, the online dating and networking site; and a coalition of women’s athlete groups that included the WNBA players labor union.
Texas’ abortion ban went into effect last year after the US Supreme Court canceled a woman’s federal right to terminate a pregnancy after nearly 50 years, leaving the matter in the hands of individual states. Until then, Texas operated under a lesser abortion ban, allowing for a termination only up to the detection of a heartbeat, which is about six weeks into a pregnancy.
Rehashing the state’s position from the July trial, Beth Klusmann, a lawyer for the Texas attorney general’s office, argued the law is clear as it relates to the exceptions and that any confusion has been introduced by physicians needlessly concerned about criminal prosecution, fines, or losing their medical license.
Klusmann acknowledged there are “going to be tough calls” but that doctors who exercise reasonable judgment in performing a termination “should be fine under this law.”
Appearing skeptical of the argument the women in the case should be suing their doctors instead, Justice Jane Bland suggested it would be “impractical” for a woman facing imminent harm to seek a court’s guidance on whether a doctor could provide an abortion.
Klussman agreed, but added, “We don’t bend the rules for practicality.”
Justice John Devine wasn’t present for Tuesday’s arguments.
A decision is expected by the end of June 2024.
The case is Texas v. Zurawski, Tex., No. 23-0629, 11/28/23.