Texas Supreme Court keeps abortion bans in place, allows lawsuit to continue

(AUSTIN, Texas.) — The Texas Supreme Court issued a decision Friday allowing a lawsuit challenging the state’s multiple abortion bans to continue, but the court refused to block the bans as the legal challenge continues.

The lawsuit was filed last year by women who say their lives were put in danger due to the state’s bans. Initially starting with five plaintiffs, the lawsuit now includes more than 20 women who say their care was impacted by the bans.

Texas has several abortion laws in effect prohibiting nearly all abortions, except in medical emergencies, which the laws do not define. Women filing the lawsuit said they were denied care despite having dangerous pregnancy complications.

While the lawsuit will be allowed to continue in a state trial court, the Supreme Court did not allow a temporary injunction on the bans while litigation continues. Lower court Judge Jessica Mangrum had granted the injunction against the bans as they relate to medical emergencies and fatal fetal diagnoses and denied the state’s request to throw out the case before the case was heard by the state Supreme Court.

In the court opinion issued Friday, justices pushed back against the claims made by women in the suit.

“Texas law permits a life-saving abortion. Under the Human Life Protection Act, a physician may perform an abortion if, exercising reasonable medical judgment, the physician determines that a woman has a life-threatening physical condition that places her at risk of death or serious physical impairment unless an abortion is performed,” Texas Supreme Court Justice Jane Bland wrote in the court’s majority opinion.

“The law permits a physician to intervene to address a woman’s life-threatening physical condition before death or serious physical impairment are imminent. Because the trial court’s injunction departed from the law as written without constitutional justification, we vacate its order,” the majority opinion said.

The Supreme Court also found that the trial court had overstepped by permitting abortions “for any ‘unsafe’ pregnancy.”

“All pregnancies carry risks. The law limits permitted abortions to address life-threatening conditions “aggravated by, caused by, or arising from a pregnancy.” While merely being pregnant may increase a mother’s risk of death or injury, pregnancy itself is not a ‘life-threatening physical condition’ under the law,” the court wrote.

“In differentiating ordinary risks attendant to pregnancy — those that can be treated short of an abortion — from conditions for which the law permits an abortion, the Legislature drew the line at ‘life-threatening physical condition.’ Because the trial court’s order opens the door to permit abortion to address any pregnancy risk, it is not a faithful interpretation of the law. A trial court has no discretion to incorrectly interpret the law in ordering a temporary injunction,” the court wrote.

The court also wrote that the trial court’s block of the bans as it relates to medical emergencies “departed from the law as written without constitutional justification,” the majority opinion said.

“Texas law permits a life-saving abortion. A physician cannot be fined or disciplined for performing an abortion when the physician, exercising reasonable medical judgment, concludes (1) a pregnant woman has a life-threatening physical condition, and (2) that condition poses a risk of death or serious physical impairment unless an abortion is performed,” the court wrote in its opinion.

“A physician who tells a patient, ‘Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment,” the court’s majority opinion said.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement, “This ruling does not provide any real clarity to doctors, and it is deeply offensive to the women we represent — they are completely written out of the opinion as though they don’t exist or matter. Of course women on death’s door should have the most basic right of bodily autonomy to protect their life and health.”

However, the court opinion recognized that at least some of the women filing the suit had life-threatening conditions.

“The State does not contest that at least some of these complications present life-threatening conditions for which an abortion may be indicated,” the court said.

The admission comes months after the state Supreme Court declined to allow Texas woman Kate Cox to receive an abortion for a pregnancy with severe anomaly and large risk of debilitating health complications, including loss of fertility.

In explaining why it found that one of the plaintiffs, Dr. Damla Karsan, has standing to file the lawsuit, the court cited a letter sent to Houston hospitals by the state attorney general threatening liability if they allowed Karsan to provide Cox with an abortion. Before the Supreme Court declined to let her get an abortion, a lower court judge had ruled that Karsan could provide her with an abortion in Texas.

“We conclude that the Attorney General directly threatened enforcement against Dr. Karsan in response to her stated intent to engage in what she contends is constitutionally protected activity. A state official’s letter threatening enforcement of a specific law against a plaintiff seeking relief from such enforcement is a sufficient showing of a threat of enforcement to establish standing to sue,” the court wrote in its opinion.

The lead plaintiff in the case, Amanda Zurawski, described in her testimony last year going into sepsis after doctors said they could not induce labor because her fetus still had a heartbeat.

Zurawski said she was told she had an incompetent cervix, premature dilation of her cervix and would miscarry. Her water broke later that evening but she did not miscarry until three days later, she said.

“I went from feeling physically OK to shaking uncontrollably. I was freezing cold even though it was 110 degrees out. My teeth were chattering violently. I couldn’t get a sentence out. My husband Josh asked me how I was feeling on a scale from 1 to 10. I didn’t know the difference between 1 and 10 — which one was higher,” Zurawski said.

In reacting to the ruling Friday, Zurawski said in a statement, “Every day, people in Texas are being told that they have no options. It’s sickening and wrong. Our Courts should acknowledge all of our suffering and vindicate our fundamental rights to reproductive autonomy. We should not need to beg elected officials for our right to control our own bodies.”

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