SCOTUS

A couple of interesting articles to read to enhance our understanding of the lawsuit filed by five women who claim that Texas’ anti-abortion laws have harmed them.

From Vox:

In theory, even after the Supreme Court’s anti-abortion decision in Dobbs v. Jackson Women’s Health Organization (2022), medically necessary abortions remain legal in all 50 states. Texas law, for example, is supposed to permit abortions when a patient is “at risk of death” or if they face “a serious risk of substantial impairment of a major bodily function.”

There’s also a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires most hospitals to perform emergency abortions to prevent “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.” (Though, notably, Texas’s GOP attorney general, Ken Paxton, convinced a Trump-appointed judge to issue an opinion claiming that this federal abortion protection does not exist.)

But in practice, the new lawsuit claims, Texas physicians are often too terrified to perform likely legal abortions because the consequences of performing an abortion that the courts later deem to be illegal are catastrophic. The maximum penalty for performing an illegal abortion in Texas is life in prison.

This lawsuit, known as Zurawski v. Texas, asks the state courts to clarify when medically necessary abortions are legal within the state so that doctors can know when they can treat their patients without risking a prison sentence or a lawsuit.

[…]

These plaintiffs argue in their complaint that one reason why Texas doctors are unwilling to perform abortions, even when delaying an abortion risks a patient’s life, is that Texas law is a hodgepodge of multiple abortion bans, each with inconsistent provisions permitting abortions when a patient’s life or health is in danger, and none of which use medical terminology that doctors can rely upon to know exactly what they are and are not permitted to do.

Texas’s primary criminal ban on abortions, for example, provides that abortions are permitted when “in the exercise of reasonable medical judgment” a physician determines that their patient “has a life-threatening physical condition” or faces a “serious risk of substantial impairment of a major bodily function” that relates to their pregnancy.

Meanwhile, a separate statute, enacted before Roe v. Wade was decided in 1973, also bans abortions. And it does so with a much narrower exception for abortions performed “for the purpose of saving the life of the mother.” But it’s unclear whether, now that the Supreme Court has overturned Roe, this law remains in effect or not. While a federal appeals court determined in 2004 that this pre-Roe ban on abortions was “repealed by implication,” Attorney General Paxton claimed that the law is still enforceable after Roe was overruled.

And then there’s SB 8, the state’s bounty hunter law, which permits private citizens to sue doctors who perform abortions after the sixth week of pregnancy. That statute uses completely different language to describe when an abortion is allowed, permitting abortions “if a physician believes a medical emergency exists that prevents compliance” with SB 8.

Most of these statutes, moreover, were enacted when Roe was still good law. So there are few, if any, court decisions interpreting them, explaining how the multiple conflicting exceptions to the multiple different abortion bans interact with each other, or resolving disputes about which laws are actually in effect.

Typically, lawyers rely on past court decisions to predict how courts are likely to apply a statute to their clients. But, without many (or any) such decisions to rely upon, lawyers advising doctors and hospitals cannot provide reliable advice to those clients. And, again, if a doctor and their attorneys guess wrong about whether a particular abortion is legal, that doctor could wind up spending the rest of their life behind bars.

See here, here, and here for more on EMTALA, which is likely to end up before SCOTUS eventually. Author Ian Millhiser speculates about the possibility that the Zurawski case could clarify state law, but he has his doubts. Which leads us to this Slate story.

Make no mistake about it: Texas’ law has unique problems. The state’s conservative lawmakers kept the pre-Roe criminal ban passed in 1925; to circumvent Roe v. Wade, they passed S.B. 8. In 2021, after Donald Trump reshaped the Supreme Court, they passed a trigger law. Inconsistencies crept in, and the result is a mess that frightens doctors away from addressing real emergencies.

But the problems with Texas’ exceptions are broader, and they tell a story about why abortion exceptions as a general matter fail to protect patients. From the time of previous eras’ abortion bans, exceptions were tailored more to prevent free access to the procedure than to address real problems in pregnancy, and state abortion laws today are no exception.

When abortion reform efforts got underway in the 1960s, the American Law Institute proposed what amounted to a menu of exceptions to criminal abortion bans for patients seen to be innocent enough to deserve abortion (the ALI included exceptions for rape and incest, fetal abnormality, and certain health threats). Pushback from anti-abortion lawyers was immediate. They argued not just that abortion was immoral and unconstitutional, but also that the exceptions were an open invitation for fraud. Decades before Todd Akin’s comments about “legitimate rape,” they argued that pregnancy after sexual assault was all but impossible—and that rape exceptions were an excuse for promiscuous women. They framed health exceptions as universally unnecessary, arguing that virtually no pregnancies were life-threatening.

After Roe, anti-abortion suspicion of patients invoking exceptions only deepened. They pointed to Roe’s companion case, Doe v. Bolton, that defined health to include physical and mental well-being. For abortion opponents, that looked like an exception that could swallow the rule: wouldn’t anyone forced to remain pregnant suffer mental distress?

So after Congress passed the Hyde Amendment, a ban on Medicaid reimbursement for abortion in 1976, anti-abortion legislators worked to make it harder for patients to invoke exceptions or to eliminate them altogether. Sexual assault victims, for example, had to report to law enforcement within a certain time frame, and some Hyde proponents voted to eliminate all rape and incest exceptions.

Anti-abortion activists began using a similar strategy in model laws designed to chip away at Roe. For example, in the Pennsylvania law considered by the Supreme Court in Planned Parenthood of Pennsylvania v. Casey, anti-abortion groups proposed a medical emergency exception only to save a patient’s life or “create serious risk of substantial and irreversible impairment of major bodily function.”

The similarity to Texas’ law is no accident. For the anti-abortion movement, the narrow and ambiguous language adopted by Pennsylvania in the 1980s, and by Texas more recently, reflects the same beliefs: The most important issue is preventing abortion, and exceptions serve primarily to discourage what Republicans see as unjustified procedures. But the justifications of many plaintiffs are all too obvious. One patient diagnosed with “preterm prelabor rupture of membranes” was denied care, developed sepsis, nearly died, and suffered lasting impacts to her future fertility; another, pregnant with twins, was forced to travel out of state to maximize the chances of survival for herself and one of the twins when the second received a devastating diagnosis. These stories will almost certainly continue in Texas and states like it.

In other words, to borrow from a bit of wisdom that has been applied to the Trump regime, the lack of clarity is the point. We don’t know what the courts will make of this, but we can expect that Ken Paxton and the rest of the forced birth machinery will do everything in their power to keep threatening everyone who might try to get an abortion for any reason. You know what I’m going to say here, so say it with me: Nothing will change until we start winning more elections.

Well, this ought to be interesting.

Five women who say they were denied abortions despite grave risks to their lives or their fetuses sued the state of Texas on Monday, apparently the first time that pregnant women themselves have taken legal action against the bans that have shut down access to abortion across the country since the U.S. Supreme Court overturned Roe v. Wademe.

The women — two visibly pregnant — plan to tell their stories on the steps of the Texas Capitol on Tuesday. Their often harrowing experiences will put faces to what their 91-page complaint calls “catastrophic harms” to women since the court’s decision in June, which eliminated the constitutional right to abortion after five decades.

Their accounts may resonate with public opinion, which generally supports legalized abortion and does so overwhelmingly when a pregnancy endangers the woman’s life. The lawsuit, backed by the Center for Reproductive Rights, comes as the country grapples with the fallout from overturning Roe, with abortion banned in at least 13 states.

Texas, like most states with bans, allows exceptions when a physician determines there is risk of “substantial” harm to the mother, or in cases of rape or incest, or if the fetus has a fatal diagnosis. Yet the potential for prison sentences of up to 99 years, $100,000 fines and the loss of medical licenses has scared doctors into not providing abortions even in cases where the law would seem to allow them.

The suit asks the court to affirm that physicians can make exceptions, and to clarify under what conditions. But its greater power may be in appealing to public opinion on abortion. Similar lawsuits over exceptions, focusing public attention on stories of women who were denied abortions despite medical dangers, helped build momentum for legalized abortion in heavily Catholic Ireland and in South America.

The women bringing the suit contradict stereotypes about who receives abortions and why. Married, and some with children already, the women rejoiced at their pregnancies, only to discover that their fetuses had no chance of survival — two had no skulls, and two others were threatening the lives of their twins.

Though they faced the risk of hemorrhage or life-threatening infection from carrying those fetuses, the women were told they could not have abortions, the suit says. Some doctors refused even to suggest the option, or to forward medical records to another provider.

The women found themselves furtively crossing state borders to seek medical treatment outside Texas, worried that family and neighbors might report them to state authorities. In some cases, the women became so ill that they were hospitalized. One plaintiff, Amanda Zurawski, was told she was not yet sick enough to receive an abortion, then twice became septic, and was left with so much scar tissue that one of her fallopian tubes is permanently closed.

“You don’t think you’re somebody who’s going to need an abortion, let alone an abortion to save my life,” Zurawski, 35, said. “If anybody reads my story, I don’t care where they are on the political spectrum, very few people would agree there is anything pro-life about this.”

[…]

Unlike other suits from abortion rights groups, the Texas suit does not seek to overturn the state bans on abortion. Instead, it asks the court to confirm that Texas law allows physicians to offer abortion if, in their good-faith judgment, the procedure is necessary because the woman has a “physical emergent medical condition” that cannot be treated during pregnancy or that makes continuing the pregnancy unsafe, or the fetus has a condition “where the pregnancy is unlikely to result in the birth of a living child with sustained life.”

The women are not suing the medical providers who denied abortions, and the providers are not named in the suit; in most cases, the women say the providers were doing the best they could, but had their hands tied.

The Texas Medical Association has appealed to state authorities to offer more clarity on what exceptions are allowed. The author of one of the bans wrote to the state medical board in August, concerned that hospitals “may be wrongfully prohibiting or seriously delaying physicians from providing medically appropriate and possibly lifesaving services to patients who have various pregnancy complications.” He underscored that under the exceptions, hospitals had to protect the “mother’s life and major bodily function.”

The lawsuit says the five plaintiffs “represent only the tip of the iceberg,” and that “millions” of people across the country have been “denied dignified treatment as equal human beings.”

As the story notes, it is a reprint of a New York Times article. I don’t know who has what stereotypes about who gets abortions, but none of this surprises me. I’ve been saying all along that it’s just a matter of time before some nice white married lady, like one of these plaintiffs, dies from being unable to get timely medical care as a result of Texas’ anti-abortion law. One of these plaintiffs spent three days in intensive care with sepsis because abortion care was denied to her. No one should have to go through that.

I’m wondering what the state’s defense will be. My best guess is that they will claim that the law is clear as written and that if these women were unlucky enough to have incompetent doctors that’s their problem. The Republicans really don’t want there to be any clear lines about when an abortion is allowed, because the lack of clarity serves their purpose of forcing women to give birth.

Also, these women are going to get smeared, doxxed, threatened, harassed, and so on. Can’t be having them speaking out about their experiences, that’s just not allowed.

I’m not going to be foolish enough to make any predictions here. I will say that if these plaintiffs win, it will have only a marginal effect, in that their situations are relatively rare. The total number of abortions that would be allowed if they win will be minimal – basically, this is a “life/health of the mother” exception. Rape and incest are still not acceptable reasons for an abortion, and of course elective abortions are still criminalized. It would be significant in that the risk of death or serious health consequences would be mitigated, and that’s a big deal, but it will be limited. For now, that’s the best we can do. Axios, NPR, the Trib, Daily Kos, The 19th, the Current, and Slate have more.