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March 8th, 2023:

Five women harmed by Texas’ anti-abortion law file a lawsuit over it

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.

Bills filed to stop the TEA takeover of HISD

Feels too late to me, but it can’t hurt to try.

State senators have filed the first bill to soften the law that triggers school district takeovers.

State Sens. Carol Alvarado, Borris Miles and John Whitmire filed Senate Bill 1662 in response to the threat of a possible takeover of Houston Independent School District by the Texas Education Agency. State Rep/ Alma Allen has filed companion legislation in the Texas House.

The bill modifies the current state law to provide TEA additional tools to address low performance ratings such as hearings before the commissioner, academic achievement plans, appointing agency to monitor, but not replace trustees, among other items. Under SB 1662, the TEA commissioner will have broader discretion to choose an alternative that does not require a school closure or the appointment of a board of managers.

Given Phyllis Wheatley High School improvement to a C and the district’s overall B rating, the TEA’s reason for initiating a takeover bid in 2019 is no longer valid, Alvarado said.

“It is unjust and unwarranted for TEA to move forward with a takeover,” Alvarado said in a statement. “S.B. 1662 offers the agency options to work collaboratively with HISD to address any current deficiencies instead of subjecting nearly 200,000 students and 27,000 teachers and employees to a takeover.”

Other leaders also made promises to get answers. NAACP president Bishop James Dixon said he plans to call a meeting with TEA commissioner Mike Morath. U.S. Rep. Sheila Jackson Lee said she intends to bring the issue to the Biden administration and the U.S. Department of Education.

HISD Trustee Patricia Allen said the trustees, administrators and other HISD representatives will let their grievances be known when they go to the legislator March 20.

“We have been in this fight before we even came in office,” Trustee Patricia Allen said at a community meeting at North Main Church of God in Christ in the Heights. “The board has been working since we were elected. We have a lone star governors coach, a TEA program — we have tried our best, hired the best superintendent.”

See here for the previous update, and here for my discussion of things that could be done to stave this off. As I said then, even if these bills have the support to pass and are allowed to come to the floor, it would be at least weeks and more likely months before they would take effect. Thus, unless Mike Morath is agreeable to wait it out, the legislative process is just too damn slow. I appreciate the effort, but let’s not put our hope in something that can’t work unless Morath and the TEA are willing to let it work.

Now having said that, it’s Tuesday afternoon and the TEA hasn’t taken over HISD yet, so maybe Morath is waiting until something happens to take him off the hook. Stranger things and all that. I would encourage Trustee Allen and Bishop Dixon and whoever else can get a meeting with Morath to ask him nicely if he’d at least talk to these legislators before he does anything. As with the bills themselves, it can’t hurt. Getting the feds involved has a chance of achieving something, and it could be done quickly, but it would also be super antagonistic, so let’s try the “ask very nicely for a delay” option first, since it surely won’t work if we do it the other way around. Throw everything at the wall, but do so in the proper order.

Oh, and why wasn’t a bill like this filed in the last Lege? Well, maybe there was one – I’d have to look, I don’t know offhand. That would have solved the timing issue, but only if it was allowed to pass, as with this one, and we didn’t know we’d need it because of the then-ongoing litigation. I think it’s at best a tossup whether these bills get even a committee hearing now, and I’d say that was never in the cards in 2021. That’s easy to say, and if we give credit for trying now we do have to ask what we tried then. We’re in this situation now regardless, so let’s not waste too much energy on what could have been. What it is now is what matters.

I-45 project is back on

Though it will still be several years before there is any real construction.

Nearly two years to the day that federal officials paused TxDOT’s plans for rebuilding Interstate 45 and downtown Houston’s freeway system, national and state highway leaders have come to an agreement that will let the rebuild proceed, but with several concessions aimed at addressing the project’s impacts on low-income and minority neighborhoods.

The Federal Highway Administration and Texas Department of Transportation announced Tuesday they had reached an agreement, similar to those TxDOT reached with Harris County and Houston in December, outlining commitments related to the planned $9.7 billion rebuild of I-45 from downtown Houston north to Beltway 8.

The agreement immediately lifts the federal pause placed on the project on March 8, 2021, and resolves the audit conducted by federal officials related to TxDOT’s adherence to federal environmental rules.

“This agreement moves forward an important project, responds to community concerns, and improves (I-45) in ways that will make a real difference in people’s lives. Through this agreement the community will have a greater voice in the design and throughout the project’s life cycle,” said Federal Highway Administrator Shailen Bhatt, in a statement.

[…]

Unlike the agreements with the city and county, the deal reached with federal officials holds TxDOT to both oversight and enforcement of many of the specifics. As part of the agreement, TxDOT will:

  • conduct twice-annual public meetings during development and construction, expected to take more than a decade, to update the community on the progress and plans for detours during construction.
  • add another $3 million to the $27 million TxDOT already committed to help the Houston Housing Authority develop new affordable housing opportunities, mirroring the promise TxDOT previously made to the city.
  • commit $1.5 million to create parks and trails, in particular to replace park space near the Kelly Village public housing complex.
  • support the creation of the Emancipation National Historic Trail, a proposed federally-sponsored historical route chronicling the journey of freed slaves from Galveston to Houston, including trail links and planning for historical displays along the footprint of I-45.
  • coordinate detours near two Houston Independent School District schools to take students’ bicycle and pedestrian routes into account during construction

Longtime skeptics of the project, however, said they fear the promises of partnership will erode as TxDOT proceeds.

“They are doing what federal agencies do, using the term enforcement when historically we have seen no follow-through,” said Joetta Stevenson, president of Houston’s Super-neighborhood 55 and one of those who had accused TxDOT of skirting federal civil rights laws, prompting the review by FHWA. “Trust has been broken for generations, and by signing off on the choices of the state, only enforcing after harm has been done, they continue a painful legacy. So far, I see no tangible changes that don’t rely on TxDOT’s good faith participation.”

In a statement the group formed to oppose the project, Stop TxDOT I-45, said “Houston deserves a project that prioritizes safety, centers the lived experience of those most impacted by the project, actually relieves traffic, and moves us toward a more equitable future. We will not stop fighting for our city and our lives.”

Air Alliance Houston and LINKHouston, which have advocated for sweeping changes to the plans, said they were reviewing the details but initially indicated the details alone leave the project short of expectations.

“While we hoped the federal government would maximize its leverage over TxDOT to push for a more equitable project, we are encouraged to see that the Federal Highway Administration will hold TxDOT accountable in ways that the City of Houston and Harris County memorandums of understanding could not,” LINKHouston Executive Director Gabe Cazares said.

Parts of the agreement commit TxDOT to elements that are less specific, for now, but eventually could have sweeping effects on the communities impacted by the freeway. TxDOT has agreed to re-evaluate drainage studies for the freeway rebuild to reflect ATLAS-14, the national rainfall analysis released by the National Oceanic and Atmospheric Administration in 2018 that places more of Houston in areas at flood risk.  TxDOT already had agreed to do this as part of its agreements with the city and county. The change potentially could mean more flood control, such as detention ponds or channels for neighborhoods near the freeway.

See here and here for the background on the city/county deal with TxDOT. If the skeptics and opponents remain unconvinced, then there continues to be reason to not want this to happen. If it mostly comes down to how close the federal oversight and enforcement of the deal will be, then at least we know where to concentrate future efforts. A statement from County Attorney Christian Menefee is beneath the fold, a statement from Commissioner Adrian Garcia is here, a Chron story recapping the saga so far is here, and the Trib and Campos have more.

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