The Supreme Court of Texas heard arguments Tuesday in a landmark case that could impact how the state’s abortion laws apply to medically complicated pregnancies.
In August, state District Judge Jessica Mangrum ruled that the near-total abortion ban cannot be enforced in cases involving complicated pregnancies, including lethal fetal diagnoses. The state immediately appealed that ruling, putting it on hold.
Texas law allows abortions only when it is necessary to save the life of the pregnant patient. But this lawsuit, filed by the Center for Reproductive Rights in March, claims that doctors are unsure when the medical exception applies, resulting in delayed or denied care.
“No one knows what [the exception] means and the state won’t tell us,” Molly Duane, senior attorney for the Center for Reproductive Rights, told the justices Tuesday.
The state argues the judge went too far in her injunction by reading exceptions into the law beyond what the Legislature intended.
“What the legislature has done is chosen to value unborn life and prohibit abortion in all circumstances, unless that life is going to conflict with the life of the mother,” said assistant attorney general Beth Klusmann. “The legislature has set the bar high, but there is nothing unconstitutional in their decision to do so.”
Justice Jimmy Blacklock questioned Duane on the “capaciousness” of the injunction, asking whether this might allow abortions as a result of common pregnancy complications like high blood pressure.
“It seems to me, looking at the case you presented and the injunction that was granted, that this very well could open the door far more widely than you’re acknowledging,” he said.
Duane said the injunction would only apply to emergent medical conditions that could become critical or life-threatening if not treated. But she acknowledged that Mangrum’s ruling is “doing more work than normal,” because “legislators don’t usually write laws that people who are regulated by those laws simply do not understand.”
At the center of Tuesday’s hearing was the question of standing, or whether the plaintiffs have the legal right to bring this suit. The state has argued that because these women are not actively seeking abortions at the moment, clarifying the law would not address their claims.
Justice Jeff Boyd seemed aghast at that argument.
“Your position is that, in order to seek the kind of clarity that these plaintiffs are seeking, you have to have a woman who is pregnant, who has some health condition that she believes places her life at risk or impairment to a major bodily function, but her doctor says, ‘I don’t think it does,’” he said. “And she has to then sue the doctor, and maybe the attorney general, at that point, and then she would have standing and sovereign immunity would be waived?”
Klusmann said that wasn’t the only situation that would generate standing, but “you would at least then know that the law is the problem, and not the doctor.”
“Some of these women appear to have fallen within these exceptions but their doctors still said no,” she said. “That’s not the fault of the law.”
“That’s what gives rise to the need for clarity,” Boyd said, exasperated.
Several of the justices asked Duane why the Center for Reproductive Rights did not bring a wider suit, challenging the law on the grounds that it is too vague to be properly enforced.
“Generally, a vagueness challenge is a facial challenge to the statute, to take down the entire statute,” Duane said after the hearing. “So if that’s what the court wants us to do, we’re happy to do it.”
Several of the Texas Supreme Court’s Republican justices appeared hesitant on Tuesday to clarify an emergency exception in the state’s abortion ban despite claims from nearly two dozen women that they were forced to continue medically dangerous pregnancies.
“Our job is to decide cases, not to elaborate and expand laws in order to make them easier to understand or enforce,” Justice Brett Busby said.
Molly Duane, a Center for Reproductive Rights lawyer, said the state’s interpretation of standing would require that a woman “needs to have blood or amniotic fluid dripping down their leg before they can come to court.”
The plaintiffs include “patients who are trying to get pregnant now and pregnancy complications are likely to occur,” she said.
Justice Evan Young pushed back, comparing doctors to police officers who have to work out how to comply with the state constitution in use-of-force cases.
“Here we have a statement in the statute that describes the risk of death or the serious risk to a substantial bodily function — how is that so much more nebulous than the entire body of constitutional law that law enforcement has to apply?” Young said.
Duane said the situations are not similar at all, as police officers have qualified immunity against being sued.
Klusmann said the problem is with doctors, not the law. The ban was not written with the intention of discriminating based on sex, the state has said in filings, and abortion care “is not ordinary medical treatment” because “it involves potential life.”
“We’re just trying to identify when it’s appropriate to end the life of an unborn child, and the Legislature has set the bar high,” Klusmann said. “But there’s nothing unconstitutional about their decision to do so.”
Busby noted the cases might have made more sense as medical negligence suits against the doctors.
Duane said her clients don’t blame their doctors for acting within the constraints of the law. Many physicians and hospitals have feared immediately intervening in emergency cases even when there is a clear danger, given the state’s stiff penalties for anyone who violates the ban.
After the arguments on Tuesday, Duane told reporters she was “optimistic that the court heard us, heard them (the plaintiffs) and saw them.” But if the justices fail to intervene, Texans “will be in the exact same spot that we are today” where physicians remain constrained and patients suffer the consequences.
“While I was sitting in the courtroom, my telephone rang,” Duane said. “It was a call from another patient. This is real. It is happening every single day, and it is not going to stop until someone with accountability in this state can put a stop to it.”
Either that or we finally get a federal law that protects abortion rights. Gonna need to have some positive outcomes in 2024 for that. Might be nice to center some campaigns on that possibility. The Trib story suggests we can expect a ruling by June. CBS News and ABC News have more.