I don’t know if the Supreme Court intended to bury the news of this stinker of a ruling on a Friday, but boy howdy if that was their intent did they ever pick the right Friday to do it on.
The Texas Supreme Court has unanimously rejected the most significant challenge to Texas’ new abortion laws yet, ruling Friday that the medical exceptions in the law were broad enough to withstand constitutional challenge.
The case, Zurawski v. Texas, started with five women arguing the state’s near-total abortion laws stopped them from getting medical care for their complicated pregnancies. In the year plus it took to move through the court system, the case has grown to include 20 women and two doctors.
In August, a Travis County judge issued a temporary injunction that allowed Texans with complicated pregnancies to get an abortion if their doctor made a “good faith judgment” that it was necessary. The Texas Office of the Attorney General appealed.
The Texas Supreme Court overturned that ruling Friday, saying it “departed from the law as written without constitutional justification.” While the opinion was unanimous, Justice Brett Busby issued a concurring opinion that left the door open to a broader challenge to the law.
Zurawski v. Texas was a pioneering case in post-Roe America, the first challenge to a state’s abortion bans on behalf of women with complicated pregnancies. At least three other states have followed suit, and it led to a related case, in which Kate Cox, an actively pregnant woman in Dallas sued to be allowed to terminate her pregnancy.
The Texas Supreme Court rejected Cox’s plea in December, which many saw as a likely foreshadow of how the court might rule in Zurawski v. Texas. On Friday, those suspicions were confirmed when the court offered a ruling very similar in nature to the Cox case.
“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 wrote.
[…]
For the first time since before Roe v. Wade, a judge intervened to allow a competent adult woman to terminate her pregnancy.
“The idea that Ms. Cox wants desperately to be a parent, and this law might actually cause her to lose that ability is shocking and would be a genuine miscarriage of justice,” state District Judge Maya Guerra Gamble.
Paxton appealed that ruling to the Texas Supreme Court, which put it on hold. He also sent letters to Houston area hospitals threatening them with legal action if they allowed Dr. Damla Karsan, Cox’s OB/GYN, to perform an abortion at their facility.
While the court deliberated, Cox’s condition deteriorated to the point that she needed to travel out-of-state to get an abortion, her lawyers said.
The court ultimately rejected Cox’s request for an abortion, ruling that while “any parents would be devastated to learn” of a fetal diagnosis like this, “some difficulties in pregnancy…even serious ones, do not pose the heightened risks to the mother the exception encompasses.”
The court did call on the Texas Medical Board to issue guidance to help doctors better understand when they can perform an abortion in the eyes of the law. That guidance, which has not yet been finalized, has been criticized for offering little reassurance and, in some cases, confusing the issue further.
In Friday’s ruling, the court ruled that only one of the 22 plaintiffs in the Zurawski suit had standing to sue — Karsan, the Houston OB/GYN who had agreed to perform Cox’s abortion.
“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,” the justices wrote. “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 trial court ruled in the injunction that a doctor should be allowed to perform an abortion when they deemed it necessary in their “good faith judgment.” Friday’s ruling found the trial judge overstepped, and said the way the law is written — allowing abortions based on a doctor’s “reasonable medical judgment” — is clear enough.
While the Center for Reproductive Rights raised concerns in the lawsuit that a doctor would have to defend their reasonable judgment against a panel of other doctors who might have decided differently, the court said it was actually the opposite — to bring a case against a doctor, the state would first have to “prove that no reasonable physician would have concluded” that the abortion was the right call.
In the ruling, the justices acknowledged the tragedy of these cases, but agreed with the state that the laws are clear — and it was doctors who were misinterpreting them.
“With a diagnosis based on reasonable medical judgment and the woman’s informed consent, a physician can provide an abortion confident that the law permits it,” they ruled. “Ms. Zurawski’s agonizing wait to be ill ‘enough’ for induction, her development of sepsis, and her permanent physical injury are not the results the law commands.”
The trial court also ruled that Texans should be allowed to terminate their pregnancies if the doctor has determined the fetus would not survive after birth. The supreme court rejected that argument.
“As painful as such circumstances are, that the law does not authorize abortions for diagnosed fetal conditions absent a life-threatening complication to the mother does not render it unconstitutional,” they wrote.
See here, here, and here for the basic outline of the Zurawski case; here, here, here, and here for the Cox case. The SCOTx opinion is here, the concurring opinion by Justice Lehrmann is here and by Justice Busby is here.
I’m going to keep this simple: Fucking cowards, every last one of them. They’re perfectly happy to not only let Ken Paxton freely threaten doctors and hospitals, they’re blaming the doctors for feeling threatened. They do not care at all about the women who are being harmed – it’s just not a part of their calculus. If you’re not fully invested in throwing these bums out, three at a time, you’re doing it wrong. But not just them – every Congressional and legislative election should be about this as well. And not just about the Cox and Zurawski cases, either – there are so many other examples of the law gone crazy post-Dobbs to talk about. Everyone from convicted felon Donald Trump and Ted Cruz on down needs to feel the heat. And we’re the ones that have to generate it. That’s what the next five months are about. The 19th and the Chron have more.
