Molly Duane, a lawyer representing 20 women and two doctors, appeared before the all-Republican Texas Supreme Court. She argued that the state’s strict abortion laws have denied women lifesaving care. Hence, they seek to clarify what qualifies as a medical exception. “We are just seeking clarification on what the law aims to do,” said Duane.
The case, Zurawski v. Texas, was named after its first plaintiff, Amanda Zurawski. Zurawski and her husband were devastated when, at 17 weeks of pregnancy, they learned their unborn baby would not survive.
After a premature miscarriage began, her doctors said she would need to wait to go into labor on her own, and she did. However, she nearly died of sepsis. The petition states that one of her fallopian tubes remains permanently closed as a result of the damage.
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Similarly, two years ago, one of the plaintiffs, Kaitlyn Kash, received a devastating diagnosis about her unborn child. The unborn baby had severe skeletal dysplasia, a genetic disorder that affects the development of bones, joints, and cartilage. Typically, the condition is not detectable at 13 weeks, but her doctor said this case was so severe that it is evident on an ultrasound.
According to Kash’s doctor, the baby’s likelihood of surviving was low. Even if it made it to birth, it was likely to suffocate shortly afterward. In addition, the baby could also suffer broken bones while in Kash’s womb, among other severe complications. Had it been two months earlier, Kash’s doctor could have given her the option to terminate the pregnancy in Texas.
However, Senate Bill 8, a 2021 law that banned abortions around the sixth week of gestation, before most women know they are pregnant, had just gone into effect. Hence, Kash’s doctor recommended she seek “a second opinion, but outside Texas.”
Consequently, Kash and her husband bought tickets to Kansas, hoping to spare their unborn child the painful outcomes the doctor described. “My baby was going to die regardless,” Kash said. “I just chose when.”
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Similarly, the Senate bill, one of the most restrictive state abortion laws, has denied the other plaintiffs abortions despite severe and dangerous pregnancy complications. Hence, the 20 women suing Texas are demanding that the state clarify medical exceptions to its near-total abortion ban.
Kash and other plaintiffs in the case allege that the state’s vague language and “non-medical terminology” in its laws leave doctors unable or unwilling to administer abortion care. Consequently, they force patients to seek treatment out of state or wait until after their lives are in danger.
The Center for Reproductive Rights lawsuit focuses on the medical exceptions to two Texas laws passed from 2021 to 2023. In September 2021, SB 8 went into effect in the state, banning abortion once they detect the baby’s cardiac activity. In December 2021, a state district judge ruled that the law violated the Texas Constitution.
However, it remained in effect while several court cases reviewed its constitutionality. Then, after the U.S. Supreme Court overturned Roe v. Wade in June 2022, the state’s “trigger law” (House Bill 1280) went into effect, prohibiting abortion from the moment of fertilization.
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The only exceptions are in cases in which a pregnant patient risks death or “substantial impairment of major bodily function.” Also, physicians who violate the laws face severe penalties, including fines of more than $100,000. In addition, they face first-degree felony charges, punishable with up to life in prison.
The hearing has drawn involvement from stakeholders in Texas and the rest of the country. A coalition of attorneys general for 20 states and Washington, D.C., filed an amicus brief in support of the plaintiffs on November 13, writing that Texans denied emergency abortion care often travel to their states, leading to health risks for the patients and “additional pressures” on their states’ “already overwhelmed hospital systems.”
The outcome of the case remains unknown. However, the Center for Reproductive Rights attorneys say they won’t give up the fight.
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