Amanda Zurawski was 17 weeks pregnant with her first child when her doctor gave her a gut-wrenching diagnosis: her cervix was prematurely dilated. A miscarriage was certain. Doctors in Austin denied her an abortion because the fetus still had a heartbeat and sent her home, advising her to stay close to the hospital due to the risk to her health. She developed an infection throughout her body and spent three days in an intensive care unit. Though she survived, the infection scarred one of her fallopian tubes so badly that she’s had to turn to in vitro fertilization.
On Friday, May 31, the Texas Supreme Court ruled that the doctors who denied Zurawski an abortion because they feared civil penalties or criminal prosecution under Texas’ strict abortion ban were “simply wrong in that legal assessment.” For 19 other women who joined the suit, the justices had the same sort of answer. Doctors and hospitals are merely confused about what the law says. Surely, then, the court would at least clarify the law and underline the supposed exceptions that lawmakers claim are already in place?
Wrong. The state’s highest civil court declined to provide answers for the 20 women and two doctors who asked the court to clarify the emergency exceptions to Texas’ abortion ban. The court’s justices were unanimous in their apparent shock and awe that doctors can’t make sense of the exceptions as written.
Instead, the court argued that state lawmakers have actually demonstrated an “unmistakable commitment to protecting the lives of pregnant women” who experience life-threatening complications. The state law, they contend, is perfectly clear. Doctors simply have to use “reasonable medical judgment,” and perform an abortion when they see fit.
Using Zurawski as a harrowing example, the court wrote: “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.”
Never mind the fact that these physicians risk felony prosecution or losing their medical license if they judge incorrectly.
None of the three branches of state government are keen to take responsibility for a law that is putting doctors at risk and their patients in danger. Gov. Greg Abbott and the Republican-controlled Legislature have not adequately amended it. The courts are stuck in an endless tug-of-war interpreting the law, with some lower district courts attempting to provide pregnant women temporary relief, only for those injunctions to be swatted down by the state Supreme Court. Meanwhile, Attorney General Ken Paxton continues to weaponize the statute for political gain, gleefully threatening doctors with prosecution if they overstep the law’s hazy boundaries.
The ruling also has a far more far-reaching consequence, effectively turning the highly complex nature of medical care and human biology into one where doctors must use “objectivity” to assess whether a woman has a life-threatening pregnancy. The law, the court wrote, “demands that medical facts support the need for an abortion.”
Of course, doctors frequently disagree with each other, even when looking at the same scans and test results. Justice Jane Bland, writing on behalf of the court, argued that “reasonable medical judgment” does not mean “that every doctor would reach the same conclusion.” Yet, we’ve already seen how those disagreements impact abortion decisions in Texas. When Kate Cox, a Dallas resident, sued the state last year begging for an abortion after receiving a fatal fetal diagnosis, Paxton’s attorneys pointed to a deposition from an obstetrician-gynecologist who disagreed with Cox’s doctor that the diagnosis qualified for an abortion exception. The Supreme Court ultimately sided with the state, ruling that Cox’s condition did not qualify for an abortion.
That’s cold comfort to doctors risking their medical licenses and prison time. Which physician will step up first to test Bland’s words? The one who doesn’t have a mortgage payment or children to put through college or a long list of established clients depending on him or her.
The Texas Supreme Court’s rulings leave the onus on the Texas Medical Board to provide guidance as perhaps the last lifeline left for pregnant women seeking emergency abortions. As we’ve written, the board’s initial proposed guidance failed to give physicians the protection some were asking for, including a clear, but not limited, list of specific medical conditions that would warrant an exemption to the abortion ban. Instead, their proposal has been widely pilloried, particularly for adding language requiring doctors to provide ample documentation of literature they use to decide whether an abortion is necessary. Even state Supreme Court Justice Brett Busby, in a concurring opinion, chided the medical board’s proposal as a regulation that “does nothing more than restate the relevant statutes.”
The Legislature and the Texas Supreme Court are the ones who twisted the medical board in this Gordian knot. At this point, it appears the only way to untie it is with the sword of a decisive vote by an electorate fed up enough to throw out the leaders who falsely claim to be pro-life while endangering mothers’ lives and their ability to give birth in the future.
Houston Chronicle
