The Texas attorney general’s office urged the state Supreme Court to lift a temporary hold on the state’s abortion law, arguing that the Democratic state judge exceeded her authority by wiping out virtually all limits on abortion access.
The high court heard oral arguments Tuesday in the state’s challenge to Travis County District Judge Jessica Mangrum’s Aug. 4 temporary order allowing doctors to terminate pregnancies that pose a risk to the woman’s “life and/or health” based on their “good faith judgment.”
That standard is significantly looser than the state’s post-Roe law, which prohibits abortions except to save the mother’s life or prevent the “substantial impairment of major bodily function” based on the provider’s “reasonable medical judgment.”
Texas Assistant Attorney General Beth Klusmann said the state legislature drew a line on abortion access, but that the court opted to “essentially eliminate the line so that there really will never be a circumstance in which a woman is unable to obtain an abortion.”
“The trial court overstepped its constitutional bounds when it rewrote and expanded the medical-emergency exceptions, and then concluded that the expansion was constitutionally required,” said Ms. Klusmann at the hearing.
Defending the lower-court order was Molly Duane, attorney for the Center for Reproductive Rights, which represents 20 Texas women whom the center said were “denied abortions despite dangerous pregnancy complications, some of whom almost died.”
Ms. Duane cited the example of Amanda Zurawski of Austin, who experienced preterm pre-labor rupture of her membranes, or PPROM, at 18 weeks gestation.
“Ms. Zurawski became septic while waiting to be sick enough to receive abortion care, and she had multiple surgeries to reconstruct her uterus,” said Ms. Duane. “Three days in the ICU, and now her fertility is compromised. Only two of her fallopian tubes remain operable.”
Justice Brett Busby asked why her case didn’t fall under the abortion law’s exception.
Ms. Duane said that she should have, but that “the problem is physicians are terrified to rely on the exception.”
Certainly the penalties for violations are stiff.
Medical providers who break the law could face felony charges and penalties including loss of their medical licenses and up to 99 years in prison, as well as civil penalties of no less than $100,000.
Justice Debra Lehrmann asked Ms. Klusmann: “Do you acknowledge that that puts medical professionals in a really bad situation?”
Ms. Klusmann responded that the exception was broad enough to protect doctors.
Ms. Duane took issue with the state’s challenge to the plaintiffs’ standing, asking if it meant that the pregnant woman “needs to have blood or amniotic fluid dripping down their leg before they could come to court.”
There were also questions about whether the women should instead be suing their doctors for malpractice for refusing to perform necessary abortions under the “reasonable medical judgment” standard, but Ms. Duane said they didn’t want to target their medical providers.
Ms. Klusmann countered that if “a woman is bleeding or has amniotic fluid running down her legs, then the problem is not with the law. That is with the doctors.”
“I mean, that woman would clearly qualify for the medical-emergency exception,” she said. “If she has to come to court to make that happen, that is not the state’s fault.”
Since Dobbs, 24 states have put limits on abortion access, but every state law includes a medical-emergency exception to save the life of the mother.
Katie Daniel, Susan B. Anthony Pro-Life America state policy director, said afterward that the “lie sown by the abortion industry that women cannot receive lifesaving care not only deceives voters, it endangers pregnant women.”
