Texas Supreme Court upholds law outlawing abortion even in so-called ‘hard cases’

Pro-life supporters take part in a “Rally for Life” march and celebration outside the Texas State Capitol on January 27, 2024, in Austin, Texas. / Credit: Photo by SUZANNE CORDEIRO/AFP via Getty Images

CNA Staff, May 31, 2024 / 18:15 pm (CNA).

The Texas Supreme Court has upheld the state’s law outlawing almost all abortions, turning aside a challenge based on severe pregnancy complications. 

“The history of abortion regulation in Texas demonstrates the Legislature’s unmistakable commitment to protecting the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life,” the high court said in a 9-0 ruling. 

State Supreme Court justices in Texas are elected. All nine are Republicans. 

Abortion supporters criticized the ruling, which puts a spotlight on so-called “hard cases.” 

“As women across the country are finding out, exceptions to abortion bans are illusory and it is dangerous to be pregnant in any state that bans abortion,” Center for Reproductive Rights president and chief executive officer Nancy Northrup said in a written statement. 

Texas Right to Life president John Seago praised the state supreme court “for upholding our Pro-Life laws.” 

“Over the last decade, the Texas Legislature worked diligently to ensure that our definitions of ‘abortion’ and ‘medical emergency’ are sufficient to protect children threatened by abortion, as well as mothers who may face tragic circumstances, like ectopic pregnancies, miscarriages, and medical emergencies,” Seago said in a written statement. 

He added:  “To clear confusion among doctors and hospitals, we support the ongoing efforts to fully educate medical professionals around the state on the exact meaning of Texas law and best practices in complex circumstances.” 

Hard cases 

The state Supreme Court acknowledged that the legal challenge to the state’s anti-abortion law centered on “situations filled with immense personal heartbreak.” 

The lead plaintiff in the case, Amanda Zurawski, testified at the trial court level last year that she sustained a preterm pre-labor rupture of membranes that doctors said made a miscarriage inevitable and put her at risk of infection, but that doctors refused to remove the non-viable baby because the baby’s heart was still beating. After Zurawski went into septic shock, doctors induced the delivery of a stillborn girl. 

“Scarring from the infection was so severe that she required surgical reconstruction of her uterus and lost the use of one of her fallopian tubes,” the court said in its decision. 

The state legislature passed a bill in May 2023 adding preterm pre-labor rupture of membranes and ectopic pregnancy as explicit exceptions to the state’s abortion ban. 

Another woman, Ashley Brandt, testified that when she was 12 weeks pregnant with twins, one of the babies was diagnosed with acrania, a fatal condition in which the skull fails to fuse. When the baby’s heart stopped, doctors told her, it would likely trigger labor, causing the healthy twin to die, as well. She traveled out of state to abort the stricken baby and gave birth to the healthy one, the court decision states. 

Another woman, Samantha Casiano, lamented having to carry to term her baby girl who was diagnosed 20 weeks into the pregnancy with anencephaly, a condition in which the baby lacks a major portion of the brain and therefore is unable to live more than a short time after birth. The baby died four hours after delivery, the decision says. 

Piecemeal challenges 

Texas outlawed abortion after the U.S. Supreme Court overturned Roe v. Wade in June 2022, sending abortion law back to legislatures and state referendums. Since then, abortion supporters have tried to chip away at the law. 

Last year, The Center for Reproductive Rights, which supports abortion, filed a lawsuit challenging the law on behalf of several women who experienced severe pregnancy complications, and three doctors. 

The state’s Human Life Protection Act allows an abortion if doctors using “reasonable medical judgment” determine that a pregnant woman “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” 

In August 2023, a Travis County district court judge in Austin, the state capital, issued a short-lived injunction that sought to offer doctors a “good faith judgment” exception. This would allow abortions in cases where a pregnancy complication “poses a risk of infection or otherwise makes continuing a pregnancy unsafe for the pregnant person,” where “a condition exacerbated by pregnancy … cannot be effectively treated during pregnancy,” and where “a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.” 

The state’s abortion statute does not contain such exceptions. 

During oral arguments in November 2023, a state supreme court justice asked a lawyer from the state attorney general’s office defending the state’s anti-abortion law if the statute’s requirement that doctors use “reasonable medical judgment” to determine if an abortion is necessary doesn’t put doctors in a tough situation. 

The lawyer said no. 

“They are allowed to use reasonable medical judgment, which is presumably the judgment they use when treating a patient in any given circumstance. And so the option, I guess, facing the legislature — you could either draw a line and allow them to use their reasonable medical judgment, or you can do what the trial court did and essentially eliminate the line so that there really will never be a circumstance in which a woman is unable to obtain an abortion,” said Assistant State Attorney General Beth Klusmann. 

“And so, there are always going to be harder calls at the edge of that line, but the only other option is to eliminate the line entirely,” she said. 

The case, which was decided Friday, May 31, is known as State of Texas v. Zurawski.