In Case of Emergency, Don’t Call Texas: Breaking Down the Medical Exception to Texas’s Abortion Ban

by Megan Vangilder, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Imagine a man is shot in the leg and rushed to the hospital. When he gets there, the doctors tell him that his injuries, while severe, are not yet “life-threatening.” Rather than treat this man now, they send him home and tell him to come back when he is bleeding out, on the verge of death. It is clear that this man’s injuries are already severe, he risks the loss of his leg—and potentially his life—but the doctors tell him there is nothing they can do. He waits to return until he has lost so much blood that he is in and out of consciousness and doctors are forced to amputate his leg. He ultimately survives, but without one of his legs his life will never be the same.

While this hypothetical may sound preposterous, this is lived experience of women across the state of Texas.¹ With just a few small alterations, the facts above reflect Amanda Zurawski’s story.² When Ms. Zurawski was eighteen weeks pregnant, she began to miscarry.³ Despite the fact that she had a high risk of infection, her life was not yet in danger and doctors could still detect a fetal heartbeat.⁴ Ms. Zurawski’s doctors sent her home, and she only returned after she had become septic, at which point they were forced to perform an abortion.⁵ This delay caused not only severe mental and emotional distress, but the loss of one of her fallopian tubes.⁶

No intelligent person would believe that it makes sense for doctors to refuse to treat a gunshot victim, so why are lawmakers and judges comfortable with denying similarly life-saving care to Ms. Zurawski? This is the question pregnant people, physicians, and advocates have begun to ask as restrictive abortion legislation has swept across the United States since the Supreme Court decided Dobbs v. Jackson Women’s Health in 2022.

This article argues that the Texas Supreme Court should clarify the emergency medical exception to the state’s abortion ban to alleviate the stress and fears of physicians and pregnant persons throughout the state. Part II briefly describes the national landscape regarding abortion, legislation within the state of Texas, and two prominent cases involving Texas women and physicians challenging the emergency medical exception to the state’s abortion ban. Part III explains how the current medical exception is dangerous for both women and their physicians and argues that the Texas Supreme Court should grant the relief requested by plaintiffs in Zurwaski v. Texas. Finally, Part IV offers a brief conclusion.

II. Background

In 2022 the United States Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Org., overruling the landmark decision Roe v. Wade.⁷ In holding that the right to abortion is not “fundamental” under the Fourteenth Amendment’s Due Process Clause, the Court’s decision allowed states to decide whether or not to allow abortion care to continue.⁸ Since 2022, states across the country have taken a variety of approaches in reaction to the Dobbs decision.⁹ Many state legislatures, such as those in Texas and Kentucky, preemptively passed so-called “trigger bans”¹⁰ which went into effect immediately or very shortly after the Dobbs decision was announced.¹¹ Other states, including Ohio and Michigan, have put abortion on the ballot, allowing citizens to vote to amend their constitutions regarding the legality of the procedure.¹² So far each of these citizen-driven actions has come down on the side of abortion rights.¹³ However, in states like Texas, where the government continues to exercise its control over women, abortion access is severely restricted, leading pregnant people to challenge the laws or leave the state for the care they need.

A. Reproductive Care in Texas

Texas is the largest state in the country to ban nearly all abortions and has been at the center of the national debate concerning access to abortion for the past several years.¹⁴ For example, Texas gained national attention in 2021 when it passed Senate Bill 8.¹⁵ This law banned abortions after six weeks of pregnancy and included a “bounty hunter” provision which authorized citizen enforcement and included monetary rewards for those who reported on clinicians they believed had violated the law.¹⁶ In 2022, Texas was one of the first states to ban abortion after the Dobbs decision due to the state’s trigger law, which had been passed nearly a year prior.¹⁷ The most recent controversy, however, involves the emergency medical exception to the statewide ban as women and physicians across the state claim they are unable to provide or receive necessary abortion care in the face of life-threatening pregnancy complications.¹⁸

1. Legislation

Texas has three state laws banning abortion. First, Senate Bill 8, the so-called “vigilante” bill, which prohibits abortion after six weeks of pregnancy and includes the “bounty hunter” provision.¹⁹ The “bounty hunter” provision refers to the bill’s enforcement mechanism.²⁰ Rather than state enforcement, Senate Bill 8 is enforceable by private citizens.²¹ Any citizen may file a civil suit against an individual they believe has violated the law, regardless of the citizen’s connection to the alleged violator.²² Additionally, if the citizen claimants are successful in court, they are entitled to an award of at least $10,000.²³ This enforcement mechanism was created with the requirements of Roe v. Wade in mind, as eliminating state enforcement allowed Texas to evade Constitutional challenges to the bill.²⁴ The unique structure of the bill—along with the harsh six week cut off—sparked outcry from women, physicians, and attorneys across not only Texas, but the entire country.²⁵

Second, Texas also has a pre-Roe criminal ban which courts have now determined to have been implicitly repealed since the trigger law took effect.²⁶ Finally, the trigger law, which went into force on August 25, 2022, completely bans abortions within the state.²⁷ This law also contains an emergency medical exception which stipulates that doctors may provide abortion care if, based on their “reasonable medical judgment,” the mother has a condition that puts her at risk of “death or poses a serious risk of substantial impairment of a major bodily function.”²⁸ The law does not provide any guidance on which conditions pose a serious risk of substantial impairment or define what it considers a major bodily function.²⁹ However, the legislation was amended in early 2023 to clarify that two specific conditions, premature rupture of membranes³⁰ and ectopic pregnancy,³¹ both qualify under the exception.³²

Despite this amendment, doctors are hesitant to provide any care resembling an abortion.³³ Obstetrician-Gynecologists in Texas have said that there is “widespread confusion among the medical community,” that prevents them from doing their jobs.³⁴ Physicians’ concern also comes from the fact that if they are found to have violated the law, they face a prison sentence of up to ninety-nine years, a fine of up to $100,000, and the revocation of their state medical license.³⁵

2. Active Cases

In the wake of the uncertainty surrounding the medical exception, two prominent cases have been making their way through the courts in the state. The first, Zurwaski v. State of Texas, brought by twenty women and two physicians, seeks clarity to the emergency medical exception.³⁶ The physician plaintiffs say the Texas law prevents them from fulfilling their ethical obligations and from providing proper medical care to their patients.³⁷ The twenty other plaintiffs are all women who were denied abortions despite serious pregnancy complications.³⁸ The second case, Cox v. State, involves a Texas woman who sought judicial preclearance to receive abortion care due to a diagnosis that threatened not only her current pregnancy, but also her life and future fertility.³⁹ Both cases emphasize the dangers of the exception’s vague language and the fear of both pregnant people and physicians alike when it comes to treating pregnancy-related life-threatening medical conditions within the state of Texas.⁴⁰

Zurwaski v. State was filed in March 2023 and originally had five named plaintiffs: Amanda Zurwaski, Lauren Miller, Lauren Hall, Anna Zargarian, and Ashley Brandt.⁴¹ Eight more women joined the case in May 2023, and seven additional women along with two Obstetrician-Gynecologists joined in November 2023.⁴² Filed by the Center for Reproductive Rights,⁴³ the suit claims that the Texas abortion bans should be read to ensure that physicians have broad discretion to determine the proper course of treatment for patients who present with emergent medical conditions.⁴⁴ The suit asks the court to rule that abortion be permitted in cases in which a pregnant person has a physical condition or pregnancy complication that makes it dangerous to remain pregnant, that is exacerbated by or untreatable during pregnancy, or that renders the fetus non-viable.⁴⁵

In addition to seeking clarity to the medical exception, the suit also requested a temporary injunction⁴⁶ to block Texas’s abortion bans while the case proceeded.⁴⁷ On August 4, 2023, a district court judge granted the plaintiff’s request and blocked the state’s abortion bans as applied to dangerous pregnancy complications.⁴⁸ The court also clarified that doctors may use their medical judgement to determine when to provide abortion care.⁴⁹ Further, the court denied the state’s motion to dismiss, and found Senate Bill 8 unconstitutional.⁵⁰ However, the state responded by appealing to the Texas Supreme Court, which blocked the lower court’s ruling from taking effect.⁵¹ The Texas Supreme Court heard oral argument on November 28, 2023, but has not yet issued a ruling.⁵²

Unlike Zurwaski, Cox v. State, also filed by the Center for Reproductive Rights, involves a single plaintiff—Kate Cox. Ms. Cox, a 31-year-old mother of two was pregnant with her third child when she was diagnosed with Trisomy 18, a condition which rendered her pregnancy non-viable and threatened both her health and future fertility due to her medical history.⁵³ The Center for Reproductive Rights, on behalf of Ms. Cox, sought a temporary restraining order from a district court judge to prevent Texas from enforcing its abortion ban in her case.⁵⁴ The court granted the order, however, the Texas Attorney General, Ken Paxton, sent letters to three hospitals where Ms. Cox’s doctor had medical privileges and threatened felony prosecution and civil penalties if the hospitals allowed Ms. Cox to perform the procedure.⁵⁵ Attorney General Paxton stated that Ms. Cox did not meet the criteria for the medical exception and that an abortion in her case would violate state law.⁵⁶ Ultimately the Texas Supreme Court overruled the district court’s and Ms. Cox went out of state to receive treatment.⁵⁷

III. Discussion

The emergency medical exception has stripped physicians of their authority, putting them in a position where they must choose between saving their patients or saving themselves. Further, pregnant persons must now cope with the fact that ordinarily treatable pregnancy complications may now be fatal.⁵⁸ The language of the exception is vague, leaving many important questions unanswered: What does “life-threatening” mean? Which conditions pose a risk of death and at what point? What constitutes “reasonable medical judgment,” and how can a physician prove that they were using such judgment? Scholars such as Professor Sonia Suter note these open questions are likely intentional, rather than mere oversights.⁵⁹ With regard to the exception, Suter stated, “The vagueness may not be a bug, but a feature…look at the numbers—abortions are not happening. If that’s your primary goal, then you want it to be an exception that looks good on paper but that actually chills the provision of abortions.”⁶⁰ Molly Duane, a senior staff attorney at the Center for Reproductive Rights, has echoed Professor Suter’s sentiments, arguing that Ms. Cox’s case provides particularly glaring evidence that exceptions to abortion bans do not work.⁶¹

Despite this criticism, many support the ban and argue that the exception cannot describe every possible medical emergency.⁶² The Texas Supreme Court claims that it has clarified as much as it can without going into the territory of making medical judgement.⁶³ However, the court’s rulings do not explain the confusion among medical practitioners throughout the state. If doctors had the discretion to choose the course of treatment they believe is best for their patients, at the time they feel it is appropriate, Ms. Cox and the women in the Zurwaski case would not have faced such devastating outcomes to their health and fertility.⁶⁴ Further, if the judiciary wanted to stay out of the medical arena, the Attorney General would not be intervening to declare that certain women’s conditions do or do not qualify under the exception or to threaten physicians with legal action.⁶⁵ Doctors are not free to exercise their judgement or to provide necessary care to their pregnant patients if they are facing threats of jail, monetary fines, and loss of licensure.⁶⁶

If the Texas Supreme Court wants to protect the life and health of mothers, it must clarify the exception’s language, as the women in Zurwaski are requesting.⁶⁷ If the exception is to be functional, and not merely empty words as Professor Suter suggests, doctors need to know exactly when they can provide abortion care to pregnant people facing fetal complications.⁶⁸ Whether that be an affirmative list of all conditions which qualify, or a clear grant of discretionary authority to physicians, doctors and women alike need to know what actions are allowed to protect the life and future fertility of women throughout the state. A vague exception which rarely—if ever—permits abortion care will continue to put women across the state at risk.⁶⁹

IV. Conclusion

Women across the state of Texas deserve the same level of unquestioned care as any other emergent patient—and that includes the provision of necessary abortion care. Similarly, physicians need the authority to provide whatever treatment they deem necessary for their patients without fear of imprisonment. The Texas Supreme Court and Attorney General Paxton must accept that abortion is still a necessary form of healthcare—one that not only saves pregnant people, but also protects their ability to carry children in the future. If Texas cares about life, it should care about the health and safety of pregnant people throughout the state who want their babies and face devastating consequences when their doctors are too afraid to provide the care they need. The Texas Supreme Court needs to clarify the exception and allow physicians to use their discretion when patients present with life-threatening pregnancy complications. The plaintiffs in Zurwaski are not asking the court to repeal the state’s abortion ban, they are simply asking for protection when abortion is medically necessary.⁷⁰

Cover Photo by Stephen Andrews on Unsplash

Megan VanGilder

Megan is a 3L at the University of Cincinnati College of Law. Originally from Louisville, Kentucky, she is a graduate of the University of Kentucky with a Bachelor's degree in Political Science and Integrated Strategic Communication. At the College of Law, she has served as a policy fellow with the Ohio Innocence Project and is currently a Notes and Comments Editor for the Law Review. She is also a member of the Law Review’s Diversity, Equity, and Inclusion committee.

References

1
See The Plaintiffs and Their Stories; Zurawski v. State of Texas, Ctr. for Reprod. Rts. (Nov. 14, 2023), https://reproductiverights.org/zurawski-v-texas-plaintiffs-stories-remarks/.
2
Id.; see also Eleanor Klibanoff, Women Denied Abortions Sue Texas to Clarify Exceptions to the Laws, The Tex. Trib. (Mar. 7, 2023, 3:00 PM), https://www.texastribune.org/2023/03/07/texas-abortion-lawsuit/.
3
Id.
4
Id.
5
The Plaintiffs and Their Stories; Zurawski v. State of Texas, supra note 1.
6
The loss of a fallopian tube can make it more difficult to conceive a child, and In Vitro Fertilization (IFV) may be necessary. Salpingectomy, Cleveland Clinic. (Oct. 9, 2021), https://my.clevelandclinic.org/health/treatments/21879-salpingectomy.
7
See generally Dobbs v. Jackson Women’s Health Org., 597 U.S. 216 (2022).
8
Id. It should be noted that in many states abortion was already severely restricted, and several had “trigger bans” on the books in anticipation of this kind of decision.
9
Tracking Abortion Bans Across the Country, N.Y. Times. (Jan. 8, 2024), https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.
10
Brendan Pierson, Texas Top Court Weighs Scope of Abortion Ban Exception for Risky Pregnancies, Reuters (Nov. 28, 2023, 2:41 PM), https://www.reuters.com/legal/texas-top-court-hear-arguments-over-abortions-medical-emergencies-2023-11-28/; see alsoAfter Roe Fell: Abortion Laws by State, Ctr. For Reprod. Rts., https://reproductiverights.org/maps/abortion-laws-by-state/. Trigger bans are abortion bans passed in the years after Roe v. Wade was decided with the intent of banning abortion entirely if the Supreme Court were to overturn Roe.
11
Amanda Terkel & Jiachuan Wu, Abortion Rights Have Won in Every Election Since Roe v. Wade Was Overturned, NBC News (Aug. 9, 2023), https://www.nbcnews.com/politics/elections/abortion-rights-won-every-election-roe-v-wade-overturned-rcna99031#.
12
Id.
13
Id.
14
Pierson, supra note 10; see also Abortion in Texas, Ctr. For Reprod. Rts., https://reproductiverights.org/case/texas-abortion-ban-us-supreme-court/abortion-in-texas/.
15
Neelam Bohra, Texas Law Banning Abortion as Early as Six Weeks Goes Into Effect as the U.S. Supreme Court Takes No Action, Tx. Trib. (Aug. 31, 2021), https://www.texastribune.org/2021/08/31/texas-abortion-law-supreme-court/; see also Texas Abortion Ban Emergency Exception Case: Zurawski v. Texas, Ctr. For Reprod. Rts., https://reproductiverights.org/case/zurawski-v-texas-abortion-emergency-exceptions/zurawski-v-texas/; Tex. Health & Safety Code Ann. § 171.204.
16
Id.
17
See Pierson, supra note 10; see also Tex. Health & Safety Code Ann. §§ 170A.001-007.
18
See id.; see also María Méndez, How New Regulations Impact Abortion and Birth Control Access in Texas, Tex. Trib. (Oct. 11, 2023, 5:00 AM) https://www.texastribune.org/2023/10/11/texas-abortion-law-birth-control-what-you-need-to-know.
19
See Bohra, supra note 15; see alsoHealth & Safety § 171.204, supra note 15.
20
Id.; See Texas Senate Bill 8, ACOG, https://www.acog.org/community/districts-and-sections/district-xi/advocacy/texas-sb8.
21
ACOG, supra note 20; see also Bohra, supra note 15; see also Health & Safety § 171.204.
22
ACOG, supra note 20; see also Health & Safety § 171.204, supra note 15.
23
Id.
24
Bohra, supra note 15.
25
Id.
26
After Roe Fell: Abortion Laws by State: Texas, Ctr. For Reprod. Rts., https://reproductiverights.org/maps/state/texas/; see also McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004) (holding that Texas’s former Penal Code Articles 1191, 1192, 1193, 1194, and 1196 had been repealed by implication).
27
Id.; see also Pierson, supra note 10; Health & Safety §§ 170A.001-007, supra note 17.
28
Pierson, supra note 10; see also Méndez, supra note 18; Tex. Health & Safety Code Ann. § 170A.002(b).
29
Pierson, supra note 10; see also Méndez, supra note 18; Tex. Health & Safety Code Ann. § 170A.002(b).
30
Méndez, supra note 18 (defining premature rupture of membranes as occuring when amniotic fluid breaks before a fetus could survive outside of the uterus).
31
Id. (defining ectopic pregnancies as occuring when a fertilized egg grows outside of the uterus and becomes unviable).
32
Pierson, supra note 10; see also Méndez, supra note 18.
33
See Lauren Mascarenhas, Texas Abortion Law’s Wording is Causing Dangerous Confusion Over Emergency Medical Exceptions, Critics Say, CNN (Dec. 15, 2023, 7:06 AM), https://www.cnn.com/2023/12/15/us/texas-abortion-ban-emergency-medical-exception/index.html#.
34
Klibanoff, supra note 2.
35
Texas Abortion Ban Emergency Exception Case: Zurawski v. Texas, supra note 15.
36
Id.; Klibanoff, supra note 2.
37
Texas Abortion Ban Emergency Exception Case: Zurwaski v. Texas, The Case in Depth, Ctr. for Reprod. Rts., https://reproductiverights.org/case/zurawski-v-texas-abortion-emergency-exceptions/zurawski-v-texas/.
38
Id.
39
Texas Emergency Abortion Case, Cox v. Texas: The Case in Depth, Ctr. for Reprod. Rts., https://reproductiverights.org/case/cox-v-texas/cox-v-texas-case-in-depth/.
40
See id.; see also, Texas Abortion Ban Emergency Exception Case: Zurwaski v. Texas, The Case in Depth, supra note 37; Klibanoff, supra note 2.
41
The Plaintiffs and Their Stories; Zurawski v. State of Texas, supra note 1.
42
Id.
43
The Center for Reproductive Rights is a human rights organization that seeks to ensure legal protection for reproductive rights across the globe. About us, Ctr. for Reprod. Rts., https://reproductiverights.org/about-us/.
44
Klibanoff, supra note 2; see also Texas Abortion Ban Emergency Exception Case: Zurwaski v. Texas, The Case in Depth, supra note 37.
45
Klibanoff, supra note 2.
46
A temporary injunction is a court order that requires a party to do or stop doing a certain action. These orders are typically issued early in a case to prevent a defendant from carrying out harmful actions while the case proceeds. Injunction, Cornell L. Sch. Legal Info. Inst. , https://www.law.cornell.edu/wex/injunction.
47
Texas Abortion Ban Emergency Exception Case: Zurwaski v. Texas, The Case in Depth, supra note 37.
48
Id.
49
Id.
50
Id.
51
Id.
52
Id.
53
Associated Press, Texas Supreme Court Pauses Ruling that Allowed Pregnant Woman to Have an Abortion, NPR (Dec. 9, 2023, 12:00 AM); Texas Emergency Abortion Case, Cox v. Texas: The Case in Depth, supra note 39.
54
Id.
55
Mascarenhas, supra note 33.
56
Associated Press, supra note 53.
57
Mascarenhas, supra note 33; see also Associated Press, supra note 53; Texas Emergency Abortion Case, Cox v. Texas: The Case in Depth, supra note 39.
58
See Pierson, supra note 10; see also Klibanoff, supra note 2; see also Associated Press, supra note 53.
59
Mascarenhas, supra note 33.
60
Id.
61
Id.
62
Id.
63
Id.
64
See generally The Plaintiffs and Their Stories; Zurawski v. State of Texas, supra note 1 (describing the stories of women in Texas who were denied abortion care as a result of the Texas law).
65
See Associated Press, supra note 53.
66
See Texas Abortion Ban Emergency Exception Case: Zurawski v. Texas, supra note 15.
67
See Texas Abortion Ban Emergency Exception Case: Zurwaski v. Texas, The Case in Depth, supra note 37.
68
See Mascarenhas, supra note 33; see also Texas Abortion Ban Emergency Exception Case:Zurwaski v. Texas, The Case in Depth, supra note 37.
69
See Mascarenhas, supra note 33; see alsoKlibanoff, supra note 2; Pierson, supra note 10.
70
See Klibanoff, supra note 2; see also Texas Abortion Ban Emergency Exception Case: Zurwaski v. Texas, The Case in Depth, supra note 37.