Algosensey|Texas Supreme Court rejects challenge brought by 20 women denied abortions, upholds ban

The AlgosenseyTexas Supreme Court on Friday morning upheld the state’s near-total abortion ban, ruling against 20 women who said they were denied medically necessary abortions and stating that  the law's exception for women facing "life-threatening conditions" is sufficiently broad.

The unanimous decision vacates an Austin state district judge’s August 2023 ruling blocking the state’s abortion bans for women facing serious pregnancy complications and finds that questions about exceptions for women carrying fatally ill fetuses must be handled by the Legislature.

Filed in March 2023 by the Center for Reproductive Rights, an abortion rights advocacy organization, the lawsuit was the first patient-led legal action to be filed after the U.S. Supreme Court in July 2022 reversed Roe v. Wade, the landmark decision establishing a constitutional right to abortion. 

Authored by Justice Jane Bland, the majority opinion states the lower court overstepped its judicial authority and affirms the language in the state's post-Roe trigger ban allowing doctors to intervene when women are at risk of death.

It also upholds a narrow interpretation of the law, stating a pregnant patient must have a "life-threatening condition" before they can qualify for an abortion, regardless of whether their health is at risk. The opinion affirmed, however, that death need not be imminent.

"Under the Human Life Protection Act, a woman with a life-threatening physical condition and her physician have the legal authority to proceed with an abortion to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent," Bland wrote.

The decision directs women's concerns about the laws to state lawmakers, who do not reconvene for a legislative session until January.

"The law can be—and has been—amended to reflect policy choices on abortion," Bland wrote.

In a separate concurring opinion, Justice Deborah Lehrmann noted that the Texas Legislature "has enacted one of the most restrictive abortion bans in the country" while affirming the majority's finding.

"Whatever my personal views may be about how restrictive abortion statutes in Texas 'should' be," Lehrmann wrote, "It is the Legislature’s prerogative to make that determination."

All nine of the high court's justices are Republican; six are men and three are women.

Strikingly, the court found that only one plaintiff, Houston OB-GYN Dr. Damla Karsan, had standing to sue over the bans' enforcement — rejecting the claims of 20 patients and another OB-GYN.

In a news conference after the ruling was released, several of those patients described the decision as "a gut punch."

Plaintiff Samantha Casiano, who carried a child that was developing without a brain to term because Texas law does not allow abortion in such cases, she was "devastated" by the ruling. She also put blame on state lawmakers.

"Back in July, we testified in court for hours recounting the medical torture we went through,” Casiano said in a news release. "I don’t know how the court could hear what I went through and choose to do nothing. Texas lawmakers claim to care about protecting ‘the unborn’, but in reality they made my family suffer. ... I'm devastated that the court is allowing this cruelty to continue."

In a news conference, she spoke of watching her child suffocate after it was born. "There was no mercy for my daughter," she said.

The opinion changes little compared with the high court’s decision in the case of Kate Cox, a Dallas mother who, a doctor testified, was at risk of losing her fertility if she continued to carry a fatally ill fetus — one that her doctor said had "virtually no chance of surviving." The court in that case found Cox's doctor had not asserted with "reasonable medical judgment" that Cox had a "life-threatening condition" and overturned a lower court's authorization of the abortion. Ultimately, Cox traveled out of state to terminate her pregnancy. 

Both lawsuits brought national attention to Texas’ lack of abortion ban exceptions for fatal fetal diagnoses and contributed to a yearslong push for the Texas Medical Board to issue clearer guidelines on exceptions. 

Physicians who violate current abortion laws may face severe penalties, including first-degree felony charges, punishable with up to life in prison, and fines of more than $100,000. 

Texas Attorney General Ken Paxton celebrated the state Supreme Court ruling in a news release Friday afternoon.

“I will continue to defend the laws enacted by the Legislature and uphold the values of the people of Texas by doing everything in my power to protect mothers and babies," Paxton wrote.

More:Texas OB-GYNs slam proposed TMB abortion rules: 'Dead mothers do not lead to live babies'

'Unalienable rights'

The case is named for its first plaintiff, Austin resident Amanda Zurawski, who nearly died of sepsis after she was denied an abortion to treat a premature water break at 17 weeks pregnant. The petition states that one of her fallopian tubes remains permanently closed as a result of the damage.

Other plaintiffs in the case testified that they had been denied abortions after doctors determined their fetuses were incompatible with life, even in cases in which physicians said their health was at risk if they continued with the doomed pregnancies.

"The State does not contest that at least some of these complications present life-threatening conditions for which an abortion may be indicated," Bland wrote.

Since the lawsuit was filed, lawmakers have tweaked the Texas Health Code to give an affirmative defense to doctors who use "reasonable judgment" to treat a premature water break — the same complication that Zurawski faced.

The justices in their opinion nod to the health code update and the plaintiff who was affected by its absence, saying "the Legislature expressly permitted abortion for one of the pregnancy complications presented in this case." However, critics have noted that while the law gives doctors a defense in court, it does not protect them from being sued or prosecuted for terminating a pregnancy in this case.

"Using (legislative) power to limit and penalize abortion affects the unalienable rights of mothers and their unborn children to life and the unalienable rights of physicians and third parties to liberty from criminal confinement," Justice Brett Busby wrote in another concurring opinion. "But courts ... cannot substitute their own views of wise public policy for the words chosen by the Legislature."

In Friday's news conference, Zurawski said she and other women who have been affected by the abortion bans would continue fighting for change on behalf of women in Texas and across the country.

"This ruling is heartbreaking, but I don't think it's the end," Zurawski said. "Although the state wants to pretend that we are invisible, and wants to take away our names and our voices, let me be clear that we will not be silenced. ... This is not the last that you will be hearing from us in this fight for justice."

You can read the Court's majority opinion below.