On Tuesday, five women filed a lawsuit against Texas claiming that the state’s near-absolute abortion ban prevented doctors from terminating pregnancies that had threatened their lives. The plaintiffs represent just a fraction of the many red-state residents who’ve been denied emergency abortions since the Supreme Court overturned Roe v. Wade this past June. Their suit asks Texas courts to rule that existing state law permits emergency reproductive care—or to strike down the most lethal restrictions.
Texas has not yet responded to this complaint. But we don’t have to guess the state’s reaction, because it has already staked out a position on this exact question: Texas’ abortion bans strictly bar doctors from terminating a pregnancy until it is actively killing the patient or impairing a “major bodily function.” That is what Texas Attorney General Ken Paxton announced this summer in his successful effort to block state hospitals from providing abortions before the patient is close to death. Paxton declared in federal court that Texas law does not allow an abortion when it’s necessary to “stabilize” a patient in a downward health spiral. The procedure is legal only once a doctor becomes certain that, without it, the patient will either die or permanently lose a major bodily function (which is undefined). A doctor charged with terminating a pregnancy before this point of fatal certitude faces 99 years’ imprisonment if prosecuted and convicted.
Anti-abortion advocates have tried to blame this denial of care to pregnant patients on greedy hospitals, activist doctors, and even the media outlets that report on it. But the new lawsuit makes it clear that the responsibility falls entirely on Texas’ abortion bans. (There are three overlapping statutes.) These laws were designed to outlaw the termination of pregnancies that pose a serious—but not indisputably fatal—threat to the patient’s life. They are working as intended.
Each plaintiff’s story illustrates exactly how the state’s ban prevents doctors from following the well-establish standard of care to pregnant patients in crisis. Take Amanda Zurawski, the lead plaintiff. At nearly 18 weeks, Zurawski was diagnosed with an incompetent cervix, a condition that causes premature dilation and prolapsing membranes. That evening, her water broke, so she went to the emergency room. There was no chance her fetus could survive, but it still showed “cardiac activity,” so doctors told her they could not terminate until her health collapsed. After three painful days, she developed a high fever, a symptom of sepsis. The doctors finally agreed to terminate, deeming her life to be in true, imminent peril—but only after awaiting the hospital ethics committee’s approval.
Zurawski then spent three days in the ICU. While there, doctors discovered that the untreated infection had caused a secondary infection and massive scarring in her reproductive system, which required a procedure to remove the scar tissue. The result was that one of her fallopian tubes remains permanently closed, making a future pregnancy even more difficult.
This story, and others like it, are not the result of some liberal conspiracy to drum up opposition to abortion bans, as some conservatives claim. They are, rather, the inevitable consequence of Texas’ ban.
Some history: The anti-abortion movement has long opposed exceptions for any reason, treating health carveouts with heightened suspicion. Opponents of reproductive health care believe that women and physicians will exaggerate the threat of a pregnancy, or concoct a fake condition, in order to justify an abortion. So the anti-abortion lobby persuaded a majority of red states to adopt bans with an extraordinarily narrow exception not for a patient’s “health,” but only for her “life.”
These exceptions are also intentionally vague, failing to define key terms so that doctors are rarely certain when they can legally terminate and often err on the side of refusing an abortion. After all, if they fall on the wrong side of the line, they could face 99 years’ incarceration. (In a sense, Texas’ law is generous: Other states, like Tennessee, do not have a true exception for the patient’s life; they simply allow doctors to cite concern for the patient’s life as an affirmative defense once they’re being prosecuted.)
Paxton, the Republican Texas attorney general, has staunchly defended the extreme interpretation of Texas’ bans, with no dissent from Gov. Greg Abbott or Republican legislators. In July, Joe Biden’s administration tried to impose a baseline standard of care for pregnant patients with health crises, issuing guidance under the Emergency Medical Treatment and Active Labor Act, or EMTALA. That law requires hospitals to provide “stabilizing treatment” to anyone with an “emergency health condition,” expressly including pregnant patients. The administration said EMTALA compels hospitals to provide abortions when they are necessary to treat a condition that is “likely or certain to become emergent without stabilizing treatment.” It also claimed that, as a federal law, EMTALA preempted any Texas statutes with narrower exceptions.
Paxton swiftly filed suit to block Biden’s guidance in Texas. He shopped the case to Judge James Wesley Hendrix, a Donald Trump appointee who was certain to agree with him. In ruling for the state, Hendrix juxtaposed the EMTALA with Texas law and found that they conflicted. Texas, he explained, “limits abortions to when the medical condition is life-threatening.” EMTALA, by contrast, requires treatment for any condition that “could reasonably be expected” to put the patient’s health “in serious jeopardy.” Texas’ standard, Hendrix concluded, is much more difficult to meet: A patient must be not only in “jeopardy” but at dire risk of death without an abortion. Moreover, Hendrix identified a divergence in timing: EMTALA requires treatment for a condition that is “likely or certain” to “become emergent.” Texas law, however, permits abortion only when a patient is certain to die, or sustain irreversible and catastrophic damage to a “major bodily function,” without treatment.
Hendrix sided with Texas over the Biden administration, issuing an injunction that barred the government from enforcing EMTALA against state hospitals that do not provide emergency abortions. Paxton celebrated the victory, proclaiming: “We’re not going to allow left-wing bureaucrats in Washington to transform our hospitals and emergency rooms into walk-in abortion clinics.”
The plaintiffs in this new case want the state courts to interpret Texas law differently so that it allows for abortion when a patient’s health is in serious jeopardy—even if a doctor cannot prove (to a jury) that the patient would have died without one at the time of the abortion. They want to let patients like Zurawski obtain lifesaving care before they are actually at death’s door. Failing that, the plaintiffs want Texas courts to broaden the exception by establishing a right to emergency abortion care under the state constitution. They are likely to face staunch opposition from Paxton and the Texas GOP. (A few Republican legislators who helped write two abortion bans now claim they intended their statutes to be less restrictive, but that rationale cannot apply to the third ban, which was passed in 1857.)
These plaintiffs want something more, too: They want the courts to create a right of patients to terminate a fetus that is deemed “incompatible with life,” meaning it has a condition that will prevent it from surviving after birth. Here, too, they will find stiff resistance. The anti-abortion movement vigorously resists such exceptions, rejecting the very concept of a fetal condition that’s incompatible with life. Thus, the exception is absent from Texas’ bans.
One plaintiff in the suit, Lauren Hall, suffered the consequences of this decision: Her fetus was diagnosed with anencephaly at 18 weeks, which hinders the development of a skull and brain. Yet no medical provider in Texas would even speak to her about abortion, evidently for fear of civil or criminal liability. She eventually flew to Seattle for the procedure.
Hall is just one of many women forced to carry a nonviable pregnancy because of a strict abortion ban. But she, like her fellow plaintiffs, faces a steep climb in the Texas judiciary. The state Supreme Court is composed of nine Republicans, none of whom have shown any solicitude for reproductive rights. The plaintiffs are essentially asking the courts to create a legal ruling that compels the state to respect a physician’s judgment about when, exactly, termination is necessary to spare the patient a lifelong injury or possible death. But in overturning Roe v. Wade, the Supreme Court said it would leave these decisions “to the people and their elected representatives.” The hard-right Texas judiciary seems likely to agree.
That’s not to say the effort is entirely hopeless. Doctors and patients desperately need help navigating Texas’ new abortion regime; the state courts may at least provide some clarity about the line that a condition must cross before it justifies an abortion. For instance, just how certain must a doctor be that their patient is dying before terminating their pregnancy? 10 percent? 50 percent? 100 percent? In practice, the answer today is: certain enough that they’ll take the risk of prosecution and incarceration. The courts could impose a clear standard that defers to the doctor’s reasonable judgment, shielding them from prosecution if their diagnosis was defensible.
But that won’t solve the underlying problem: Texas’ bans reflect the belief that it is worth risking a patient’s life to save the fetus, because the fetus simply matters more. Until the legislature changes the law, pregnant patients will keep risking sepsis, hemorrhage, and other horrific ailments before getting the care they need. Eventually, someone will die. And the state has already decided that this death will have been worth the trade-off.