Texas top court weighs scope of abortion ban exception for risky pregnancies

© Reuters.

By Brendan Pierson

(Reuters) -A group of patients and doctors on Tuesday urged Texas’ highest court to ensure that doctors cannot be prosecuted if they perform abortions that, in their good faith medical judgment, are necessary to safeguard the mother’s life or health.

Molly Duane, a lawyer with the Center for Reproductive Rights, told the Texas Supreme Court in Austin that the exception in the state’s near-total abortion ban for saving the mother’s life was so unclear it left doctors too “terrified” to deliver needed care because they face the prospect of life in prison if they break the law.

“While there is technically a medical exception to the bans, no one knows what it means, and the state won’t tell us,” she said.

Her clients are asking the court to uphold an Aug. 4 order by a lower court judge shielding doctors from prosecution for abortions under a range of circumstances, including when a pregnancy poses a health risk, exacerbates a health condition or when the fetus is unlikely to survive after birth.

That order came from Judge Jessica Mangrum of the Travis County, Texas District Court, an elected Democrat, and is currently on hold while the state appeals.

Texas Assistant Attorney General Beth Klusmann argued that the court should overrule Mangrum’s order, which she said essentially rewrote and expanded the exception in Texas’ abortion ban.

“We’re just trying to identify when it’s appropriate to end the life of an unborn child,” she said. “The legislature has set the bar high, but there is nothing unconstitutional about their decision to do so.”

Klusmann said physicians could navigate the exception.

“As long as your judgment is reasonable, you should be fine under this law,” she said.

‘HAVE TO DRAW A LINE SOMEWHERE’

Eight of the nine judges on the court were appointed by Republican governors, and the ninth is an elected Republican. Judges had skeptical questions for both sides.

“I wonder about the capaciousness of this injunction,” Justice Jimmy Blackrock (NYSE:BLK) told Duane, adding that it “very well could open the door far more widely than you’re acknowledging.”

Duane responded that physicians are able to distinguish true emergencies, and that there was “no evidence” they would rely on the exception inappropriately.

Meanwhile, Justice Debra Lehrmann asked Klusmann whether she acknowledged that the law “puts medical professionals in a really bad situation.”

“You’re going to have to draw a line somewhere, and there are going to be some hard calls,” Klusmann answered.

Texas passed the law in 2021, when abortion was still legal nationwide under the U.S. Supreme Court’s 1973 ruling in Roe v. Wade. The law included so-called trigger language causing it to take effect automatically if the Supreme Court overturned Roe, which it did last year.

The law’s exception states that a physician may perform an abortion if, in the physician’s “reasonable medical judgment,” the mother has a condition putting her “at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

The lawsuit was filed in March by five patients and two doctors. An additional 15 patients later joined the case.

The patients all alleged they had suffered pregnancy complications requiring abortions, or faced a risk of such complications in the future. Some said they had been forced to travel out of state to terminate a pregnancy.

One plaintiff, Amanda Zurawski, said she was hospitalized in Texas when her water broke at 18 weeks of pregnancy, a condition known as premature rupture of membranes, meaning her fetus could not be saved. She was told she could not have an abortion until fetal cardiac activity stopped or her condition became life-threatening.

Zurawski said she developed sepsis within days, which required intensive care and allowed the hospital to induce labor.

Earlier this year, Texas amended the law to state that premature rupture of membranes, along with ectopic pregnancy implanted outside the uterus, qualified for the exception.