Dr. Damla Karsan was filled with a mixture of anger, fear, and anxiety. It was a Thursday in early December, and Texas attorney general Ken Paxton, in an unprecedented move, had threatened the OB-GYN—and the hospitals where she worked—with prosecution if they helped Kate Cox, a 31-year-old woman with a nonviable and life-threatening pregnancy, obtain emergency abortion care. Karsan’s thoughts immediately shifted to her women’s health practice in downtown Houston: How would she pay the rent? Or pay her staff? And most importantly, what would happen to her patients?
“I was really nervous. I did not want to be forced to give up my practice and caring for my patients,” Karsan, who has been an abortion care provider in Texas for more than two decades, told me last month. “But I also feel an obligation to advocate for those who are suffering, so they can get the care they need and deserve.”
Intimidation tactics, such as the one from the state’s top law enforcement official, were precisely why, last March, Karsan joined a lawsuit against the state of Texas. Zurawski v. Texas, filed by women who were denied abortion care amid life-threatening or high-risk pregnancies, requests clarity on the Texas abortion law’s vague medical exceptions. As it stands, the law provides no relief in cases like Cox’s—where a lethal fetal abnormality caused serious risk to her health. It only carves out an exception for a pregnancy that poses a “life-threatening physical condition” or one that risks impairing a “major bodily function.” If doctors are found to violate the law, they could face as many as 99 years in prison, $100,000 in fines, and loss of their medical licenses.
The largely ambiguous nature of what qualifies as a medical emergency, coupled with punitive consequences, has chilled life-saving abortion care in Texas, forcing doctors to turn patients away, wait until they are near death, or send them out of state for care.
Cox, whose fetus was diagnosed with a rare chromosomal condition that assured death either in utero or shortly after delivery, had already been rushed to the emergency room four times with complications including severe cramping and fluid loss. Doctors told her that while continuing the pregnancy could threaten her life and future fertility, their hands were tied by the state law. As a longtime abortion provider who has treated patients with a wide range of high-risk complications, Karsan believed Cox’s abortion should clearly fall under the medical emergency exception, so she offered to provide that care if a court allowed it. The 52-year-old Houston native and veteran medical professional, a graduate of both Rice and Duke universities, hoped a judge would defer to her many years of expertise.
One did. In a historic case, Cox and attorneys with the Center for Reproductive Rights successfully secured that court order from Travis County district court judge Maya Guerra Gamble for Karsan to perform the abortion. But Paxton swiftly appealed to the Texas Supreme Court, a nine-member body composed entirely of Republican appointees, including one who has bragged about being arrested 37 times for protesting abortion clinics. In response to the lower court’s order, Paxton threatened to prosecute “hospitals, doctors, or anyone else” who would assist in providing the procedure, warning Texas hospital leaders they could face first-degree felonies from district attorneys that could result in life in prison.
Paxton’s threats were not only chilling, says Karsan, but laid bare the “circular” logic of Texas’s anti-abortion laws and their right-wing enforcers. For instance, during the Zurawski hearing last year, the state argued that the onus is on individual doctors to decide whether a patient qualifies for an abortion under the law. Seeking to absolve the state of any responsibility for the stream of women who faced harrowing conditions, attorneys for the state asked each plaintiff whether the attorney general “directly” told them they could not get an abortion. State attorneys also argued that the plaintiffs lacked standing because they were no longer experiencing those risky pregnancies. Indeed, the women either fled the state to obtain an abortion or delayed pregnancy termination until they were in critical condition.
Cox’s case before Texas’s Supreme Court—which garnered national attention just a few months after the Zurawski hearing—put those ostensible claims to the test: Cox’s pregnancy occurred in real-time; the attorney general did in fact directly halt her ability to obtain an abortion; and her doctor confidently decided she qualified for the abortion.
“There are so many inconsistencies in the state’s arguments,” says Joanna Grossman, a gender and family law professor at Southern Methodist University. “The state gets to claim on one side of their mouth that there are humane exceptions in the law, but on the other side they go out of their way to fight against a pregnant woman’s potentially life-saving medical care. They are showing us that they believe there is no circumstance in which an abortion is needed.”
In the Cox case, the Texas Supreme Court seemingly contradicted itself. It found that the law “leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.” At the same time, the court found that Cox’s situation did not qualify for an exemption. Cox ultimately traveled out of state to terminate her pregnancy.
The Texas Supreme Court is expected to decide in the Zurawski case by June. But Grossman says that the court’s opinion in the Cox case “doesn’t bode well” for Zurawski. “It’s like the state is playing one big game of hot potato,” she says. “They are all trying to punt the responsibility but never truly entrusting doctors with the actual decision.”
In its Cox ruling, the court indicated that the Texas Medical Board, the state agency that regulates medical practice in Texas, can do more “to provide guidance” but the TMB board chair said it’s unlikely the board will do so until all current court cases are resolved. Frustrated by the agency’s inaction, Austin attorneys Amy and Steve Bresnen in mid-January petitioned the TMB to provide “clear guidance” to doctors navigating the medical gray area. The Bresnens describe the situation as an “untenable void.”
“The TMB has the authority to do something, and it’s unacceptable that they are choosing not to,” says Bresnen. “Pregnant women and physicians have zero [authority] right now, so any step forward leaves them with something better than zero.”
The petition details specific conditions that the Bresnens believe should be covered under the law’s medical exceptions, including cancer, hemorrhaging, preeclampsia, and sepsis. It also asks for clarification that a patient need not be on the brink of death or impairment for an emergency abortion to be performed. The TMB declined Texas Monthly’s request to interview a member of the board, but confirmed that it will review the petition. The board—which comprises nineteen seats appointed by the governor, sixteen of which are currently filled, and twelve of them by doctors—must respond by March 18, sixty days from the petition filing. It can either initiate a rulemaking process—which prompts public comment for thirty days and, ideally, input from medical groups—or deny the request with an explanation. But even if the board adopts the Bresnens’ recommendations in full, the TMB’s administrative rule—unlike action from the Texas Legislature—is not as effective at protecting doctors from criminal prosecution. Governor Greg Abbott could ultimately reject it if his office reviews the rule and deems it in conflict with state policy.
The Texas Medical Association, which represents the state’s physicians, signaled that it is more interested in a “legislative fix,” pointing to efforts to pass House Bill 3058 last session, which adds coverage for two complications—ectopic pregnancy and previable premature rupture of membranes. However, seen as a bipartisan “compromise,” the law is deemed “wholly insufficient” by abortion-rights attorneys fighting the state, as doctors who provide an abortion could still have to defend themselves in court to prove the procedure was necessary.
While court battles rage on, the state’s reproductive health doctors continue to operate in a limbo that for many is causing “moral distress,” according to a recent study published in the Journal of the American Medical Association. Karsan says she feels the impact of the law’s lack of guidance every day. She and colleagues have been prevented from offering emergency abortion care to patients who are suffering blood loss, infections, severe fetal defects, and suicidal depression. Some of her patients say they are afraid to get pregnant in Texas; she reassures them that while “the state may have abandoned” them, she will do everything in her power not to do the same.
She reflects on Cox’s case, saying she stands in awe of the Dallas mother’s bravery to “live her worst nightmare” in the public spotlight. All that national attention, and its requisite demands to relive that nightmare, hasn’t ceased: First Lady Jill Biden recently invited Cox to join her at the president’s State of the Union address in March as the administration seeks to focus on restoring abortion rights. “She found it in herself to speak up—it’s courageous, and I’m so proud of her,” says Karsan, who also acknowledges that there are so many stories like Cox’s in Texas that go unreported—and many more women who don’t have the means to travel outside the state for care.
For Karsan, the threats from Paxton have only strengthened her resolve to fight for clarity in the law—and stay in Texas while colleagues have either chosen to retire early or flee to states without abortion bans. Former employers have tried to recruit her to prestigious out-of-state positions, but she has continually declined. “My patients come first. I need to stay here for them,” she said.