Thirteen women sued the state of Texas in the spring, arguing that the medically necessary abortions they sought were denied or delayed because of ambiguous language in state laws. Those laws, they argued, left sizable room for interpretation regarding the circumstances under which the procedure remained legal in Texas after the Supreme Court overturned Roe v. Wade. On Friday, a state district judge issued a temporary injunction in the case filed by those thirteen women, Zurawski v. Texas, providing brief clarity regarding certain situations under which Texans facing medical emergencies could receive an abortion.
Travis County district judge Jessica Mangrum found in favor of the women, noting that “there is uncertainty regarding whether the medical exception to Texas’s abortion bans [. . .] permits a physician to provide abortion care” consistent with the doctor’s judgment and under certain conditions, and issued a temporary injunction, pending a trial, that laid out conditions under which Texas patients in need of an abortion could receive one. The clarity of the ruling turned out to be short-lived, however. Shortly after the judge’s ruling was issued, lawyers in the Texas attorney general’s office filed a notice for an accelerated appeal to the Texas Supreme Court. As a result, the judge’s injunction has been paused until the state’s highest court weighs in.
Have questions? We do too. Here’s Texas Monthly‘s best attempt to figure out where the law currently stands, and what’s next.
What laws currently regulate abortion in Texas?
Texas currently has several overlapping abortion bans; one that outlaws the procedure has been in place since the 1920s, while another, HB 1280, was signed after the 2021 legislative session as a “trigger” law that would implement another abortion ban if and when Roe was overturned, which happened the following summer. That law allows for exceptions to the ban in cases where the patient seeking the abortion “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” as well as when there’s a risk of “substantial impairment of a major bodily function” stemming from the pregnancy.
Then there’s SB 8, which creates a civil, rather than a criminal, penalty for doctors and others who facilitate abortions, allowing private individuals the ability to sue anyone who performs or “aids and abets” in the procedure. All three laws have different restrictions and create different penalties for abortion, which makes understanding state law especially tricky. Seeking clarity is part of the goal of Zurawski v. Texas.
What sort of clarity did the lawsuit seek?
Currently, Texas doctors who want to avoid a felony charge are left in a legal gray area when a patient is experiencing a complication that is not yet fatal but which is likely to lead to the sort of life-threatening condition that qualifies as an exception to the law. Advocates who support the abortion ban argue that these patients should be allowed to receive abortions—and, in fact, they argue that the wording of the current law clearly allows them to do so. Attorneys for those doctors and/or the hospitals for which they work, however, do not find the language of the law to be quite so straightforward, and counsel their clients to wait until the patient’s situation reaches a level of emergency about which the law is less ambiguous. The thirteen women who filed this lawsuit all found themselves in that situation, with some having to wait until their health was seriously endangered to receive care, and others choosing to leave the state to receive care that a Texas doctor would not provide.
There are ways for Texas to provide guidance and clarity to doctors that would allow for those medical professionals to be confident that they were not risking a felony charge by treating patients such as the ones who filed suit. The Texas Legislature, for example, could have broadly clarified the law during the most recent session; it passed one bill, which goes into effect in September, establishing that ectopic pregnancies and situations in which there is “a previable premature rupture of membranes” qualify as exceptions. The state’s licensure agency, the Texas Medical Board, could have released guidance clearly outlining the circumstances under which an abortion falls under an exception to the law. Or the state could have decided, given the narrow scope of Mangrum’s ruling (see below), not to appeal her injunction. Instead, though, the state has thus far rejected attempts to formally clarify the law in a comprehensive way.
What did the judge rule on Friday?
Mangrum’s ruling laid out a list of conditions under which abortion would remain legal in Texas. That list wasn’t comprehensive—it began with the words “at a minimum”—but directly addressed many situations a pregnant patient might encounter, most of which are consistent with situations in which advocates for the ban agreed there should be exceptions. Those include “a physical medical condition or complication of pregnancy” that creates a risk of infection or that “otherwise makes continuing a pregnancy unsafe for the pregnant person”; physical conditions that would be exacerbated or rendered untreatable by continuing the pregnancy (for example, chemotherapy or radiation for cancer, which can’t be offered to pregnant patients); or fetal conditions in which the fetus is “unlikely to survive the pregnancy and sustain life after birth.”
These conditions did not necessarily need to be life-threatening, Mangrum found, writing that the Texas constitution protected patients and doctors from enforcement of the laws if the abortion “would prevent or alleviate a risk of death or risk to their health (including their fertility).” Finally, the ruling also found SB 8 unconstitutional under Article 1, Section 13 of the Texas constitution. The judge didn’t go into detail on how or why the controversial law was unconstitutional—she merely dismissed it with a single line at the top of her findings, before getting into the rest of the injunction.
Does that mean that patients experiencing those conditions are able to get abortions in Texas now?
It’s complicated. The state immediately filed an accelerated appeal to the ruling, which will bring the matter before the Texas Supreme Court. That put the judge’s ruling on pause, which means the current law in Texas is the same as it was on Friday morning.
Here’s the complicated part: The state argued that the laws as written already would have allowed all of the plaintiffs to obtain abortions, and that the issue was actually doctors who didn’t understand the existing exceptions. That argument doesn’t itself constitute formal legal guidance about which situation, specifically, allows them to perform abortions, however. Trying to get a clear and unambiguous answer as to when a patient can receive an abortion under the law is the primary purpose of the lawsuit, so with the injunction lifted, doctors are back in the dark.
Does the judge’s ruling change what the law currently allows?
Pretty much everyone seems to agree that abortion is legal when the pregnancy is likely to kill the patient if continued. Mangrum’s ruling also specifically cites risks to a patient’s future fertility as cause for an exception to the ban, which seems to be consistent with the law’s exception for situations where “substantial impairment of a major bodily function” is at risk, as well as a less specific risk to a patient’s health.
The injunction also adds exceptions to the abortion ban for patients whose health is at risk because of a non-pregnancy condition that the pregnancy won’t allow doctors to treat (again, think cancer). The lone lawmaker who was willing to discuss such situations with Texas Monthly last year, Bryan Slaton (who has since resigned from the Legislature), acknowledged that the current law probably did not allow a patient in that position to have an abortion. Finally, it allows for an abortion in cases where the pregnancy is nonviable even if continuing it does not specifically create a high risk of death or the loss of a major bodily function.
Why is the state appealing the ruling?
Outside of the narrow situations noted above, the judge’s ruling doesn’t deviate much from the exceptions already in HB 1280—the Legislature sought to ban almost all abortions in Texas, except when medically necessary, and the ruling doesn’t change that. An email to the attorney general’s office requesting an interview went unreturned. First assistant attorney general Brent Webster released a statement on Friday calling the judge’s injunction “an activist Austin judge’s attempt to override Texas abortion laws,” but neither that statement nor the text of the appeal itself explains what part of the injunction the state disagrees with. It seems unlikely that the AG’s office seeks to ensure that pregnant cancer patients can’t receive treatment, for example.
When proponents of the state’s abortion bans talk about how Texas law already has narrow exceptions for patients at risk, they’re usually referring to the section of HB 1280 that notes the exceptions to the law. In a statement emailed to Texas Monthly on Sunday, Amy O’Donnell, communications director for the anti-abortion group Texas Alliance for Life, expressed her disagreement with the ruling. “While Texas law is clear, we believe that some doctors are not apprised of the actual language of the law, resulting in poor care for their patients,” she wrote. Professional medical organizations such as the Texas Medical Association and the American College of Obstetricians and Gynecologists (ACOG), as well as the Texas Medical Board, should provide the guidance doctors rely on, she argued, rather than the courts. “Judicial activism from the bench using non-medically defined terms opens the door for greater confusion,” O’Donnell wrote.
What have medical organizations said about Texas’s abortion laws?
ACOG has consistently opposed Texas’s abortion restrictions (as well as those in other states), as has the Texas Medical Association. But medical organizations don’t determine or enforce the law, which makes it risky for doctors to rely on their judgment about what the law permits. Meanwhile, the Texas Medical Board hasn’t offered any guidance regarding the circumstances under which a doctor may legally perform an abortion. Indeed, the lawsuit names the licensure board as a defendant, citing its ongoing silence around the issue despite months of requests for clarification from professional medical organizations and politicians of both parties.
While the case is awaiting appeal, under what circumstances can a Texan receive an abortion?
That’s still a difficult question to answer. A patient can receive an abortion if their pregnancy is currently threatening their life. But many situations are more complicated. Jessica Bernardo, a plaintiff in the lawsuit, was fourteen weeks into a wanted pregnancy when she learned that her baby had fetal anasarca, a non-survivable condition that also put Bernardo herself at risk for mirror syndrome, a potentially life-threatening complication. When the fatal anomaly was found in her baby, however, she herself wasn’t yet at risk of death; accordingly, her hospital’s ethics committee denied her request for an abortion that would have ended the nonviable pregnancy and allowed her to avoid the risk of a fatal condition of her own. She traveled to Seattle to receive the procedure.
Judge Mangrum’s ruling seemed to provide clarity for similar situations, as it explicitly allowed for a patient in Bernardo’s situation to terminate the pregnancy once doctors had determined that the patient was at risk of developing mirror syndrome from a non-viable pregnancy, instead of waiting for the condition to develop and create the risk of death. With the ruling stayed, hospital legal boards are likely to recommend doctors avoid potential liability by waiting for such complications to turn life-threatening.
What happens next?
The Texas Supreme Court will weigh whether to allow Judge Mangrum’s injunction to go into effect, though it’s not clear exactly when that will happen. Keep in mind, though, that her ruling was always temporary. When Zurawski v. Texas goes to trial—scheduled for March 25, 2024—the court will decide what sort of medical emergency a patient must experience before Texas law allows an abortion.