When the U.S. Supreme Court in June reversed Roe v. Wade, which had guaranteed abortion rights, Texas Republicans immediately—and loudly—claimed victory. It was, for many in the conservative movement, the fulfillment of a half-century-long project that touched everything from campaign fund-raising to the wholesale transformation of the courts.
What has become clear, however, was how little they thought through the consequences of their lawmaking on Texans whose pregnancies pose serious threats to their lives or their long-term health.
Last year, in anticipation of the Supreme Court revisiting Roe with a 6–3 majority of Republican-appointed justices, the Texas GOP passed a so-called “trigger” law, House Bill 1280, banning abortion from the moment “when a male human sperm penetrates the zona pellucida of a female human ovum”—a moment more commonly known as fertilization. That law goes into effect August 25. And, like previous laws restricting abortion, it includes an exception for pregnancies that would kill or severely injure the individual carrying the child.
Much like the other abortion restrictions the Texas GOP passed last year—such as Senate Bill 8, Texas’s restriction on abortion after embryonic cardiac activity is detected, typically at about six weeks’ gestation—HB 1280 is decidedly short on specifics regarding when medically necessary abortions are allowable. Even before Roe’s reversal in June, the real-world effects of these laws’ vagueness were already manifest.
Consider the case of Elizabeth Weller, a graduate student in Kingwood, a planned community northeast of Houston. In early May, her water broke when she was 18 weeks pregnant, far earlier than fetal viability, which is at about 24 weeks. While the baby’s chance of surviving until viability was low, and both Weller and the baby were at risk of developing an infection because of the membrane rupture, doctors could still detect a heartbeat, so the hospital determined that abortion was off the table under SB 8. Weller was forced to wait days for her infection to become severe before the hospital’s ethics panel agreed doctors could perform an abortion without running afoul of the law.
Another Houstonian, Marlena Stell, a beauty YouTuber, was forced to carry her dead fetus for two weeks after she experienced a miscarriage last fall, because her doctor feared that if he removed it, he could be held in violation of SB 8, which allows private citizens to sue anyone who performs an abortion or aids someone else in trying to get the procedure. Doctors’ refusal to remove the fetus placed Stell’s health, and her ability to have another child, at risk, medical experts say. Texas Monthly spoke to another expectant mother in July who was forced to flee the state last year when she learned that complications with her pregnancy meant that her child was likely to die in the womb or shortly after being born, while continuing to carry the child would also put her health in jeopardy.
Now in a post-Roe world, cases like theirs—in which reproductive health decisions are weighed in legal terms—are becoming more common. Texas attorney general Ken Paxton issued an advisory in June saying prosecutors could immediately pursue charges against abortion providers who violate a series of century-old state laws criminalizing abortion, on the theory that those laws are no longer unconstitutional with the overturning of Roe. Medical and legal experts say the ways in which exceptions to the abortion ban for conditions that could cause death or create a “serious risk of substantial impairment of a major bodily function” are defined, and who gets to define them, already differ from one hospital and physician to the next. The result has been confusion, and complicated debates, among health-care providers around the state. The new Texas laws are open to a wide range of interpretations, and that is leading some doctors who fear prosecution to wait until a patient is at death’s door to perform a life-saving abortion. For anyone engaged in family planning or at the nexus of pregnancy and a health crisis, critical legal questions remain unanswered.
In hopes of understanding when exactly threats to the life and long-term health of the mother are acceptable reasons under Texas law to obtain an abortion, Texas Monthly sought clarification from Paxton, as well as the bill’s author and the legislators who passed the law—the 79 current members of the state House of Representatives and 19 members of the state Senate who voted to pass HB 1280. We also asked defense lawyers, district attorneys, doctors, medical ethicists, right-to-life organizations, and state leaders. In each conversation, our goal was simple: to identify a working definition for what constitutes a serious risk to “the life of a mother” or “substantial impairment of a major bodily function.” For example, if a patient undergoing cancer treatment became pregnant, would that patient be forced to stop treatment—or proceed with treatment knowing the harm it could cause the fetus? Is it required under this law for a patient experiencing a miscarriage or nonviable pregnancy to wait until that patient’s life is threatened by infection to receive abortion care?
Despite our extensive outreach, we got few straight answers—though some of the roundabout ones were revealing. Of the Texas legislators to whom we gave an opportunity to help the public better understand the basic architecture of a dramatic shift in policy that so many lawmakers claim to champion, only one agreed to an interview.
Paxton, the man responsible for determining HB 1280’s implementation and prosecution in Texas, who sued the Biden administration in July over its guidance to hospitals about offering emergency abortions, did not respond to interview requests. Staff members from eight lawmakers’ offices directed us to representative Giovanni Capriglione, the Republican from Southlake who authored HB 1280, but he didn’t respond to multiple requests for an interview or to an emailed list of questions.
Bryan Slaton, a Republican from Royse City, was the only lawmaker who responded to Texas Monthly’s request for clarity about HB 1280. A pastor and businessman, Slaton said the “main goal” of the trigger law was “protecting a life.”
“It wasn’t focused on exceptions,” he said.
In the case of a patient undergoing chemotherapy or radiation treatment who then gets pregnant, Slaton said a doctor would likely need to prove the pregnancy was threatening the patient’s life, not the cancer or the treatment. He seemed to view medical questions about abortion exceptions, in large part, through a legal lens. If a doctor, relying on scientific evidence, is able to prove in court that “the baby’s life was causing the mother’s life to be in jeopardy” when an abortion was performed, Slaton was inclined to believe it was legal under HB 1280. Though, he admitted, it’s a “nuanced situation.”
When we posed the same questions to organizations opposed to abortion rights, spokespeople seemed eager to clear up what they called the “misconception” that exceptions for pregnant mothers are poorly defined and likely to put them at risk. Some, like Kim Schwartz, a spokesperson for Texas Right to Life, the oldest anti-abortion organization in Texas, declined to discuss specific scenarios in which exceptions for the mother’s life and health are unclear and instead reiterated the legal language in existing state law. “Abortion is legal if a woman faces a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed,” she wrote via email.
Amy O’Donnell, a spokesperson for Texas Alliance for Life, another advocacy group that opposes abortion rights, pointed to the state’s existing health and safety code, in which ectopic pregnancies, pregnancies in which the fertilized egg implants outside the uterus, and miscarriages are not considered abortions. In other scenarios in which a pregnant patient’s life or health are at risk, O’Donnell and other like-minded activists say doctors can perform what they call a “separation” of an unborn child from its mother—terminology echoed in a fact sheet produced by the Charlotte Lozier Institute, a right-to-life organization based in Washington, D.C., that advocates for the idea that human life begins at conception. Like other anti-abortion advocates, O’Donnell argues that Roe’s reversal does not cause undue risk to pregnant women because the health conditions that would require abortion as a means of saving their lives or their long-term health are “very rare in modern science.” When those conditions do arise, she said, medical exceptions in the law adequately address those cases. “When a pregnant mother faces a life-threatening situation, an induced abortion that aims to kill the child is not the answer,” she said. “There are many ways to deal with this situation that do not seek to take the life of the child.”
In the U.S., seven hundred women a year die from pregnancy-related complications, according to the Centers for Disease Control and Prevention. In Texas, that number is around seventy. Eight percent of all pregnancies face medical complications that, if left untreated, could pose health risks, according to Johns Hopkins University. An estimated 66,000 women in Texas will be diagnosed with cancer this year, and more than 450,000 women in the state are cancer survivors (which includes those who are cancer-free and those undergoing treatment). Premature rupture of membranes (PROM) before fetal viability, like Elizabeth Weller experienced, affects 1 percent of all pregnancies.
And there are other scenarios in which pregnancy could put health or even life at risk, such as patients who are considering suicide. Before Roe v. Wade was overturned, many states allowed for therapeutic abortions if a psychiatrist considered a patient at risk of killing herself. While Texas’s pre-Roe statute was ambiguous on this issue, HB 1280 specifically prohibits abortion if the risk arises “from a claim or diagnosis that the female would engage in conduct that might result in the female’s death or in substantial impairment of a major bodily function.”
When asked about mental health risks, Slaton argued that it would be harder to prove that a mother’s life was at risk. “That’s not medical science,” he said. “All somebody would have to do is claim they are suicidal and find a mental health professional that is sympathetic to their political beliefs.”
Slaton was also asked whether an exception should exist in situations in which someone experiencing domestic abuse becomes pregnant, which some studies show puts the individual at greater risk of homicide. He answered by referencing a case entirely unrelated to abortion: that of Botham Jean, a Black man who was shot and killed in his apartment in 2018 by a white, off-duty Dallas police officer who entered Jean’s apartment, saying she thought it was her own and believed he was a burglar. (Amber Guyger, the officer, was convicted of murder and sentenced to ten years in prison.) After the conviction and sentencing, Jean’s brother took the stand and told Guyger that if she was truly sorry for killing his brother, he forgave her. Slaton said he hoped women in domestic violence situations would follow Brandt Jean’s lead. “Instead of perpetuating that violence and that hate, that young man did an amazing thing and offered love and grace and forgiveness,” he said. “It was a horrible situation. He lost his brother. And, and so this hypothetical you’re giving me, I would hope anyone that goes through a horrific situation in life can find a way to show love, grace, and forgiveness and not perpetuate more violence”—by which he meant obtaining an abortion.
We asked state leaders about other scenarios that are playing out across Texas—scenarios concerning ectopic pregnancies, miscarriages, and conditions that make pregnancy dangerous, like the risk of a ruptured uterus after multiple cesarean sections—and received little direction. While Slaton said he expects some protections to be more clearly defined during the 2023 legislative session, the current lack of clarity from Paxton and lawmakers has effectively reduced access to medically necessary abortions.
Blake Rocap, a lawyer who works with abortion advocacy organizations, said he believes the vagueness surrounding exceptions—combined with the fact that doctors and health-care officials are being asked to make legal decisions—is a way of deterring abortion. The law’s language, Rocap says, allows anti-abortion advocates to describe exceptions in a palatable way even as it perpetuates enough ambiguity to dissuade hospital lawyers from advising doctors to take medical risks that could result in prosecution. “Anybody getting conservative legal advice from their hospital system or their in-group counsel, those lawyers aren’t well versed in this stuff, and they’ll say, ‘Yeah, I don’t know, the safest course of action is just don’t do it,’ ” Rocap said. “And that’s the advice that people are going to get, right? So it’s intentionally vague in that respect.”
John Henderson, the CEO of the Texas Organization of Rural & Community Hospitals (TORCH), said, to date, in rural parts of the state, he wasn’t aware of any conflicts between hospital lawyers and pregnant patients in need of life-saving abortion care. But, he said, when legal gray zones occur, he expects hospitals to seek out legal guidance. “I wouldn’t say that will result in conflict necessarily, but I’d characterize it as stressful, delicate situations that everybody involved is trying to navigate and work through,” he said. “Sometimes, the provider might come at that a little differently than an attorney who is trying to protect them from legal exposure or prosecution.”
An in-house counsel for a large Texas hospital, who asked to remain anonymous because of the sensitive nature of the topic, said HB 1280 prompted his organization to create a committee that reviews potential abortion cases to ensure they’re compatible with state law. The committee can be convened on short notice, even after hours and on weekends. Despite the protocols, the lawyer said, HB 1280 has filled doctors with anxiety because parts of their job that were considered routine as recently as last year would make them “outlaws” today. Should they accidentally run afoul of the law, doctors have asked whether the hospital will provide them with legal counsel. The answer depends on the circumstances of the abortion, the lawyer said, noting that the law doesn’t place legal liability on the shoulders of hospitals. “The law doesn’t target hospitals, it targets doctors,” the counsel said. “1280 makes it a felony, first-degree crime, punishable by five to ninety-nine years in prison, to perform an abortion that doesn’t meet the exception. Hypothetically, you could have a scenario where a doctor who treats a rape victim ends up being punished harsher than the rapist.” The hospital counsel added, “The law may be black and white, but medicine is not.”
When asked about the ways various risk calculations might play out in the hospital from an ethics perspective, Dr. Alyssa Burgart, a physician and medical ethicist specializing in pediatric and obstetric ethics, said it’s the responsibility of the physician to have a conversation with a patient so the patient understands risks, benefits, and alternatives of various treatments. She said HB 1280 interferes with a doctor’s obligation to share accurate, relevant information with patients so that they can make decisions about their lives. “There’s absolutely no question that physicians in Texas are going to be required to make advice and make treatment plans that are completely irrational based on this law,” she said. “These are not evidence-based recommendations. The idea that we have taken away a completely typical alternative treatment plan for patients is unconscionable.”
The question of prosecution also remains unclear. Travis County DA José Garza told Texas Monthly he believes HB 1280 “will not only fail to promote or protect public safety but will also lead to more harm.” After the Supreme Court’s Dobbs decision overruling Roe v. Wade, he joined DAs from Bexar, Dallas, Fort Bend, and Nueces counties in pledging not to prosecute doctors who perform abortions. But that protection may last only as long as those specific DAs are in office—or until the state legislature decides to allow prosecutors to bring charges against doctors outside their jurisdictions, as some Republican legislators have vowed to do.
To combat the legal ambiguity that has turned abortion care into a lottery that depends on a mixture of hospital affiliation, legal advice, and how daring doctors happen to be feeling that day, Dr. Ghazaleh Moayedi, an obstetrician and gynecologist based in Dallas, said the Texas medical community needs to come together to define when abortion interventions are appropriate. Regardless of how the state’s trigger law is currently constructed, she said, it would be helpful to have major medical groups recommend explicit clarifications around certain definitions of care. If a patient’s amniotic sac ruptures fewer than 22 weeks after conception, she said—or a cervix is dilated and a patient is bleeding—an immediate abortion should be offered because waiting is likely to result in death. But moments after making her pronouncement, Moayedi admitted her recommendation is unlikely to be adopted. “I’m also not certain how much it will matter,” she added. “Scientific evidence, medical opinion, and the health and safety of our communities are not what is being taken into consideration when making abortion bans. These rules are not designed to keep pregnant people safe, [they’re] to exert control over women’s bodily autonomy.”
Saliha Bayrak, Madison Ford, Oliver Kneen, Dan Solomon, and Mimi Swartz contributed to this reporting.