How a Texas case exposes vague abortion laws

A Texas state court on Friday sided with a group of women and doctors suing the state, saying that exceptions to Texas’ stringent abortion restrictions are too vague and prevented or delayed people from getting abortion care when their lives or health were at risk.

Texas’ SB 8, which passed before Roe v. Wade was overturned last year, bans abortions past six weeks with some exceptions and deputizes citizens to enforce the law by suing people who aid or abet abortion, putting healthcare providers at legal risk. Under the law, doctors can provide abortion care if the health or life of the pregnant person is at risk; but the lack of clarity around what those conditions meant had a chilling effect on doctors in the state — and had serious effects on patients’ health

Judge Jessica Mangrum of the Travis County District Court ruled Friday in Zurawski v. State of Texas that physicians could use their “good faith judgement” to perform an abortion for a patient who has, “a physical medical condition or complication of pregnancy that poses a risk of infection, or otherwise makes continuing a pregnancy unsafe for the pregnant person; a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth,” according to the ruling.

The Texas Attorney General’s office filed an appeal in the case on Friday night, staying the injunction while the case is on appeal, according to the New York Times, and accusing Mangrum of trying “to override Texas abortion laws.”

Mangrum’s injunction would block SB 8’s vigilante enforcement mechanism from being enacted against any patients seeking abortions for medical reasons or against the physicians who perform those procedures — and furthermore states that doing so would violate pregnant people’s rights under Texas’s constitution.

Though Mangrum’s injunction is presently on hold, it’s important for two main reasons that are not exclusive to Texas: It forces clarity around abortion exceptions and protects doctors and patients; and it establishes that punishing people who seek or provide abortions under those circumstances is unconstitutional.

Though the eventual, final ruling will apply only to Texas, it’s not the only state where unclear legislation is limiting access to medically necessary abortion. And it’s not the only state where reproductive health advocates are grappling with the right to abortion under the state’s constitution.

The vagueness and chilling effect are the point

As anti-abortion state legislators have enacted bans throughout the country, they’ve had to grapple with the complexities of abortion care and reproductive health. Most pregnancies are safe and healthy, but some cause severe complications or are not viable. Overturning Roe v. Wade didn’t change those conditions or provide better prenatal healthcare, it just made pregnancy more dangerous in many states.

“[Anti-choice legislators] could make whatever political points they wanted to because they had a backstop,” with Roe v. Wade in place, South Carolina Senate Minority Leader Brad Hutto told Vox in September. “They knew nothing they passed was ever going to go into effect. They could pass all they wanted to, and it didn’t matter — and it allowed them to let their rhetoric to just soar to the red meat of their party because they could gin up the party knowing that nothing they said was ever going to be enacted into law. Then, all of a sudden […] it’s like the dog that caught the bus.”

With SB 8, Texas legislators not only passed a restrictive abortion ban but they empowered ordinary Texans to interpret and prosecute the ban. That compounds the risk for physicians who provide abortion care, in some sense, because they don’t know the conditions under which they can do so — or who might bring a $10,000 lawsuit against them for doing their jobs.

Meanwhile, the state argued in court that the law was clear enough — and if anyone who should have had an abortion was denied one, it was the physician’s fault, not the law’s or the state’s.

“Physicians have been begging for guidance […] since SB 8 went into effect,” Molly Duane, senior staff attorney at the Center for Reproductive Rights, told Vox in an interview. “No one from the state has provided any guidance, and in fact the only thing the attorney general’s office has done is file their own lawsuit challenging some guidance from Health and Human Services — the federal department that oversees the practice of medicine — saying that a federal statute called EMTALA which allows abortion care and any other care in an emergency, that that shouldn’t apply in Texas.”

Like in Texas, Indiana’s legislature passed a near-total abortion ban that went into effect on August 1. It’s a hostile state for people who need abortions; medication abortion is illegal, and Attorney General Todd Rokita in June signed a letter opposing an amendment to HIPAA, the federal medical privacy law, which would prevent state officials from accessing information about patients who traveled out of state to get an abortion.

Rebecca Gibron, CEO of Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, and Kentucky, told Vox in an interview that the lack of clarity in these laws is the point. “These laws, and this new law, are incredibly confusing,” she said. ”Extreme lawmakers are writing these laws intentionally to cause harm, to create chaos and confusion both for providers and for patients.”

Gibron’s organization filed suit in the state Supreme Court to block the law from going into effect pending a case in trial court which would provide clarity specifically around the health exceptions to Indiana’s abortion ban. “It doesn’t stop the ban from going into effect, it simply is asking the court to clarify the health exception and to block the section of the ban that limits healthcare providers’ ability to offer abortions in cases where the health of the pregnant person is threatened,” she said.

Without that clarity, not only are patients risking their lives with a pregnancy and doctors risking their practices, but it could cause a brain drain for reproductive healthcare providers who feel they can’t safely practice in the states where they live. That’s especially grave in a place like Indiana which has the third-highest maternal mortality rate in the country — and it’s increased 58 percent in the past three years.

How pregnant people can be protected under state constitutions

Zurawski v. State of Texas hinged on the testimony of 13 women and two physicians, who told the court about their life- or health-threatening pregnancies, and how difficult it was to get abortion care when they needed it.

Their argument was that although Texas doesn’t have enshrined in the constitution a right to abortion, the plaintiffs and people like them — those who need an abortion for medical reasons — are protected under the state’s constitution.

“Texas’ constitution has a right to life and liberty, plus they have an equal rights amendment — so, that guarantees equal treatment to women and men, something that does not exist in the federal Constitution,” Duane said. “We brought these life, liberty, and equality claims to the Texas state court because that is the source of the rights, is Texas law and the Texas constitution.”

Duane and her team argued for clarification of the law, but they were also arguing, she told Vox, that “the bare minimum that we believe that pregnant people in Texas are entitled to is protection of their life and health, even while they’re pregnant.”

The case will now go to Texas’ appellate court, and then to the state Supreme Court — which, Duane noted, is not known for its progressive stance on abortion.

Other states have used the constitution more overtly to protect the right to abortion; Ohio will hold an election on Tuesday deciding State Issue 1, which could limit the ability to amend the state constitution through further ballot measures — including one that would enshrine the right to abortion in Ohio’s constitution. That measure will be voted on November 7 and would codify Ohioans’ right to ”make and carry out [their] own reproductive decisions.”

Abortion is presently legal in Ohio until viability despite a 2019 law banning the procedure after about six weeks of pregnancy. A county court judge stayed that law last year after Roe v. Wade was overturned, ruling that Ohio’s state constitution grants the right to abortion because it gives women equal protection and benefit under the law.