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Who falls under the exception in Texas' abortion ban? A lawsuit seeks clarity.

People stand and speak at a podium on the lawn of the Texas Capitol
Patricia Lim
Amanda Zurawski and Center for Reproductive Rights leaders discuss a lawsuit to hold the State of Texas accountable for the consequences of multiple abortion bans, on Tuesday.

A group of five women and two doctors has sued the State of Texas over its abortion bans, and are asking a judge to clarify when abortions can be provided under the state’s “medical emergency” exception under current law.

Each of the five plaintiffs were denied abortions despite being diagnosed with conditions during their pregnancies that put their lives at risk.

“An abortion would have prevented the unnecessary harm and suffering that I had,” Amanda Zurawski, one of the plaintiffs, told reporters outside the Texas Capitol on Tuesday. “I needed an abortion to protect my life and to protect the lives of my future babies that I dream and hope I can still have.”

Zurawski was in her second trimester, about six months pregnant, when she started getting unexpected symptoms.

After a visit to her obstetrician, she was diagnosed with preterm prelabor rupture of membranes, or PPROM. That condition meant that her fetus would not survive.

“I asked what can be done to ensure the respectful passing of our baby and what could protect me from a deadly infection now that my body was unprotected,” Zurawski told reporters. “My health care team was anguished as they explained there was nothing they could do because of Texas’ anti-abortion laws.”

That was, in part, because doctors could still detect fetal cardiac activity.

But a few days later, Zurawski developed sepsis. She was ultimately able to get an abortion, but it was too late — she said the sepsis damaged one of her fallopian tubes. She now worries about her future chances of becoming pregnant.

The plaintiffs in the lawsuit claim Texas’ current abortion bans include conflicting language that have made it difficult for doctors to provide abortion care under the state’s “medical emergency” exceptions.

They are asking a district court in Travis County to clarify that the abortion bans “permits physicians to provide a pregnant person with abortion care when the physician determines, in their good faith judgment and in consultation with the pregnant person, that the pregnant person has a physical emergent medical condition that poses a risk of death or a risk to their health.”

Under current state law, a “medical emergency" means “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.”

In a statement to The Texas Newsroom, Jarod Griffin, the spokesperson for Attorney General Ken Paxton, said the Republican “is committed to doing everything in his power to protect mothers, families, and unborn children, and he will continue to defend and enforce the laws duly enacted by the Texas Legislature.”

Griffin also pointed to guidance issued by Paxton after last year’s U.S. Supreme Court decision reversing abortion rights.

The guidance says that a physician who performs an abortion faces “penalties of no less than $100,000 for each violation, and may lose his or her professional license.”

Physicians could also face criminal charges.

Molly Duane, an attorney with the Center for Reproductive Rights who represents the five plaintiffs, told The Texas Newsroom that current law has left doctors fearful, and have made them interpret the law to mean that a patient needs to be near death in order to qualify for an abortion.

“The situations that our plaintiffs have talked about today are clearly the type of emergent medical condition that was contemplated by the statute,” Duane said. “But the fact of the matter is that because of the political risk that politicians in Texas have created for physicians, they need more clarity that that is the case before they can move ahead with care.”

Sergio Martínez-Beltrán is the former Texas Capitol reporter for The Texas Newsroom.
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