Plaintiffs await judge’s decision in case that could clarify medical exception to Texas abortion ban
Across a two-day hearing in Zurawski v. State of Texas, a Travis County district court heard testimony from both physicians and women who were denied abortions amid serious pregnancy complications.
Now, the decision rests with Judge Jessica Mangrum whether to grant the plaintiffs’ request to temporarily block Texas’ abortion ban as it applies to the law’s exception for medical emergencies. She will also consider the state’s request to dismiss the case outright.
The case was filed in March by the Center for Reproductive Rights on behalf of five women who were denied abortions, along with two Texas obstetrician-gynecologists, Dr. Damla Karsan and Dr. Judy Levison. Eight more women have since joined the suit.
The sole exception to Texas’ abortion ban allows an abortion in the case of a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that “places the woman in danger of death or a serious risk of substantial impairment of a major bodily function.”
The plaintiffs’ attorneys argued that the vague language of this exception has a chilling effect on medical care, with physicians fearing penalties that include up to 99 years of prison time, $100,000 or more in fines and the loss of their medical licenses.
In addition to the temporary injunction, the plaintiffs are asking for a binding interpretation of this exception that allows physicians to exercise their “good faith judgment in consultation with the patient.” They say this would enable physicians to confidently provide abortions when a pregnant patient presents an emergent condition that threatens the life or health of that patient.
“[We need] something that guarantees physicians' protection if they practice within the standard of care,” Karsan said during a press conference following Wednesday’s proceedings.
In opening arguments on Wednesday, Molly Duane, senior staff attorney for the Center for Reproductive Rights, also addressed HB 3058, a law recently passed in Texas that specifies two conditions that may be treated with abortion — ectopic pregnancy and premature prenatal rupture of membranes, or PPROM. A list of conditions, Duane argued, was an inadequate measure that would inevitably result in patients falling through the cracks.
“Creating a list of every condition that would fall under the exception is impossible,” Duane said.
Thirteen of the 15 plaintiffs in Zurawski v. State of Texas are women who say they suffered from the ambiguity of Texas’ abortion law and should have been offered abortions. Three of these women testified on Wednesday, recounting viscerally traumatic experiences in which wanted pregnancies ended in tragedy.
Ashley Brandt recounted the moment while pregnant with twins when she was told one fetus had anencephaly, a condition in which the skull and brain do not properly develop. Doctors told her this condition was “incompatible with life” and could eventually cause premature birth, endangering the healthy twin. Brandt traveled out of state for a selective reduction, which is not permitted under Texas abortion laws as it results in the termination of one fetus.
Samantha Casiano’s late daughter was also diagnosed with anencephaly. Casiano said ongoing car trouble, child care obligations and fear of legal repercussion prevented her from pursuing an abortion out of state. She gave birth to a daughter named Halo and watched the baby gasp for air and turn from “pink, to red, to purple.”
While discussing the ordeal in court, Casiano became so distraught that she began to vomit behind the stand. After returning from a recess, she said she commonly had this reaction when reliving the events around her pregnancy and Halo’s death.
“I had wished to release my daughter into heaven sooner rather than later,” Casiano said. “Unfortunately, I was not able to do so.”
Amanda Zurawski, the lead plaintiff in the case, learned that her amniotic sac had ruptured prematurely when she was nearly 18 weeks pregnant. Her doctors told her a miscarriage was inevitable but that they could not legally induce labor until either the fetus’ heartbeat stopped or Zurawski’s life was immediately at risk. Several days later, she began experiencing symptoms of sepsis, and her baby was delivered stillborn. Zurawski herself spent three days in the intensive care unit.
In cross-examination, state attorney Amy Pletscher questioned Zurawski on previous fertility procedures she had undergone and their possible effect on the health of her pregnancy. After the hearing, Zurawski called this line of questioning traumatic.
“I survived sepsis, and I don’t think today was a much less traumatic event,” she said.
On Thursday, another woman who left the state to access an abortion testified: Dr. Austin Dennard, who is herself an OBGYN. While Dennard was pregnant in June 2022, the fetus she was carrying was diagnosed with anencephaly. As a physician, she said she immediately knew what this meant for her pregnancy’s outcome — and that she would have to leave Texas if she wanted to seek an abortion.
“I recognized that day, in that moment, that I was not critically ill. I was not hemorrhaging. I was not septic. I was pregnant with a lethal anomaly,” she said. “And I did not believe that I would be able to receive an abortion in my state at that time for the sole purpose of [that].”
Plaintiffs’ attorneys called two doctors to testify as expert witnesses, including Dr. Aaron Caughey, a maternal fetal medicine expert currently employed by Oregon Health & Science University, and Dr. Ali Shahbaz Raja, an emergency physician at Massachusetts General Hospital and a professor at Harvard Medical School.
Raja, who has trained emergency physicians that work in states across the U.S., said the exception to Texas’ abortion ban is prohibitively vague. He specifically called out the law’s lack of specification regarding timing — whether a patient’s condition must be immediately life-threatening or may be eventually life-threatening if left untreated.
“With patients where there’s a gray zone and there’s a lack of clarity, [physicians] are going to err on the side of not treating them,” Raja said.
State attorneys drilled the physicians about their experience with abortion practice and Texas medical law. They also unsuccessfully attempted to have both Caughey and Raja removed as witnesses, saying they lacked relevant experience.
The role of physicians formed a key argument for the state: Attorneys said that the state and state officials named as defendants in the case bore no responsibility for the decisions made by physicians to deny the plaintiffs abortion care. They further argued that the current exception to the law was sufficient to allow physicians to use their judgment when deciding to administer abortions for emergent conditions.
The state’s attorneys brought their own expert witness to testify on this point, Dr. Ingrid Skop, a San Antonio-based OBGYN. Skop also serves as vice president and director of medical affairs for the Charlotte Lozier Institute, an organization that “advises and leads the pro-life movement.”
Skop agreed that some patients had received sub-optimal care following the implementation of Texas’ abortion bans. However, she said it wasn’t the law itself that was to blame, but a lack of guidance from hospitals and medical associations that left physicians “confused” about their right to treat life-threatening conditions.
“It is not the law's fault,” Skop said. “The law is quite clear.”
In his final remarks, state attorney Jonathan Stone argued some of the plaintiffs lacked standing to challenge Texas’ abortion exception because they were not currently pregnant or able to become pregnant, referencing testimony from Zurawski, who said her medical emergency had left her with new reproductive challenges, and from Casiano and Brandt, who each took measures to prevent another traumatic pregnancy.
He also said the case was a veiled attempt by the plaintiffs to create leeway to perform abortions in more circumstances than the law intended.
“The plaintiffs claim they want clarification, but what they really want is an expansion of the law,” Stone said.
Duane closed out by countering state attorneys’ contention that it was physicians and not state law who had responsibility for the circumstances Zurawski and others experienced.
“According to the state, the blame rests with someone, anyone else,” she said. “But the attorney general need not be physically present in an exam room for his presence to be felt there.”
Judge Mangrum said she expected her decision to be ready in several weeks.