It has been two years since the U.S. Supreme Court delivered its opinion in Dobbs v. Jackson Women’s Health Organization. In doing so, it reversed its 1973 decision in Roe v. Wade; overturned the national right to abortion; and gave states the power to enforce their own abortion laws.
Since this historic shift, women, doctors and activists have made attempts to test and clarify the margins of Texas’ near-total bans on abortion.
What does Texas law say now?
Texas had already successfully enacted its six-week abortion ban, Senate Bill 8, prior to the Dobbs opinion being released, but the decision resulted in a further tightening of restrictions. Texas’ trigger law went into effect after Roe was overturned, making it illegal to perform an abortion from the time of fertilization. Only when a mother’s life or a “major bodily function” is at risk can an abortion legally be performed in Texas.
Texas’ laws do not criminalize pregnant individuals who seek out an abortion. However, private citizens can bring lawsuits against “anyone who performed, aided or abetted” an abortion under SB8. Doctors also face stark penalties if they are found to have performed an abortion illegally, including up to $100,000 in fines, up to 99 years in prison and the loss of their medical license.
Seeking clarity through the courts
Several prominent lawsuits have tested aspects of Texas abortion law over the past two years, particularly focusing on what qualifies as a medical emergency that necessitates an abortion. Texas law does not offer a definition — rather, doctors are told to use their “reasonable medial judgment.”
One of the most prominent examples was Zurawski v. Texas, a case brought by some 20 women who asked the courts to clarify when emergency medical circumstances are sufficient to allow an abortion. Two of the plaintiffs were OBGYNs who said the vagueness of the exception had tied their hands; the rest were women who said they should have been offered an abortion as treatment for serious medical complications during pregnancy. Lawyers with the Center for Reproductive Rights argued that doctors should only have to exhibit “good faith judgment” when navigating pregnancy-related emergencies.
The Supreme Court of Texas recently denied the Zurawski challenge. In a unanimous decision, justices said Texas law is sufficient to allow doctors to use their reasonable medical judgment. They also said that a medical crisis doesn’t have to be imminent for an abortion to be allowed under existing law.
In the Cox v. Texas case, which played out in December 2023, the Supreme Court of Texas refused to rule that a specific woman, Kate Cox, could receive an abortion under the state’s emergency medical provision. In its opinion, the court said it was up to doctors, not judges, to exercise medical judgment. The court did, however, suggest that the Texas Medical Board could do more to clear up confusion about when emergency abortions are allowed.
The Texas Medical Board offers guidance
In a process that stretched through the first half of 2024, the Texas Medical Board developed guidance for doctors who are considering when to offer emergency abortion treatment.
The new rule, approved June 21, specifies that doctors should document how they made the decision to offer an abortion within a week of performing the procedure. They will have to record what conditions the pregnant patient may have had and what diagnostic methods were used to determine the patient’s level of risk. When a formal complaint is made to the Texas Medical Board, it may task independent expert physicians with investigating a doctor’s decision to offer an abortion.
TMB’s rule does not provide a list of conditions that make abortion legal. TMB President Sherif Zaafran said any list would be incomplete and would fail to align with every unique medical situation.
The board also addressed physician concerns that were voiced in the course of the rulemaking process by underlining the fact that a health crisis does not have to be imminent for an abortion to be warranted.
Dr. Todd Ivey, a Houston-based OBGYN, said the rule ultimately did little to make him feel more secure.
“Do I feel more protected as a physician who may find myself in that position? No, I don't,” Ivey said. “I think the severity of the penalties will always be a deterrent.”
Legislative efforts
Ivey, who was a vocal advocate for physicians during TMB’s rulemaking process, said he will now turn his attention toward legislative action. First and foremost, he said he wants to see abortion decriminalized in Texas. Barring that possibility, he wants to see Texas law recognize exceptions for rape, incest and congenital and chromosomal anomalies.
He also especially takes issue with the portion of SB8 that allows private citizens to sue doctors who perform abortions.
“I think that the witch hunt law has to go away," Ivey said. "That is not a duty of a private citizen, nor should a physician have to answer to a private citizen for medical decisions."
During the 2023 legislative session, the Texas Legislature did create an affirmative defense for doctors who perform abortions when specific medical conditions are present. That includes ectopic pregnancy and previable premature rupture of membranes (PPROM), which is when someone’s water breaks far too early.
Some physicians, including Ivey, agreed with Zaafran that a longer list of allowable conditions would be insufficient and would not offer the protection doctors are hoping for. But others, like Dr. Andrea Palmer of Fort Worth, said such a list would be a “wonderful place to start.”
“I do think that there is a list of no-brainers where we could really take the heat off of physicians and give women the option to proceed with pregnancy as they choose,” Palmer said.
Meanwhile, Texas Attorney General Ken Paxton said on Monday — the anniversary of the Dobbs decision — that “the work is far from completed” in regards to abortion policy.
“The Biden Administration continues to use unlawful agency regulations and other levers of power to force states to institute its radical abortion agenda even when it violates state laws,” Paxton said in a statement. “I will never stop defending the sanctity of life against these unconstitutional attempts to undermine Texas’s life-affirming laws.”
The role of EMTALA
After Roe was overturned in 2022, the Biden administration issued guidance saying physicians must provide an abortion if one is required to stabilize a pregnant patient with an emergency condition.
The administration cited the 1986 Emergency Medical Treatment and Active Labor Act, or EMTALA, and said the guidance supersedes any state laws banning abortion. EMTALA applies to facilities that receive funding from Medicare or Medicaid.
In response, Texas sued the U.S. Department of Health and Human Services, saying its guidance amounted to an illegal abortion mandate. A judge initially sided with Texas in 2022, issuing a temporary injunction against the guidance. The 5th Court of Appeals affirmed that injunction in early 2024 before HHS asked the U.S. Supreme Court to review the case.
On Thursday, SCOTUS addressed a similar case out of Idaho. The Court dismissed the case as "improvidently granted" — an acknowledgement that SCOTUS should not have taken up the case. It also reinstated a lower court ruling that temporarily allows abortions to occur in Idaho order to protect the health of the mother, something Idaho state law does not permit.
Because the Court held off on deciding the core merits of the Idaho case, Texas' challenge to EMTALA remains pending, with the 5th Court of Appeals ruling still in effect.
"This pre-emption issue is not going away anytime soon and will most certainly return to this Court," Justice Ketanji Brown Jackson wrote in her opinion, which dissented insofar as the decision to dismiss was concerned.
Amanda Zurawski, the Austin woman who was the lead plaintiff in Zurawski v. Texas, weighed in ahead of the Court's expected decision in the Idaho case during a recent panel hosted by reproductive rights advocates. Zurawski experienced PPROM during a pregnancy before Texas clarified abortion protections for women experiencing the condition. She was septic by the time doctors intervened.
“If EMTALA [were] weakened, I just don’t think I would have made it, to be honest with you, because I was literally on the brink of death before I got the care that I needed,” Zurawski said. “I think I’m a really good example of how fragile some of these things are, and if we make it harder for doctors to practice, if we make it harder for patients to access health care, I think there’s going to be an inordinate amount of pain and suffering.”
