Texas Supreme Court Hears Oral Arguments in Key Abortion Ban Case

The Texas Supreme Court heard oral arguments in a case that claims the state’s abortion laws are too restrictive.
Texas Supreme Court Hears Oral Arguments in Key Abortion Ban Case
(L-R) Justice Rebeca Aizpuru Huddle, Justice Brett Busby, Justice Debra Lehrmann, Chief Justice Nathan L. Hecht, Justice Jeff Boyd, Justice Jimmy Blacklock, Justice Jane Bland, and Justice Evan A. Young, of the Texas Supreme Court, arrive to hear litigators make their arguments at the Texas Supreme Court in Austin, Texas, on Nov. 28, 2023. (Suzanne Cordeiro/AFP/Getty Images)
Tom Ozimek
11/28/2023
Updated:
11/28/2023
0:00

The Texas Supreme Court heard oral arguments on Nov. 28 in a case that claims the state’s abortion laws are too restrictive and harm women because doctors fearful of losing their licenses refuse to perform the procedure in nearly all circumstances.

The laws in question, adopted after the landmark 2021 U.S. Supreme Court overturning of Roe v. Wade, prohibit and criminalize abortions in all cases except when the mother’s life is in danger under a “medical emergency” exception.

Pro-abortion rights groups have argued that Texas’ abortion bans contain non-medical terminology and conflicting language that make it unclear when doctors are allowed to perform abortions under the laws’ “medical emergency” exception, stoking fear and confusion among doctors.

Physicians who violate the state’s abortion laws face revocation of their state medical licenses, fines of at least $100,000, and up to 99 years in prison, with pro-abortion rights groups arguing that the legal risks combined with the laws’ unclear language deter doctors from performing abortions even in cases where the mother’s life is in danger.

Key Arguments

During the Nov. 28 oral arguments before the Texas Supreme Court, attorneys on behalf of the State of Texas argued that the “medical emergency” exception is clear and that the plaintiffs’ battle should take place not before the court but at the state legislature to get the laws changed.

State attorney Beth Klusmann argued that the plaintiffs want the high court to effectively overturn the will of Texans as expressed through the legislative process and make it “so that there really will never be a circumstance in which a woman is unable to obtain an abortion.”

Ms. Klusmann argued that the law allows physicians to use their professional judgment to decide when the law allows for an abortion.

Attorney Molly Duane, arguing on behalf of the plaintiffs, called the last two years an “aberration” from a long practice in Texas that allowed physicians “broad discretion” to provide abortions when they deemed it “necessary” to preserve the lives of their patients.

Ms. Duane argued that, even though the law technically has medical exceptions to the bans, “no one knows what it means, and the State won’t tell us.”

Asked by a judge on the high bench why the plaintiffs weren’t seeking a declaration of the abortion laws’ unconstitutionality based on the “vagueness” doctrine, Ms. Duane replied that this would have meant that the entire law could be struck down, which is not the wish or intent of the plaintiffs. Instead, she said they’re seeking additional “clarification” about what the “medical emergency” exception really means.

Chief Justice Nathan L. Hecht, of the Texas Supreme Court, looks on as litigators make their arguments in Zurowski v. State of Texas, at the Texas Supreme Court in Austin, Texas, on Nov. 28, 2023. (Suzanne Cordeiro/AFP/Getty Images)
Chief Justice Nathan L. Hecht, of the Texas Supreme Court, looks on as litigators make their arguments in Zurowski v. State of Texas, at the Texas Supreme Court in Austin, Texas, on Nov. 28, 2023. (Suzanne Cordeiro/AFP/Getty Images)

In closing arguments, Ms. Klusmann contended that the case is really about medical malpractice in specific instances where the plaintiffs—women who said they were denied abortions despite facing severe and dangerous pregnancy complications that threatened their health and lives—may have been given inadequate medical treatment by physicians.

“If, as she said, a woman is bleeding or has amniotic fluid running down her legs, the problem is not with the law, it’s with the doctors,” she said. “That woman would clearly qualify for the medical emergency exception, and so if she has to come to court to make that happen, then that is not the state’s fault.”

“What the legislature has done is chosen to value unborn life and prohibit abortion in all circumstances unless that life is going to conflict with the life of the mother,” she said.

“We’re just trying to identify when it’s appropriate to end the life of an unborn child and the legislature has set the bar high but there’s nothing unconstitutional with their decision to do so,” she added.

Arguing on behalf of the plaintiffs, Ms. Duane said that the women don’t want to sue the doctors because they don’t see them as having done anything wrong except following a law that is too vague and overly restrictive.

“As all of our patient plaintiffs have testified to, their doctors didn’t know what to do, their hands were tied by the law,” she said. “The state’s own expert acknowledges that physicians should not be waiting until death is imminent, yet they are, in her words, ‘providing substandard care’ because of the lack of clarity in the law.”

Following closing arguments, the court adjourned in the case, which is known as Zurawski v. State of Texas.

Background

A group of five women who say they were denied abortions despite facing severe and dangerous pregnancy complications that threatened their health and lives, sued Texas in March 2023 over the abortion laws.
The women, who are being represented in the case by the Center for Reproductive Rights, were joined in the lawsuit by two Texas obstetrician-gynecologists, while an amended complaint filed in May 2023 added more plaintiffs to the case and asked a state court to grant a temporary injunction to block the abortion bans while the case proceeds.

The state of Texas, meanwhile, called to dismiss the case, arguing that the laws were clear enough about what constitutes a “medical emergency” exception. State attorneys previously said that the lawsuit was brought because the 13 women were not satisfied with the medical care they received. The state argued that what happened to the women was the responsibility of their doctors, not Texas abortion laws.

“The plaintiffs simply do not like Texas’ restrictions on abortion. This court well knows the purpose of this court is not to legislate or to issue advisory opinions. In fact, the Texas Supreme Court has upheld that courts are prohibited from doing so,” Assistant Texas Attorney General Amy Pletscher told the judge in July.

Then, in August 2023, a Texas district judge in August 2023 issued an injunction temporarily blocking the state’s abortion bans and allowing doctors to perform the procedure on women who have what she called “emergent medical conditions.”

Travis County District Court Judge Jessica Mangrum defined “emergent medical conditions” as physical complications or infections that make pregnancy unsafe, exacerbated medical conditions that cannot be treated during pregnancy, and fetal conditions where survival is unlikely after birth.

She also ruled that any state official who seeks to enforce Texas’s abortion bans against a doctor who provides the procedure after the doctor had determined that the pregnant mother has a “physical emergent medical condition” would be exceeding their legal authority.

The state of Texas immediately appealed the ruling to the Texas Supreme Court, blocking the injunction from taking effect.

The Center for Reproductive Rights then filed an amended complaint on Nov. 14, 2023, adding seven more Texas women as plaintiffs, resulting in Tuesday’s first oral arguments in the case before the Texas Supreme Court.