Texas abortion case puts doctors’ agency in treating pregnancy complications in the spotlight

The Texas Supreme Court on Tuesday heard a case that could end up deciding whether abortion in the state should be protected under its constitution when it’s provided for medical reasons. Also at stake is the issue of how much agency doctors have to exercise their medical judgment in the treatment of the most complicated pregnancies — a power that the case’s plaintiffs claim has been lost under Texas’ current abortion laws.

The case was brought by the Center for Reproductive Rights, which represents two OB-GYNs and 20 patients who were denied abortions because their doctors weren’t sure they were legally allowed to perform them, even if the doctors thought the procedure was medically appropriate to treat their patients’ serious complications. Some of the plaintiffs denied abortions said they were forced to carry a pregnancy to term only to have a stillbirth, watch their newborn die gasping for air, or wait to go into sepsis so that their condition was severe enough that the abortion was warranted.

The plaintiffs don’t blame their doctors. Instead, they are suing the state of Texas because they say the law’s wording, which bans abortions after six weeks except in case of “medical emergencies,” is too vague and doesn’t allow doctors to follow their medical judgment freely, leaving pregnant people vulnerable when facing complications that present serious risks to their own health or preclude the survival of the fetus.

The law, the plaintiffs say, does not explain the level of risk that a woman must face in order to be eligible for interventions, nor what kinds of fetal abnormalities incompatible with life might constitute an emergency. They argue this vagueness may leave doctors afraid to administer a medically necessary abortion for fear of legal consequences. Doctors who perform abortions considered unlawful in Texas face up to 99 years in jail and up to a $100,000 fine, as well as revocation of their medical license.

There’s no way to make the law sufficiently specific, according to the American College of Obstetricians and Gynecologists, which said in August 2022 that “there is no one-size-fits-all law that can take every individual, family, or medical condition into account.”

“That’s why it’s so important for doctors to be able to exercise their medical judgment in order to decide with their patients, when there’s an abortion necessary to preserve their health,” said Astrid Ackerman, a staff attorney with the Center for Reproductive Rights.

The state of Texas says the law does not deprive the doctors of the freedom to use their medical judgment, and says there is no reason for doctors to fear prosecution if they do so. “So long as the judgment is reasonable you should be fine under this law,” Texas Assistant Attorney General Beth Klusmann said during Tuesday’s hearing. Texas Attorney General Ken Paxton’s office did not respond to STAT’s request for comment.

While discussing the kinds of medical situations faced by the case’s plaintiffs, Klusmann said that cases in which the fetus would not have been able to sustain life after birth would not qualify as medical emergencies, as the health of the mother is not at risk. On the other hand, if the mother’s water broke prematurely and the fetus would not survive, that would qualify as an emergency.

After the case was brought before a lower court earlier this year, the judge issued an injunction in August, saying that doctors can’t face prosecution for providing required abortion care. The state of Texas, however, stayed the injunction, and the Texas Supreme Court is now tasked with deciding both on procedural matters — whether the women who were denied the abortions have the standing to bring on the suit as they no longer are pregnant, and whether Texas has sovereign immunity — and on the merit of the law.

The court doesn’t have to issue a decision on the latter question; it could simply limit its opinion to the procedural element of the case. But the court could uphold the lower court’s decision and say that doctors are legally protected when they exercise their best medical judgment or go even further, as the Center for Reproductive Rights is asking, and establish that the Texas constitution protects the right to receive abortion as necessary health care.

This is a right protected under the constitution of several states, including ones, such as North Dakota, that have otherwise restrictive abortion laws. “Texas in some ways is behind. And should follow what these other courts have done, which is to recognize that these types of restrictions are not working on the ground but also a violation of constitutional rights,” said Ackerman.

The judges’ decision could also be consequential for broader abortion access in the U.S., since the Center for Reproductive Rights has filed similar lawsuits in Idaho and Tennessee. “The Texas Supreme Court can be a very influential court for other state courts and there’s still some other states that have not recognized the damage that these laws have created,” said Ackermann.

If the court does not make a decision on the merit of the law but decides that the plaintiffs have standing to bring on the suit, the trial could go back through the lower courts, with the possibility that appeals of the decision — whatever it may be — mean that the case eventually ends up again at the state Supreme Court. Should the court decide the plaintiffs don’t have standing, the case would be dismissed and the injunction no longer applicable.