Texas AG’s office argues women should sue doctors — not state — over lack of abortion access

by Saul Elbein - 11/28/23 2:13 PM ET

Lawyers in the Texas attorney general’s office said Tuesday that women should sue their doctors, not the state, over a lack of access to abortion in defending the state’s strict law.

Beth Klusmann of the Texas Attorney General’s Office made that point in oral arguments before the state Supreme Court in a case challenging Texas’s abortion ban, which bars doctors from providing abortions after a fetal heartbeat is detected — typically around six weeks into pregnancy — with exceptions only for cases in which the life of the mother is at risk.

“If a woman is bleeding, if she has amniotic fluid running down her legs — then the problem is not with the law,” Klusmann said. “It is with the doctors.”

Klusmann was responding to plaintiffs in the case, who had charged the legislation had plunged the state into a “health care crisis.”

The lawsuit in Zurawski v. Texas was brought by 22 women who said that state law had forced them to carry nonviable and dangerous pregnancies to term — in other words, to go through the ordeal of pregnancy with a fetus that would not survive, and that in many cases was putting them at serious risk.

The suit brought by the Center for Reproductive Freedom charges that many of the 22 women were denied care because, despite the severity of the damage that the nonviable pregnancy was doing their body, doctors told them they weren’t quite sick enough for it to be clearly life threatening.

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Forty businesses have also signed a brief in support of the suit — arguing that ambiguities in the law have incurred a substantial financial cost: nearly $15 billion in lost revenues, and businesses and employees leaving the state.

The plaintiffs argued that the 2021 law flew in the face of a long history of doctors being allowed to determine when abortion was necessary to preserve the health of the mother under state law — even when the procedure, in general, was not legal.

They contended that while the legislation included language intended to allow abortions in life-threatening cases, it was so vaguely worded — and its penalties so harsh — that it amounted to a total ban that threatened the lives of mothers already carrying babies who would not survive.

“The last two years are an aberration from a centuries-long practice in Texas that allowed physicians broad discretion over when abortion was necessary to preserve their patient’s lives,” said Molly Duane, an attorney for the Center for Reproductive Rights.

For most of Texas history, Duane argued to the court, doctors in the state were allowed to perform abortions if they had a “good faith” belief that they were necessary to save the life of the mother.

That changed in 2021, when the state Legislature passed Senate Bill 8, which exposed Texas doctors to harsh penalties — potential life in prison, loss of their medical license and hundreds of thousands of dollars in fines — if they perform an abortion on a fetus with a heartbeat.

“The abortion bans, as they exist today, subject physicians like my clients to the most penalties imaginable,” Duane said.

That ban holds even for complicated pregnancies where the fetus would not survive birth — something that in August caused a district judge to block the prosecution of doctors who performed abortions in those cases.

The same day that ruling came down, the office of Attorney General Ken Paxton (R) appealed it to the state Supreme Court — effectively keeping the ban in place.

Paxton’s office argued the suit was unnecessary, because the language in the ban allowed abortions in the case of “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that put the mother at risk of death or serious physical impairment.

In court, the state argued that the 22 women suing the state were the wrong plaintiffs going after the wrong target.

First, Klusmann argued that the women had no standing to challenge the 2021 law — because it targeted doctors, not pregnant women themselves.

Second, she argued that women with complicated and dangerous pregnancies should have no problem obtaining abortions under the law, and that they should be taking up their grievances with the doctors who had denied them the procedures they now argued were medically necessary rather than the state.

A woman risking death if she doesn’t get an abortion, Klusmann argued, would clearly “qualify for a medical emergency exemption. And so, if she has to come to court to make that happen, that is not the state’s fault.”

Judges honed in on that point, which opened the door to the broader argument that the women have no standing to bring a suit against the state because the people who injured them are their doctors.

In the case of a woman denied a medically necessary abortion, “why isn’t she suing her doctors? That sounds like medical negligence to me?” Justice Brett Busby asked.

“I disagree, Your Honor, because, as all of our patient-plaintiffs have testified, their doctors didn’t know what to do. Their hands are tied. The law acknowledges that physicians should not be waiting until death is imminent — and yet they are,” Duane said.

She gave the example of Amanda Zurawski, the woman who gave her name to the wider legal challenge — one of three dozen with similar cases who joined the suit.

In August 2022, Zurawski’s doctors told her that because of a problem with her cervix, her pregnancy — then at nearly 18 weeks — was no longer viable.

Because doctors could not perform an abortion, they sent her home, where her water broke. She rushed back to the emergency room — and, according to the legal complaint, found herself in a terrible limbo.

Because the fetus still had a heartbeat, and because she was not yet showing the signs of acute infection that would soon almost kill her, the doctors told her they had no option but to send her home, the complaint said.

“At this point, absent Texas’s abortion bans, a patient in [Zurawski’s] situation would have been offered an abortion or transferred to a facility that could offer the procedure,” the complaint read.

“But [Zurawski] was offered neither because the hospital was concerned that providing an abortion without signs of acute infection may not fall within the Emergent Medical Condition Exception in Texas’s abortion bans.”

So, according to the complaint, Zurawski spent nearly a week at home, growing gradually sicker, until her husband finally brought her back to the emergency room, where she was diagnosed with sepsis — a life-threatening chain reaction of infection cascading through the body.

By the time the baby — who didn’t survive — was delivered, and the series of infections had run its course, her uterus was so severely scarred that it threatened her ability to have future children, the complaint said.

Another woman, Cristina Nunez, said she nearly died of kidney failure while her hospital waited for her to become sick enough to legally justify an abortion.

Other plaintiffs described having to travel out of state to get abortions that would once have been uncontroversial in Texas — or, in some cases, being unable to do so because in-state delays had kept them waiting so long that out-of-state doctors wouldn’t perform an abortion either

For the state, Klusmann argued that these cases — which the Legislature sought to avert with its language about protecting the life of the mother — did not rise to the level of a constitutional issue.

“The Legislature decided to value unborn life and prohibit abortion in all circumstances unless that life is going to conflict with the life of the mother — we’re just trying to identify when it’s, when it’s appropriate to end the life of an unborn child,” she said.

“The Legislature has set the bar high, and there’s nothing unconstitutional about their decision to do so,” she added.

“What is your response to [Duane’s] argument that she, that these plaintiffs do not want to sue their doctor because they feel their doctor has done nothing wrong?” asked Justice Debra Lehrmann.

“That is their choice,” Klusmann said. “They don’t have to actually obtain damages [from the doctors] if they don’t want to. But if they wish to gain clarity of law through perhaps a medical malpractice claim, that’s their choice.”

“But we can’t force them to do it,” she added.