Texas Supreme Court hears case challenging state's near-total abortion ban

Two years ago, Kaitlyn Kash remembers clutching her early-swollen belly in the Austin airport, feeling her baby move amid a complicated pregnancy.

"I just remember ... wanting to break down on the floor and cry," she said. "But I had to board a plane."

Kash and her husband were thrilled when they learned she was pregnant in August 2021. They wanted a second child for more than a year. They'd moved into a bigger house, given books on big-brotherhood to their son and made plans to announce the pregnancy on Halloween.

But two months later, the couple received a devastating diagnosis: Their unborn baby had severe skeletal dysplasia, a genetic disorder that affects the development of bones, joints and cartilage. Typically, the condition is not detectable at 13 weeks, but this case was so severe that it was obvious on an ultrasound, her doctor said.

The baby's likelihood of surviving was low, and even if it made it to birth, it was likely to suffocate shortly afterward, the couple's maternal-fetal medicine specialist told them. The baby could also suffer broken bones while in Kash's womb, among other severe complications.

Had it been two months earlier, Kash's doctor could have given her the option to terminate the pregnancy in Texas. But Senate Bill 8 — a 2021 law that banned abortions once embryonic cardiac activity could be detected, generally around the sixth week of gestation, before most women know they are pregnant — had just gone into effect. The doctor recommended the couple seek "a second opinion, but outside Texas." The Senate bill, one of the most restrictive state abortion laws, skirted federal protections for abortion by relying on private citizens to enforce it through lawsuits against abortion providers and anyone involved in aiding an abortion.

So the couple bought tickets to Kansas, hoping to spare their unborn child the painful outcomes the doctor described.

"My baby was going to die regardless," Kash said. "I just chose when."

Now Kash is among 20 women suing Texas, demanding that the state clarify medical exceptions to its near-total abortion ban after they were denied abortions despite severe and dangerous pregnancy complications.

Kash and other plaintiffs in Zurawski v. Texas allege that the state's vague language and “non-medical terminology” in its laws leave doctors unable or unwilling to administer abortion care, forcing patients to seek treatment out of state or wait until after their lives are in danger.

The Center for Reproductive Rights, which filed the lawsuit in March, also argues that state laws hinder necessary obstetrical care.

The Texas Supreme Court is scheduled to take up the case Tuesday.

More:How to watch the Texas Supreme Court hearing on the abortion bans via livestream

For Kash, women's humanity is at stake.

"What's really important to understand is that there are two humans in the situation," she said. "There's the mother, and there's the baby. And what's currently happening is that the mother is disposable, and my physical health, my mental health, all of these things don't matter. It is making sure that baby gets delivered even if they're going to die."

Texas abortion laws and medical exceptions

The lawsuit focuses on the medical exceptions to two Texas laws passed from 2021 to 2023.

In September 2021, SB 8 went into effect in the state, banning abortion once cardiac activity has been detected. In December 2021, a state district judge ruled that the law violated the Texas Constitution, but it was allowed to remain in effect while its constitutionality was under review in several court cases.

More:Five women sue Texas, say the state’s abortion ban put their lives and fetuses at risk

Then, after the U.S. Supreme Court overturned Roe v. Wade in June 2022, the state's "trigger law" (House Bill 1280) went into effect, prohibiting abortion from the moment of fertilization.

The only exceptions to these laws are in cases in which a pregnant patient risks death or “substantial impairment of major bodily function." Physicians who violate the laws face severe penalties, including fines of more than $100,000 and first-degree felony charges, punishable with up to life in prison. 

The "incredibly vague language" of these laws and the threat of repercussions cause providers to be "appropriately apprehensive" of caring for patients in certain situations, said Dr. Leah Tatum, an OB-GYN at Austin Regional Clinic and a fellow at the American College of Obstetricians and Gynecologists.

"Medicine is not black and white," Tatum said. "There are lots of situations that are gray, and who gets to be the deciding factor in this? Who gets to decide what is necessary for this patient or not?

"Abortion is an absolutely necessary part, an essential part, of reproductive health care. And it should be viewed that way. To limit access to this important part of reproductive health care is dangerous."

Since the lawsuit was filed, Texas lawmakers have tweaked the Texas Health Code to give an affirmative defense to doctors who use "reasonable judgment" to treat pre-viable premature ruptures of membrane (a kind of miscarriage) and ectopic pregnancies. This means doctors could still be charged, sued or arrested but would have a defense in court for their actions. The treatment of such cases was already not considered an abortion under Texas law.

How Zurawski v. Texas landed before the state Supreme Court

The Center for Reproductive Rights filed the suit in a Travis County state court with five patient plaintiffs and two Texas OB-GYNs. Eight more women joined the suit in May.

More:Tragedies mount for women with ill-fated pregnancies under Texas' abortion bans

The case is named for its first plaintiff, Austin resident Amanda Zurawski, who spoke with the American-Statesman in October 2022 about her case. Zurawski and her husband were devastated when, at 17 weeks of pregnancy, they learned their unborn baby would not survive. After a premature miscarriage began, her doctors said she would need to wait to go into labor on her own, and she did — until she nearly died of sepsis. The petition states that one of her fallopian tubes remains permanently closed as a result of the damage.

The petitioners won an injunction from District Judge Jessica Mangrum after a July hearing. However, Attorney General Ken Paxton immediately appealed the case to the state Supreme Court and abortion bans were restored until the case is heard. 

With seven more women, including Kash, joining the suit Nov. 14, the case now has 20 patient and two physician plaintiffs. They represent “the tip of the iceberg,” the petition says.

The number of plaintiffs "shows these are not isolated incidents, that this has been continuing to happen to women across Texas," said Nicolas Kabat, an attorney at the Center for Reproductive Rights. "Only 20 of them joined our case, but not everyone who has a trauma like this is willing to come forward and participate in a lawsuit."

Along with those 20 women, two Texas OB-GYNs — Drs. Damla Karsan and Judy Levison — are suing on behalf of their patients. Levison, a professor at Baylor College of Medicine, retired from clinical practice after the fall of Roe v. Wade in 2022 because “Texas’s abortion bans have made it impossible for her to provide comprehensive, high-quality reproductive care to her patients,” according to the petition. 

'We're not going to leave Texans behind'

The Texas Supreme Court will hear oral arguments for Zurawski v. Texas in Austin on Tuesday. The high-stakes case will decide whether the state’s abortion ban laws clearly outline the medical exceptions that allow patients to terminate a pregnancy to save their life.

The hearing has drawn involvement from stakeholders in Texas and the rest of the country through amicus briefs, which let people who are not a party to a lawsuit but who have a strong interest in its outcome provide perspective.

A coalition of attorneys general for 20 states and Washington, D.C., filed an amicus brief in support of the plaintiffs Nov. 13, writing that Texans denied emergency abortion care often travel to their states, leading to health risks for the patients and "additional pressures" on their states' "already overwhelmed hospital systems."

Forty companies and individuals doing business in Texas also signed a brief stating that the ambiguity of the laws has a substantial negative effect on the state's residents as well as its economy, including an estimated $14.5 billion in lost revenue each year.

"The confusing medical exceptions are increasing the cost of business in Texas, driving away top talent, risking potential future business coming to the State, and threatening a diverse workforce," states the brief, spearheaded by Austin-based dating company Bumble.

The brief also cited a 2021 survey that found 64% of college-educated workers in the U.S. would not apply for a job in a state that had an abortion ban such as Texas, and that nearly half would consider moving out of a state where a similar ban was passed. The survey was conducted by PerryUndem, a nonpartisan public opinion research firm specializing in health care and gender equity issues, through the national survey platform YouGov.

Attorney Beth Klusmann of the Texas attorney general's office will defend the state and the Texas Medical Board while Center for Reproductive Rights attorney Molly Duane will represent the petitioners. The Texas attorney general's office did not respond to the Statesman's repeated requests for comment on the case and the briefs.

Kabat, an attorney for the Center for Reproductive Rights, is hopeful that the Texas Supreme Court will uphold the District Court's ruling against the enforcement of the abortion bans. But he says they won't give up the fight even if the outcome goes against the plaintiffs.

"It's impossible to say what the Supreme Court might do, but regardless of the outcome, we're not going to leave Texans behind," he said. "We're going to be here to continue this fight for their rights, for standard health care."

Kash said she is fighting not only for her rights, but the rights of her daughter, who was born in July. But she said she's hopeful.

"Despite everything that happened, I keep being optimistic that at some point we will go back to reason and at some point there will be a court or a lawmaker that will get us to a state of women being equal citizens," she said. "And I'm proud to be standing by all the other women that can or can't be in the lawsuit."