Fight Over Abortion Escalates in Texas

The latest legal fight over Texas’s 6-week abortion ban has drawn strong comments from groups on both sides of the abortion debate, with each casting blame on different entities for the lack of clarity on when pregnancy terminations are permitted under the law.

The law, known as S.B. 8, was signed into law in May 2021 by Gov. Greg Abbott (R) and bans abortions after about 6 weeks of pregnancy; it took full effect after the Supreme Court overturned Roe v. Wade in June 2022. The law is enforced by citizens of the state, who can sue those who perform or assist in the performance of abortions after cardiac activity has been detected for $10,000 per abortion, plus costs and attorneys’ fees. Physicians found to have violated Texas’s abortion laws — including those in S.B. 8 — face fines of at least $100,000, up to 99 years in prison, and revocation of their state medical licenses.

Clarification Sought Regarding Exceptions

The law does include exceptions for medical emergencies. However, the Center for Reproductive Rights (CRR), a pro-choice organization, sued the state in March over the law on behalf of affected physicians and patients, arguing that the law isn’t clear enough about when abortions are permitted.

Travis County District Court Judge Jessica Mangrum sided with CRR and issued a temporary injunction against the law on Aug. 4. “The court finds that there is uncertainty regarding whether the medical exception to Texas’s abortion bans … permits a physician to provide abortion care where, in the physician’s good faith judgment and in consultation with the pregnant person, a pregnant person has a physical emergent medical condition,” she wrote.

“The court further finds that … the uncertainty regarding the scope of the medical exception and the related threat of enforcement of Texas’s abortion bans has created an imminent risk that Physician Plaintiffs and other physicians throughout Texas will have no choice but to bar or delay the provision of abortion care to pregnant persons in Texas for whom an abortion would prevent or alleviate a risk of death or risk to their health (including their fertility) for fear of liability under Texas’s abortion bans.”

Decision Appealed

But Texas Attorney General Ken Paxton appealed Mangrum’s ruling to the state Supreme Court on Aug. 5. “Protecting the health of mothers and babies is of paramount importance to the people of Texas, a moral principle enshrined in the law which states that an abortion may be performed under limited circumstances, such as in the event of ‘a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy’ that places the pregnant woman ‘at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced,'” he said in a press release. The attorney general’s office “will continue to enforce the laws duly enacted by the Texas Legislature and uphold the values of the people of Texas by doing everything in its power to protect mothers and babies.”

“What we’re asking for is very simple,” Damla Karsan, MD, a Houston ob/gyn and one of the plaintiffs in the CRR lawsuit, said during a phone call at which a public relations person was present. “It’s not like we’re asking for elective abortions — to just open the doors. These are medical conditions that [we want to treat] to preserve life and limb of the mother or to spare the mother undue suffering.”

In the time since the Texas law was passed, “I had a couple of patients [whose pregnancies had] lethal anomalies — patients that didn’t want to continue the pregnancy for obvious reasons, and I couldn’t provide them with termination of pregnancy, which is something I’ve done in the past without any reservations,” she said. “So that’s been frustrating because of the heartache … These are wanted pregnancies.”

“The most classic case that really scares most of us more than anything else is premature rupture of membranes,” she said, and that condition can occur anywhere from 15 to 18 weeks of pregnancy — long before fetal viability. The pregnant patient usually becomes infected in that case, she noted, “and we really worry about them traveling” long distances for abortions under those circumstances.

“I had one patient who traveled 14 hours each way with a toddler in the car,” she continued. “And if somebody is at risk for getting sick, they can get sick in a hurry. So you really don’t want them out [in] the middle of nowhere, driving, potentially getting sick without knowing where to go get care.”

But because of the law, “a lot of [physicians] are waiting until the patient is so sick she’s in danger of dying” before they’ll perform an abortion, Karsan added. “Patients can end up with hysterectomies and other consequences; it’s just not good care. Most of what we’re trained to do is prevent those complications.”

Issue of Guidance Raised

But the National Right to Life Committee (NRLC), an anti-abortion organization, said the law is not to blame. “The law allows treatment for miscarriages (which are not induced abortions — S.B. 8 should not be applied in cases involving spontaneous miscarriages where the child has died in utero) and life-threatening situations that may arise during pregnancy,” the organization said in an emailed statement. “Doctors have always known how to treat these situations and any interpretation of the law otherwise is a misunderstanding of the law.”

“Any time laws involving medicine are passed, medical societies, medical boards, and hospitals will send out guidance on such laws. This was neglected in the case of Texas,” the statement said. “The law itself is not at fault, rather it is the lack of guidance.”

In the same email, NRLC included a statement from Texas Right to Life Legislative Director Rebecca Weaver, saying: “Inaccurate, pervasive, and politically-motivated media reporting, along with silence from medical associations, have misled doctors into believing that a pregnant woman must be at death’s door in order to intervene. This is not true of Texas law. The solution to this confusion is not to legislate from the bench but for the current law to be implemented appropriately by medical associations and not needlessly put pregnant women and their preborn children at risk.”

The American College of Obstetricians and Gynecologists (ACOG) expressed concern about the law’s repercussions.

“This case demonstrates the devastating consequences of legislative interference in the practice of evidence-based medicine,” Molly Meegan, JD, chief legal officer and general counsel at ACOG, said in a statement. “Treatment decisions should remain with the clinician and patient, not prosecutors and legislators who know nothing about the patient and have no expertise in medicine.”