May 31, 2024 - News

Texas Supreme Court rejects challenge to abortion ban

Photo of a Pro-abortion demonstrators near the Texas Capitol building in 2022 in Austin

Abortion rights activists demonstrate near the Texas Capitol in 2022. Photo: Suzanne Cordeiro/AFP via Getty Images

Pregnant Texans with severe complications likely will continue to seek abortions outside the state after the Texas Supreme Court declined to clarify when a medical emergency justifies an abortion.

Why it matters: While the Texas abortion ban includes a few exceptions, the Friday ruling against 22 women who suffered complications during pregnancy did not provide the clarity patients and doctors sought.

  • The ruling places the onus largely on doctors to make decisions and fails to protect women's health as the exceptions intended, Emily Berman, a professor at the University of Houston Law Center, tells Axios.

The big picture: Under Texas' abortion ban, which took effect in 2022, a licensed physician can perform an abortion only if the pregnant person's life is at risk or if the pregnancy "poses a serious risk of substantial impairment of a major bodily function." The provider must also attempt to save the fetus.

Catch up quick: The case, filed in March 2023, didn't seek to overturn Texas' ban but to clarify when medical exceptions are allowed under the law.

  • Critics of the ban have said the ambiguity over when exceptions are allowed has contributed to confusion among doctors — who can be charged with a first-degree felony if they violate the law.
  • They have also argued the confusion and possibility of criminal liability endanger the lives of pregnant women, who could be denied necessary and potentially life-saving abortions.

Meanwhile, the Texas Medical Board proposed guidance on exceptions, but doctors, lawyers and advocates said it isn't explicit enough.

What they're saying: "This leaves us right where we were when Roe was overturned," Berman says. "Any physician knowing that this law is on the books is going to be risk averse because the penalties are so profound … Doctors are reluctant to interpret the law themselves, for fear of coming out on the wrong side of it."

State of play: A Democratic state district judge in Austin ruled last summer that the state could not prosecute doctors who terminated a complicated pregnancy in their "good faith judgment." But, the order was almost immediately blocked through an appeal by Texas Attorney General Ken Paxton.

  • The all-Republican Texas Supreme Court ruled Friday the lower court's ruling was flawed because "all pregnancies carry risks."
  • But the state could still make amendments to the law that better indicate to doctors when an abortion is going to be permissible, as it did with ectopic pregnancies, per Berman.

What we're watching: Doctors and hospitals can decide that their patients' conditions satisfy the exception in the law. And if they are prosecuted for it, they can raise the exception as a defense in the case against them.

  • "Unfortunately, getting more details from the judicial system might require that kind of prosecution and look at it sort of on a case-by-case basis, what doctor's decisions are upheld and which ones aren't," Berman says.

What's next: Federal cases like those over mifepristone and the EMTALA could impact access to abortions in the state.


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