Prior to oral arguments last Tuesday in the ongoing Texas Supreme Court case Zurawski v. The State of Texas, several medical organizations including the American College of Obstetricians and Gynecologists (ACOG), the American Medical Women’s Association (AMWA), and the Association of Black Cardiologists (ABC) have jointly filed an amicus curiae brief urging lawmakers to consider the importance of protecting maternal health as well as the rights of OB-GYNs in the state.
With many of the organizations joining the brief nationally recognized as leaders across a wide range of medical fields, the 11 organizations hold a total of almost 700,000 medical professionals, students, and corporate members.
Following Texas district judge Jessica Mangrum’s injunction on the state’s abortion ban to allow exceptions due to medical emergencies, the lawsuit forces the state to clarify what health/pregnancy issues may specifically render a mother legally eligible for a medical abortion.
Among its five points, the amicus brief expressed the importance of the availability of abortion as a medical imperative. “Pregnancy and birth can create significant health risks, which can lead to negative outcomes for pregnant patients. It is essential to the life and health of patients experiencing medical complications during pregnancy that abortion is available as a possible treatment.”
Additionally, the brief outlined common complications afflicting pregnant individuals, such as premature pre-labor rupture of membranes (PPROM), miscarriage or early pregnancy loss (EPL), excessive bleeding, gestational hypertension/preeclampsia, and placental abruption among many others.
The Weekly has previously covered both the state of Black maternal health in the US and Zurawski v. State of Texas’ effect on the Black maternal mortality crisis. Black mothers are five times more likely to die from conditions such as preeclampsia/eclampsia and cardiomyopathy and twice as likely to die of hemorrhage or embolism.
Likewise, classifying these life-threatening conditions as “medical emergencies” that permit abortion could potentially minimize Black maternal death.
Further into the document, the brief explains that the state is forcing clinicians to offer substandard care when medically appropriate procedures could be offered to a patient otherwise. “The bans are forcing clinicians to withhold medically appropriate abortion care or risk prosecution or loss of their livelihoods,” the brief reads. “Resulting in pregnant patients, like the Patient-Plaintiffs in this case, being unable to access care when faced with dangerous health conditions.”
Citing that 4 in 5 pregnancy-related deaths in the country are preventable, medical experts filing the brief present it as an imperative that the state establishes legal precedent that is more conducive to proper treatment for pregnant Texans. This includes ensuring accessibility to abortion in a medical emergency.
The lawsuit, filed by the Center for Reproductive Rights on March 6, asserts that pregnant women in Texas have been denied critical and sometimes life-saving medical care due to legal pressure imposed on medical professionals throughout the state by the abortion ban. Zurawski v. Texas calls for the state to clarify the scope of medical emergency exceptions allowed in the ban.
In August, Judge Mangum granted the plaintiff’s request for a temporary injunction that exempted pregnant women with life-threatening pregnancies or lethal fetal diagnoses from the abortion ban, which came about shortly after Roe v. Wade was overturned. The Texas attorney general’s office, in turn, appealed that ruling to the Texas Supreme Court. A statement issued by the attorney general’s office at the time of the appeal said:
“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.”
Oral arguments in the case wrapped up Nov. 28. During which, the court acknowledged the plaintiffs’ position that the statutes of the ban regarding exceptions due to medical emergencies need clarifying. However, sovereign immunity bars the plaintiffs from effective action and it must be waived in order to implement the necessary clarifications.
Beth Klusmann of the attorney general’s office argued that the law does not need further clarification, despite confusion from doctors and patients of what constitutes as life-threatening. “I can only point the court to what the legislature has said what the medical emergency exception means,” Klusmann says. “The life-threatening, physical condition that’s caused or aggravated by a pregnancy that puts a woman at risk of death or substantial risk of serious impairment of a major bodily function.” Klusmann denied that this may put medical providers in a precarious situation.
Molly Duane, the lawyer representing the plaintiff, pointed out that the suit is not a claim of unconstitutionality through a vagueness theory, but simply an ask of what the medical exception entails. Duane’s clients – which includes both patients and physicians – have additionally remained narrow in their suit and are only seeking further context.
While Amanda Zurawski’s testimony provided the basis of the plaintiffs’ argument, 19 other patients with similar stories and two physicians added their names to the suit. In Zurawski’s testimony, she states that the ban prevented her from minimizing physical and psychological damage sustained by a non-viable pregnancy and has affected her chances of becoming pregnant again.
“The preventable harm inflicted on me has already, medically, made it harder than it already was for me to get pregnant again,” the testimony reads. “The barbaric restrictions that are being passed across the country are having real life implications on real people. I may have been one of the first who was affected by the overturning of Roe in Texas, but I’m certainly not the last.”
Three bans simultaneously restrict abortion in Texas including a trigger ban, which outlaws abortion entirely; S.B. 8, the “vigilante” ban that prohibits abortion after about six weeks of pregnancy; and a pre-Roe criminal ban that some courts have deemed to be implicitly repealed.
As the proportion of Black obstetricians and gynecologists has decreased in recent years, Black Americans are additionally under threat of further exclusion from the national dialogue on reproductive health. While litigation in Zurawski v. The State of Texas continues, both the case and the public conversation surrounding the abortion ban in Texas indicate a critical turning point for reproductive health in the state, for better or for worse.
The Texas Supreme Court has not yet announced if it will accept or deny the state’s request to dismiss a part of or the entire case. In the event that the case is dismissed, the suit will return to district court for litigation.