Despite pleas from women and doctors, Texas may implement even more abortion restrictions

There are no more ways to fight Texas’ abortion bans in the state’s court system — that’s what Austin Kaplan believes after the last few years of doing exactly that.

Kaplan, an Austin-based civil rights attorney, represented Texas mom Kate Cox as she fought to get an emergency abortion when her non-viable fetus threatened her health and future fertility.

The Republican-dominated Texas Supreme Court ruled that Cox still didn’t have — in their non-medical expert opinions — a “life threatening condition” that put her “at risk of death” or “substantial impairment of a major bodily function.” That decision forced Cox to travel out of state to receive an abortion.

Kaplan has also led a long-standing legal fight against the Texas’ “bounty” abortion law (SB 8/the Heartbeat Act), passed in 2021, which two Texas courts ruled to be “unconstitutional,” but which the state Supreme Court has so far upheld.

SB 8 allows anyone in the country to sue anyone in Texas for $10,000 for aiding and abetting an abortion.

That includes the friends and family members of the pregnant woman as well as her medical providers. 

Since the US Supreme Court overturned Roe v. Wade, Texans “no longer have a constitutional right to choice, to reproductive freedom,” Kaplan said.

“We have multiple restrictive laws in Texas and the Texas Legislature just convened on Jan. 14 and they’re going to perhaps make it even more restrictive,” he warned. 

Republican members of the state legislature have introduced more bills seeking to restrict the availability of the abortion medications mifepristone and misoprostol, the latter of which is critical for saving the lives of women hemorrhaging after childbirth, but which is also used for abortion and miscarriage care. 

All of this means that if Texans support women regaining their rights, “the only option is to go to the ballot box” and vote out Republican lawmakers, Kaplan said.

“Unfortunately in Texas, we can’t have a statewide citizen-led ballot initiative,” to enshrine the right to an abortion in the state constitution like voters in other states have done, he said. 

The only way to achieve a constitutional amendment in Texas is for the Texas legislature itself to pass a joint House and Senate resolution first, and only then can a special election be held for voters to have their say.

In the time since SB 8 and Texas’ post-Roe total ban on abortion went into effect, at least three young, healthy women have died in Texas hospitals while experiencing miscarriages of much-wanted pregnancies.  

“These are unnecessary deaths for mothers who were excited to bring kids into their world.This is medieval stuff and shouldn’t be happening,” Kaplan said.

Two other healthy young women almost died when treatment for their unviable ectopic pregnancies was delayed for days by hospitals fearful of treating them due to Texas abortion’ bans.

Both lost one of their fallopian tubes due to the delays, impairing their future fertility. 

Legal challenges fall short

In response to Texas’ strict ban that made exceptions nearly impossible to access, Kaplan and the Center for Reproductive Rights filed a lawsuit in which they represented 20 Texas women harmed by the laws.

The case went all the way to the state Supreme Court, where the women begged the Court justices in Zurawski v. Texas to clarify the range of medical exceptions under the ban, so Texas women would no longer need to risk death before being allowed to receive a life-saving procedure.

Amanda Zurawski, the lead plaintiff in the case, almost died from a sepsis infection after her water broke at 18 weeks, long before her baby was viable. 

Because her fetus still had a heartbeat, she was forced to wait at home until her fever suddenly soared and she became incoherent before hospital doctors could treat her. But by that point, they had to desperately fight for three days to save her life. 

The infection collapsed Zurawski’s uterus and scarred her fallopian tubes so badly that she can never carry a pregnancy again. 

Another plaintiff in the case, Samantha Casiano, didn’t have the financial resources to leave the state after she learned that her fetus had a fatal condition called anencephaly, in which a fetus doesn’t develop part of its brain or skull.  

Because of Texas’ abortion ban, she was forced to carry the doomed pregnancy for months and then watch as her tiny baby daughter “gasped for air for four hours” until she died. 

“It was torture,” Casiano said.

“What kind of a modern society does that to someone on purpose,” asked Kaplan, who was in court for the hearing. ”How can that possibly be right?”

He said that when Casiano was telling the story about her baby’s birth and death to the Supreme Court justices, she was so upset “living through that moment again that she vomited on the stand.”

Nevertheless, the Texas Supreme Court was not moved.

The plaintiffs were not asking for the abortion bans to be declared unlawful, just to give clearer guidance to doctors about whether they could intervene to preserve the health of the mother before she was close to death.

The court refused to clarify the abortion ban’s “medical emergency” exception language, insisting that the language of the law was clear enough.

A climate of fear for doctors

Multiple doctors who Courier Texas spoke to disagree with the court’s assertion that the law is clear, and stressed that the law’s lack of clarity plus the severity of the punishments for physicians who break it — up to 99 years in prison, the loss of their medical licenses, and a $100,000 fine — have created a climate of fear for medical professionals who care for pregnant women.

“There is so much grey zone” about the abortion law still, said Dr. Emily Briggs, a family physician who provides obstetric care in Central Texas.

“Doctors feel just really under threat,” added Leah Stewart, an Austin-based health care attorney who advises doctors. “[They ask] what happens if Attorney General Ken Paxton comes after them and I can’t tell them that won’t happen. I can’t give them any sort of magical protection … They’re virtually all considering that they may have to leave.”

The state legislature did finally add some language to the abortion ban statute in 2023, allowing doctors to step in and perform a procedure for women like Zurawski, whose waters break too early, rendering the fetus unviable.

They also added an exception for some ectopic pregnancies — but not all.  Still, doctors who perform abortions on patients who have premature rupture of membranes (PROM) or ectopic pregnancies can still be charged with the state’s full scope of punishments.

The legislature has only given these doctors a right to defend themselves — called an affirmative defense —  if they can demonstrate that they used “reasonable medical judgement” in performing an abortion under the circumstances.

Lack of legal help for miscarriages

Dr. Nancy Binford, an Austin-based OBGYN points out, however, that sadly lawmakers have done nothing to address the confusion around the legality of care for miscarriages. 

OB-GYNs in Texas hospitals are often still so terrified that they’ll be prosecuted by Paxton that they won’t treat women bleeding heavily from miscarriages quickly enough to save their lives.

Portia Negumezi, 35, a Houston mom of two, died just 10 hours after arriving at Houston Methodist Sugarland Hospital, while bleeding so profusely that she was passing blood clots the size of grapefruits and required two blood transfusions.

Before Texas passed its abortion bans, doctors could promptly do a quick standard procedure called a D&C (dilation & curettage) to empty the uterus of the pregnancy remains which would stop the hemorrhaging, according to Dr. Binford.

But now, “if you decide to do a surgical procedure (like a D&C), then all these red flags go up,” she said.

That’s why OB-GYNs like Dr. Todd Ivey, who is Houston-based, pray that doctors can convince Republican lawmakers to “let us help them make common sense laws” around abortion restrictions.

“I don’t think they are malicious people,” he said. “But lawmakers don’t go to medical school and they don’t always understand these things. And just because you’re a physician in the Texas legislature doesn’t mean you understand women’s healthcare.”

Republican legislators haven’t been at all deterred so far in their quest to restrict women’s health care procedures and medications, despite a huge 56% spike in maternal mortality in Texas from 2019 to 2022.

For example, Republican lawmaker Pat Curry from Waco has proposed House Bill 1339, which would classify misoprostol and mifepristone as “controlled substances.” That means they would have to be kept in a passcode-protected storage lockers outside of labor and delivery rooms.

“It’s dangerous and it puts women at unnecessary risk,” said Dr. Ivey, who explains that misoprostol is essential to stop women from bleeding to death in less than 15 minutes if they hemorrhage after childbirth.

That’s why, Dr. Ivey insisted, the medication needs to be easily accessible to OB-GYNS during childbirth deliveries.

Do Republican lawmakers care about more deaths?

Lt. Governor Dan Patrick, who oversees the Republican-dominated Senate, planted a seed of hope for Texans who fear for the lives of pregnant women when he said last month, that he thought lawmakers “need to clarify any language so that doctors are not in fear of being penalized if they think the life of the mother is at risk.”

Stewart, the Austin-based attorney, thinks Patrick’s words are “meaningful” but she doesn’t know whether he will prioritize getting the law clarified this session.

Kaplan isn’t buying what Patrick said, though. 

“This issue was not on his priorities list. That said, I hope he proves me wrong and takes action to stop this unnecessary danger.”

Kaplan doesn’t believe that anti-abortion Republican lawmakers care if more women die, despite warnings from 111 Texas OB-GYNs who sent a letter urging state lawmakers to change the law. 

“The law is obviously, as a practical matter, not working, because doctors can’t provide the care,” he said. “The doctors are clearly telling the legislature this. We filed multiple lawsuits to alert the public to this.”

“If the legislature passed a law that caused oil field operators to cap all their wells and stop drilling, you better believe there would be a special session called to fix that law because the law is not working as intended,” Kaplan added.

Since the Texas courts and lawmakers won’t make any major change to the law, the only way for Texans to stop women from dying from pregnancy complications is to “vote the legislators out,” reiterated Kaplan. 

“Unfortunately we did not see that [in November].” 

This story was originally published by the Courier Texas.