Time Is Running Out for Texas Republicans to Clarify Exceptions in Their New Abortion Law

Time Is Running Out for Texas Republicans to Clarify Exceptions in Their New Abortion Law

Time Is Running Out for Texas Republicans to Clarify Exceptions in Their New Abortion Law

With just a few weeks remaining in Texas’s legislative session, the GOP has yet to clarify what constitutes a medical emergency in its extreme abortion ban.

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Amanda Zurawski and her husband were “beyond thrilled” to soon welcome their first child, a daughter named Willow, last fall following more than a year of “grueling” fertility treatments. However, things took a tragic turn for the Texas couple. During her second trimester, Zurawski began experiencing odd symptoms and, after a medical exam, learned that she had dilated prematurely because of a condition known as cervical insufficiency. Shortly after the diagnosis, her water broke at just 17 weeks, leading doctors to inform the aspiring mother that the loss of her daughter was inevitable.

While Zurawski needed an immediate pregnancy termination last August to protect her life—now acutely vulnerable to deadly complications—Texas imposed a full criminal “trigger” ban that month that carried punitive consequences for providers, including revocation of their license, a penalty of at least $100,000 per violation, and up to 99 years in prison. With no exceptions for cases of rape, incest, or severe fetal abnormality, the law holds a carve-out for medical emergencies, vaguely defined as “risk of death or a substantial impairment of a major bodily function.” Texas hospitals and doctors have been erring on the side of extreme caution to avoid liability by either failing to intervene completely or waiting until a patient’s life is at immediate risk—or as one Texas physician put it, “on death’s door.”

Until she was ill enough for the hospital’s ethics board to consider her life in danger, Zurawski’s doctors’ felt their hands were tied by the law. And traveling out of state for care wasn’t a safe option for the 35-year-old Austin woman, who was instructed to stay within a 15-mile radius of the hospital: With the nearest clinic in Albuquerque, N.M., an 11-hour drive from home, developing an infection in the middle of vast swaths of the Texas desert could have meant certain death. In Texas today, residents must travel an average of nearly 500 miles to obtain care.

“I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child’s—or both,” Zurawski testified before a congressional panel on reproductive rights in a post-Dobbs America in late April. “For days, I was locked in this bizarre and avoidable hell. Would Willow’s heart stop, or would I deteriorate to the brink of death?”

Her health quickly eroded. After developing a high fever and dangerously low blood pressure, Zurawski was rushed to the ICU and diagnosed with septic shock, a blood infection that can lead to death within an hour. Zurawski stabilized just enough to deliver her stillborn daughter, before crashing again and spending the next three days in the ICU where medical professionals battled to save her life. She is now left with emotional and physical scars, including the loss of one fallopian tube, that have made it difficult to have another child.

Zurawski’s devastating story is one that is becoming all too common in Texas, the largest—and first—state in the country to outlaw abortion. Nearly a year prior to the demise of Roe v. Wade, Texans began to feel the impact of severe abortion laws when the state’s six-week “bounty hunter”–style ban took effect. Left in the wake of the state’s draconian bans is a trail of horrific stories about the grisly and life-threatening medical complications—including sepsis, organ failure, and hemorrhaging—pregnant patients must face before receiving pregnancy termination intervention, underscoring the need for a repeal of the state’s ban, or at the very least clarification of its medical emergency clause.

In her testimony before the Senate Judiciary Committee, Zurawski shared her harrowing story and directly addressed Texas Republican US Senators John Cornyn and Ted Cruz, saying they held the “power” to fix this. (Cornyn, while acknowledging that she should not have had to wait to receive abortion care, later minimized the traumatizing ordeal as a case of medical malpractice rather than an institutional problem directly inflicted by the anti-abortion laws, saying Zurawski had a “good lawsuit” on her hands.)

“I nearly died on their watch,” she said with both senators absent from the room at the time. “And furthermore, as a result of what happened to me, I may have been robbed of the opportunity to have children in the future.”

However, while the senators ardently support abortion restrictions by continually voting against bills that would legalize care, Texas legislators crafted the state’s abortion law. The power to change the laws, at present, lies within the Texas Legislature, which convened its biannual session in January. Onlookers were cautiously optimistic that the Republican-dominated body would potentially consider measures that help clarify the nebulous maternal health exceptions, especially in light of the myriad medical studies and media reports highlighting the grave dangers they have posed for Texas patients.

Last fall, Texas Republican Governor Greg Abbott recognized that pregnant patients facing complications were not receiving timely intervention under the state’s abortion bans, as the language in the law gave doctors pause. “Something that really does need to be done [during the legislative session] is clarify what it means to protect the life of the mother,” Abbott told a Dallas news station in October. “There’s been too many allegations that have been made about ways in which the lives of the mother are not being protected. That must be clarified. That’s our focus.”

However, during the 2023 Texas legislative session—which concludes at the end of May, absent a special session—the GOP failed to introduce or pass any such legislation. Abbott did not make this a legislative priority, or even bring it up again publicly after getting reelected during the November midterm elections. (Requests for comment from his office were not returned.) Two Republican lawmakers who previously expressed support for creating exceptions in the laws for survivors of rape and incest also never pursued legislation to actually codify those changes. In fact, a handful of Texas Republicans recently stood with one of the largest anti-abortion groups in the state to reaffirm that they would not be pursuing these exceptions. “Our laws are very clear,” said Amy O’Donnell of Texas Alliance for Life. “We have heard stories of doctors who say they need further clarification but we believe that that clarification should come…from various [hospital] boards. The laws do not need to be changed.”

Meanwhile, nearly a dozen bills filed by Democrats that would offer exceptions haven’t even been given committee hearings. For instance, Austin-based state Senator Sarah Eckhardt offered a proposal to ensure that doctors prioritize the life of the pregnant patient over that of the fetus. The bill and its House counterpart have sat idle since March.

“I wish I didn’t need to file this kind of bill, meant to help protect the life of the mother,” said Eckhardt. “But the willful ignorance of reproductive health facts by those who supported these laws have led us here. Women in Texas are suffering horrible consequences and yet no action is being taken on these bills. Our leadership sees no reason to rectify this cruelty.”

Eckhardt points out that Texas Republicans are turning a blind eye to the fact that the majority of Texans—including those who identify as Republicans—support abortion access in cases of rape or incest, if there is a strong chance of a serious birth defect, or if the pregnant patient’s life is seriously endangered, findings reaffirmed by a February poll from the Texas Politics Project.

Missing the opportunity to offer this clarification today, the Texas Legislature is instead focusing on banning gender-affirming care for transgender children, pushing bills that would make it easier to remove district attorneys who have taken a stand against prosecuting abortion providers, and supporting ostensible “family planning” services like infusing a program that includes crisis pregnancy centers—riddled with transparency and accountability problems—with an unprecedented $200 million. The inaction is especially frustrating for advocates because the state suffers from a crisis of preventable maternal deaths, which is expected to worsen under these laws. All the while, a climate of fear perpetuated by the consequences of these laws grows in Texas, where abusers appear empowered to inflict harm on their abortion-seeking partners. Earlier this year, a man—accused of “serial” abusive behavior in a countersuit—filed a “wrongful death” lawsuit against his ex-wife’s friends for allegedly helping her access medication abortion. And just last week, a Texas man choked and then fatally shot his girlfriend in a Dallas parking lot after she returned from obtaining an abortion in Colorado.

Dr. Ghazaleh Moayedi, a Texas ob-gyn and board member with Physicians for Reproductive Health, stresses that hospitals and doctors are overinterpreting the law’s exceptions to avoid risk, leaving patients in complicated medical situations that require “incredible resources” amid a weak health care infrastructure and physician shortage. In a state that holds the highest percentage of uninsured residents of reproductive age, some 159 Texas counties have no ob-gyn. What constitutes a medical emergency should be determined by the patient in conversation with their doctor, and harm reduction should be the focus—not the last resort, she says.

“Physicians are being put in an impossible position where we have to choose between our freedom and livelihood and the oath we’ve taken to do no harm,” said Moayedi. “We should absolutely not be forced to wait to intervene once a life-threatening condition has occurred. Gaining clarity on these exceptions is really critical for physicians to feel protected when providing necessary care.”

Following the reversal of Roe, the Biden administration has sought to ensure that hospitals and doctors receiving Medicare and Medicaid funds do not turn away patients in need of emergency abortion care, by arguing that federal law under the Emergency Medical Treatment and Labor Act supersedes state laws. The federal government recently cracked down on hospitals in Kansas and Missouri that placed a pregnant woman’s life in jeopardy by refusing to offer emergency pregnancy termination after she went into premature labor. However, it’s unclear how effective the administration will be at actually convincing physicians—who face prison time and hefty fines in some states—to intervene without fear. And in Texas, doctors face the added threat of the state’s bounty-hunter law, which leaves them additionally vulnerable to civil suits.Moreover, hope that the federal government may come to the rescue was short-lived for Texans: In August, a Trump-appointed federal judge blocked the Biden administration’s emergency abortion guidance, following a lawsuit filed by zealously anti-abortion Republican Attorney General Ken Paxton.

In Texas, the state courts may now be the only avenue to address the glaring problem. In the first lawsuit of its kind in the wake of Roe’s reversal, Zurawski and four other Texas women who faced similar traumatic experiences filed suit in March to force the state to offer clarification on the scope of medical emergencies. The suit points to “inconsistencies” in the language of the laws, the use of non-medical terminology, and “sloppy legislative” drafting that has resulted in “understandable confusion” throughout the medical profession.

“The Texas abortion ban has been in effect much longer than other states with similar laws, so the harms have been collecting for a really long time in Texas,” said Molly Duane, plaintiff attorney with the Center for Reproductive Rights. “Yet none of the politicians in power have done anything to clarify what the law means or provide guidance to medical professionals who desperately need it. Real lives are at risk, and we are asking the courts to step in since all the other branches of government have failed to do so.”

Suit hearings may begin later this summer, said Duane. In the meantime, Texans will continue to suffer as doctors and hospitals receive no guidance.

Despite still reeling from the physical and “paralyzing” psychological trauma today including PTSD and depression, Zurawski, incredibly, considers herself among the “lucky” as she had the privilege of a supportive husband and employer who allowed her to “grieve for three days” as she “waited to almost die.” In her closing testimony before the Senate committee, she offered a grave warning.

“The barbaric restrictions that are being passed across the country are having real life implications on real people,” she said. “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. More people have been—and will continue to be—harmed until we do something about it.”

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