Plaintiffs in Texas abortion case should be suing their doctors instead, argues Texas AG

The Texas Supreme Court heard arguments for the highly controversial case, Zurawski v. The State of Texas, on Nov. 28th. Beth Klusmann, representing the Texas Attorney General, responded to Center for Reproductive Rights attorney Molly Duane, stating that the plaintiffs had no standing to seek clarification of Texas abortion laws since they were not making a vagueness challenge and they were not seeking a ruling on any woman’s particular case. Both Klusmann and several of the Texas Supreme Court Justices appeared to come to the conclusion that women in Texas who do not receive appropriate maternal healthcare should sue their doctors for malpractice instead of challenging State law.

Exercising judgment

Duane claimed that “the last two years are an aberration from a centuries-long practice in Texas that allowed physicians broad discretion to provide abortion when necessary to preserve their patients’ lives” and “while there is technically a medical exception to the bans, no one knows what it means and the State won’t tell us.”

She cited the historical precedent of medical exceptions for abortion in Texas under the 1845 State Constitution, and claimed that, historically, physicians “were exercising broad discretion under the medical exception… not waiting until patients are on the verge of death” as she thinks physicians do now. Duane believes that doctors in Texas are currently compromised in their ability to make reasonable judgments about caring for pregnant women because of possible legal repercussions due to pro-life laws.

According to Duane, doctors in Texas “have their hands tied” because they are wary of treating women with pregnancy complications and are “terrified” of being prosecuted for committing abortions illegally.

Klusmann affirmed that the State Law currently allows physicians sufficient freedom to use reasonable medical judgment in difficult cases, when pregnant women may need to end a pregnancy and be treated for miscarriages. She repeated the exception for abortion in Texas Law. Abortion is prohibited in Texas unless the mother “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places [her] at risk of death or poses a substantial impairment of a major bodily function unless an abortion is performed.”

Opposing Duane’s claim that doctors are too terrified to treat women in Texas today, Klusmann argued: “I don’t think [Texas Law] does [put medical professionals in a hard situation]. They are allowed to use reasonable medical judgment which is presumably the judgment they use when treating a patient in any given circumstance.”

Justice Blacklock echoed Klusmann, addressing Duane’s claim that doctors in Texas historically were better able to make decisions about abortions than they are now. “I’m struggling to understand that there’s been this long history of doctors being able to apply this with clarity and ease when we were under… a more restrictive [law],” he said.

The blame game

Duane blamed the law for the apparent malpractice the women underwent at hospitals. Duane referenced the stories of two of the plaintiffs, Amanda Zurawaski and Cristina Nuñez, attempting to prove that these women suffered injuries because of the lack of clarity in the law.

Nuñez was suffering from multiple health problems, including diabetes and end-stage renal disease when she conceived her child. According to the Center for Reproductive Rights, Nuñez’s pregnancy caused the mother to have multiple blood clots and spend more time on dialysis. It is not known if Nuñez’s doctors attributed these health problems to her pregnancy. 

Nuñez sought an abortion, first from Texas; then, when she found that she did not qualify for an abortion in Texas, from New Mexico. She wanted to take the abortion pill but was told she could not due to her health problems. After the severity of Nuñez’s blood clots increased, she sought and underwent an abortion in Texas after a trip to the emergency room, with the help of a pro-bono attorney.

 Zurawski suffered pre-term pre-labor rupture of membranes (PPROM) when she was 18 weeks along in her pregnancy. She was denied an abortion at an Austin hospital because her baby still had cardiac activity, and she later developed sepsis before doctors delivered the preborn child. Zurawaski’s fertility is now said to be compromised by injuries to her fallopian tubes.

Duane pointed out that a woman should not have to wait until she has “blood or amniotic fluid dripping down [her] leg” before receiving the medical care that she needs. 

When asked by the Justices why the women didn’t sue their doctors for malpractice instead of blaming the law for a lack of clarity without making a vagueness challenge, Duane responded that the plaintiffs do not blame their doctors for refusing to grant them medically necessary abortions.

Klusmann and several of the Justices disagreed that the patients should challenge the law rather than sue their doctors, saying that any plaintiffs who suffered substantial threats to major bodily functions due to their pregnancies were clearly able to obtain medically necessary abortions due to the medical abortion exception in the law.

Lack of standing

Furthermore, Klusmann explained that the plaintiffs do not even have standing to challenge the State law. The plaintiffs have decided not to make a vagueness challenge and have decided not to file a case for any of the individual plaintiffs. They have only asked for an advisory opinion on general hypotheticals and not a ruling on a factual circumstance.

“A mere disagreement about the laws is insufficient, you need to have opposing parties, specific facts, specific legal arguments, not just ‘could you please expound on the law and give us your opinion as to what it means,’” Klusmann said.

According to Klusmann, the case was handled incorrectly in the lower courts. She said that the temporary injunction granted by a Texas district judge to block laws protecting preborn children was unconstitutional. 

“The trial court overstepped its constitutional bounds when it rewrote and expanded the medical emergencies exceptions and then concluded that the expansion was constitutionally required,” she said.

Texas law has been clearly defined and the people of Texas, through their elected representatives, agree with it. 

“In Texas, [state] representatives have chosen to highly value the lives of unborn children and limited abortion to medical emergencies as defined by statute… and the people of Texas, through the Constitution, have not demanded a different result,” Klusmann said.

Some people may see the Texas laws, which allow few abortion exceptions, as harsh, but Texans have freely decided to hold themselves to this standard. As Klusmann said, “The Legislature has set the bar high, and there’s nothing unconstitutional about their decision to do so.”