- Janice Hopkins Tanne
The Texas Supreme Court has unanimously rejected a challenge to the state’s strict abortion ban by 22 women who claimed they were denied abortions in medical emergencies.1
In 2021 Texas banned abortions after cardiac activity could be detected, usually at about six weeks of pregnancy. The US Supreme Court overturned the constitutional right to abortion in June 2022 and left decisions to the states.2 Around half of the 50 US states ban or severely limit abortion.
Exceptions to the Texas ban were permitted only for a medical emergency, which was not defined. Doctors who violated the ban faced loss of their medical license, fines of up to $100 000, and 99 years in jail.
The women who sued the court had been denied abortions in Texas despite serious pregnancy complications, such as premature rupture of membranes with an unviable fetus that still had a heartbeat and a fetus with fatal abnormalities—standard medical care elsewhere. Most left Texas to get abortions in other states.
Texas attorney general Ken Paxton praised the court’s ruling, saying, “The Supreme Court of Texas unanimously upheld the Human Life Protection Act, one of our state’s pro-life laws.”3
Paxton quoted the court’s ruling: “Texas law permits a life saving abortion. A physician may perform an abortion if, exercising reasonable medical judgment, the physician determines that a woman has a life threatening physical condition that places her at risk of death or serious physical impairment unless an abortion is performed. The law permits a physician to intervene to address a woman’s life threatening physical condition before death or serious physical impairment are imminent.”
The decision left Texas doctors and women as confused as before.
Earlier, the Texas Medical Board had been asked by the court to clarify the situation. The board said that it did not have the authority to change, regulate, or prohibit abortion and it could not give a list of situations that would qualify as exceptions to the ban.4
The medical board defined a “medical emergency” by quoting the Texas Health and Safety Code, which says, “‘Medical emergency’ means a life threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
Again quoting the code, the board said, “‘Reasonable medical judgment’ means medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.”
