Since the overturning of Roe v. Wade in July 2022, Texas adopted three highly restrictive abortion bans with exceptions in cases of loosely defined “medical emergencies.” One ban, called “SB-8,” prohibits abortion once the fetus’ heartbeat is detectable, as early as five weeks. These prohibitory laws apply even in cases of rape and incest, and physicians could be penalized with up to 99 years in prison or charges of $100,000 for breaking them according to Johns Hopkins.
The lack of medical language and harsh punishments surrounding abortion legislation have trapped physicians between the potential of criminal penalty for performing an abortion or the potential of malpractice liability for denying a patient a potentially life-saving abortion. On March 6th, 2023, a lawsuit was filed against the state of Texas by five women, all claiming the laws’ lack of clarity has caused them to be denied care despite medical emergencies and fatal fetal diagnoses. The lead plaintiff, Amanda Zurawski, was told by doctors her pregnancy was non-viable, but was refused an abortion because the fetus’ heartbeat was detectable. Forced to continue her pregnancy, Zurawksi developed sepsis twice, leading to excessive scar tissue and the permanent closure of one of her fallopian tubes. After an emergency induction abortion, ABC reported she nearly died in the ICU.
Other plaintiffs share similar experiences, often remorsefully told by doctors that their procedures would’ve only been possible before the overturning of Roe. Many of them turned to clinics out of state, but some were refused referrals or medical records for these procedures. Upon hearing testimonies, the Texas District Court ruled physicians should be able to use their “good faith judgment” to determine whether an abortion is life threatening and deemed SB-8 unconstitutional, says the Center for Reproductive Rights.
Since then, 15 more women have joined the case – 13 of them denied abortion care, two of them obstetrician-gynecologists. The case was appealed to the Texas Supreme Court, where oral arguments were heard on November 28th, 2023. In an interview with ABC, Zurawski describes the distressing conditions on the testimony stand as plaintiffs shared stories of nearly fatal experiences, detailing that one plaintiff couldn’t finish her story after becoming physically ill. She added, “No one in the state’s defense one single time apologized for our loss or acknowledged our grief.” Plaintiffs were even blamed in cross examinations, told they should’ve understood their pregnancies to be life threatening and filed malpractice suits.
Even if the District Court’s decision is upheld, and physicians are allowed to use their “good faith judgment” in defining a medical emergency, the implications remain unclear: with acute punishments, it’s likely that many physicians may still be too fearful to use their judgment wary of criminal prosecution. This phenomenon is not confined to Texas. In April 2022, a study conducted by Physicians for Human Rights found a lack of consistency in state policies and concluded not one Oklahoma hospital could articulate in what cases abortions are permitted. Lauren Miller, another original plaintiff, sums up the sense of frightened uncertainty sweeping post-Roe America, asking MSNBC, “How close to death do I have to be before I can fully access healthcare?”
This article also appears in our December 2023 print edition.
