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The Texas Supreme Court on Tuesday appeared skeptical of one of the rationales advanced by the state's representative during oral arguments in a case involving the "medical emergency" exception to Texas's abortion ban.

Justice Jeff Boyd said he was "struggling to understand" the state's contention that the plaintiffs -- who included both patients who were denied abortions during a time in which they had medical conditions they considered life- or health-threatening, as well as the physicians who treat such patients -- lacked standing to sue.

"It seems like the non-physician plaintiffs each had some circumstance related to the pregnancy that could at least [on the surface] demonstrate some controversy regarding the ... lack of clarity of the statute," he said. For example, the lead plaintiff in particular described her own medical situation, he added, so "why doesn't she have standing to say, 'Hey, we need someone to tell us what the statute means?'"

Beth Klusmann, who argued the case on behalf of the Texas attorney general's office, appeared willing to concede that the "standing" argument might be expendable. "If the court wishes, we can talk about the merits and say, 'Let's assume that there is a plaintiff with standing,'" she said. "Let's talk about the constitutional question, whether there is a 'due course' right to abortion here."

Case Background

The case, known as State v. Zurawski, stems from Texas's bans on abortion. The state has two such bans. One is a so-called "trigger ban" enacted in 2021 in anticipation of the Supreme Court's overturning of Roe v. Wade, the ruling which made abortion legal nationwide. The trigger ban, which took effect in August 2022 after Roe was overturned, bars any person from "knowingly perform[ing], induc[ing], or attempt[ing] an abortion" at any point in a pregnancy, according to a . Violating the ban is a first-degree felony punishable by life in prison and revocation of the violator's medical license.

The second ban, known as Senate Bill 8 or SB 8, prohibits physicians from knowingly "perform[ing]" or "induc[ing]" an abortion after detection of embryonic or fetal cardiac activity, or approximately 6 weeks into pregnancy. Rather than using state officials to enforce the ban, SB 8 delegates enforcement to "[a]ny person" who may bring "private civil actions" requesting a minimum of $10,000 per abortion plus injunctive relief against physicians who violate SB 8, aid or abet a violation, or who "intend" to aid or abet a violation, the brief notes.

Both bans do, however, contain an exception for an abortion performed by a licensed physician on a patient for "a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced."

Issue of Standing

The plaintiffs sued the state, the Texas attorney general, and the Texas Medical Board and its executive director, seeking clarification of the medical-emergency exception, as noted in a provided by the court. They also asked the court to declare that aspects of the abortion laws are unconstitutional. The trial court issued a temporary injunction that reforms the statute to define particular medical conditions as within the medical-emergency exception, restrains the state parties from enforcing the abortion bans in those instances, and enjoins the State parties from enforcing Texas abortion laws against the plaintiffs in particular.

The state of Texas appealed to the state Supreme Court, contending that in addition to lacking standing to sue, the plaintiffs have not shown a probable, imminent, or irreparable injury.

During Wednesday's oral arguments, Justice Evan Young asked Molly Duane, JD, MPH, of the Center for Reproductive Rights, who was representing the plaintiffs, how the situation that the physicians and patients faced would compare to that of police officers. "The situation you've described about doctors being in a position of having to make very grave decisions, and not being sure what the law allows, and being subjected to serious consequences if they are wrong, is not unique," said Young. "I think of police officers, for example, who also have to make very serious choices -- usually with much less time -- and will be held accountable in civil court [and in] criminal prosecutions."

"Do you think that a police officer could bring a declaratory judgment action to find out what the meaning of the Fourth Amendment is or the Eighth Amendment is based on having multiple times been in a situation where 'a suspect is doing this' or 'the windows open this much' and 'I really need to know because I could lose my job; I could lose my liberty or my property,'" he continued. "Do you think that would be proper in that context for some other professional, like a policeman?"

Physicians Are Waiting Longer to Act, Plaintiffs Say

Duane said she didn't think the comparison was valid. "We're not talking about a usual situation -- a crime or a misdemeanor," she said. "We are talking about a physician losing their medical license permanently or spending the rest of their life in prison. And when combining SB 8 plus the trigger ban penalties, we're talking about hundreds of thousands of dollars in civil fines ... I just don't think the situations are analogous at all."

She noted that, unlike physicians, police officers have "qualified immunity," which prevents them from being sued unless they have violated clearly established constitutional rights.

Duane gave the example of one plaintiff who had end-stage renal disease and was told by her physicians that neither she nor her baby were likely to survive if the pregnancy was carried to term. She had several hours of dialysis each day and her condition continued to deteriorate, yet her physicians didn't intervene until she developed deep vein thrombosis. "All of her limbs were black before physicians actually provided her with an abortion," Duane said.

"So why isn't she suing her doctors?" asked Justice Brett Busby. "That sounds like medical negligence to me."

"I disagree, because as all of our patient plaintiffs have testified, their doctors didn't know what to do; their hands were tied by the law," Duane said. "The state's own expert acknowledges that physicians should not be waiting until death is imminent, and yet they are, in her words, providing substandard care because of the lack of clarity in the law."

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