A new lawsuit in Texas is bringing a different kind of challenge against the state’s abortion ban. Five women are suing not to get the law struck down, but to demand clarification of what exceptions the law allows and when abortion is legal. And each of these five women was personally harmed by the refusal of an abortion despite threats to their own health or fetal conditions incompatible with life.
Officially, Texas allows abortions certain extremely limited conditions, such as the risk of “substantial” harm to the health of the mother. But in practice, doctors and hospitals are often too intimidated by the law to provide abortions even when it is clearly the case that a pregnant person’s health is at risk or even is actively being harmed. This lawsuit calls on the courts to make it crystal clear what the law allows.
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One of the plaintiffs in the suit, Amanda Zurawski, became pregnant after 18 months of fertility treatments, but at 17 weeks, she learned that her cervical membranes had prolapsed and her fetus could not survive. But doctors told her that even though the fetus could not survive, the only conditions under which she could have an abortion were if the fetal heartbeat stopped, if she went into labor, or if she became acutely ill. She became acutely ill, with her temperature reaching 103.2 degrees. Once her life was in danger, her doctors finally took action. But she developed a secondary infection, required a blood transfusion, ended up in the ICU. Even after surgery to remove scar tissue from her uterus and fallopian tubes, one of her tubes could not be opened.
“Because of the law, I very nearly died. Nothing about this is pro-life,” she told MSNBC’s Yamiche Alcindor.
Another of the plaintiffs, Lauren Miller, was pregnant with twins—but at 12 weeks, one of the twins had conditions that were threatening the life of the other twin and Miller herself. She had to go to Colorado to abort the twin that could not survive and was threatening the lives of its sibling and mother. Miller is still pregnant with the surviving twin.
Then there’s Lauren Hall, who went to Seattle for an abortion after she learned that the baby she had already given a name had no skull and an undeveloped brain.
The Texas law reads that abortion is allowed in cases of “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that puts the pregnant person “at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” Again and again, we hear about cases where doctors—or, often, hospital lawyers—are interpreting this to mean that abortion is not permitted until the woman is on the brink of death. That it’s not enough for doctors to say that this will be life-threatening in the near future. It has to be a current condition.
The head of Texas Right to Life, one of the people behind the ban, insists that the law is clear that abortions are permitted in these cases. He ignores that it is obviously not clear enough given that there are so many of these cases of denials that endanger health and lives. Saying “The law I wrote was not intended to do this part of what it’s observably doing” does not work as a response to an effort to clarify that exact question. If the law is not supposed to do what happened to these women
The issue here is not that the doctors are being too cautious,” said Nancy Northup, president of the Center for Reproductive Rights. “The reality is, without clarification of this Texas law, without a change in the circumstances that are happening today, it is going to come that women are going to die.”
So this is the challenge to Texas: Exceptions to your abortion ban are already very narrow. Are they even real, though? It’s far from a complete challenge to the law—abortion should be available not just in emergency situations, as a matter of people’s basic right to control their bodies and make their own health care decisions—but it highlights one important slice of the damage the law is doing.
“Until there is a legal fight, nothing’s going to change,” Zurawski told MSNBC, “and something has to change.”
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