Texas Supreme Court upholds law outlawing abortion even in so-called ‘hard cases’

Another woman, Ashley Brandt, testified that when she was 12 weeks pregnant with twins, one of the babies was diagnosed with acrania, a fatal condition in which the skull fails to fuse. When the baby’s heart stopped, doctors told her, it would likely trigger labor, causing the healthy twin to die, as well. She traveled out of state to abort the stricken baby and gave birth to the healthy one, the court decision states. 

Another woman, Samantha Casiano, lamented having to carry to term her baby girl who was diagnosed 20 weeks into the pregnancy with anencephaly, a condition in which the baby lacks a major portion of the brain and therefore is unable to live more than a short time after birth. The baby died four hours after delivery, the decision says. 

Piecemeal challenges 

Texas outlawed abortion after the U.S. Supreme Court overturned Roe v. Wade in June 2022, sending abortion law back to legislatures and state referendums. Since then, abortion supporters have tried to chip away at the law. 

Last year, The Center for Reproductive Rights, which supports abortion, filed a lawsuit challenging the law on behalf of several women who experienced severe pregnancy complications, and three doctors. 

The state’s Human Life Protection Act allows an abortion if doctors using “reasonable medical judgment” determine that a pregnant woman “has 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.” 

In August 2023, a Travis County district court judge in Austin, the state capital, issued a short-lived injunction that sought to offer doctors a “good faith judgment” exception. This would allow abortions in cases where a pregnancy complication “poses a risk of infection or otherwise makes continuing a pregnancy unsafe for the pregnant person,” where “a condition exacerbated by pregnancy … cannot be effectively treated during pregnancy,” and where “a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.” 

The state’s abortion statute does not contain such exceptions. 

During oral arguments in November 2023, a state supreme court justice asked a lawyer from the state attorney general’s office defending the state’s anti-abortion law if the statute’s requirement that doctors use “reasonable medical judgment” to determine if an abortion is necessary doesn’t put doctors in a tough situation. 

The lawyer said no. 

“They are allowed to use reasonable medical judgment, which is presumably the judgment they use when treating a patient in any given circumstance. And so the option, I guess, facing the legislature — you could either draw a line and allow them to use their reasonable medical judgment, or you can do what the trial court did and essentially eliminate the line so that there really will never be a circumstance in which a woman is unable to obtain an abortion,” said Assistant State Attorney General Beth Klusmann. 

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“And so, there are always going to be harder calls at the edge of that line, but the only other option is to eliminate the line entirely,” she said. 

The case, which was decided Friday, May 31, is known as State of Texas v. Zurawski.