Lawsuit over state pro-life laws goes before the Texas Supreme Court

The Texas Office of the Attorney General (OAG) argued its appeal to protect Texas pro-life laws before the Supreme Court of Texas on Tuesday, November 28.

The appeal arose from a lawsuit originally filed in March by five women and two doctors who challenged the constitutionality of the state’s pro-life laws, claiming they violate women’s rights.

Travis County Judge Jessica Mangrum issued a temporary injunction declaring that the laws violated sections of the Texas Constitution. The OAG immediately filed a notice of interlocutory appeal, leaving the laws in effect until the matter is decided by the state’s highest civil court.

Much of the oral argument surrounded the language of medical exceptions for which abortion is allowed in the state.

Under 2021’s Senate Bill 8, also known as the Heartbeat Act, doctors may not be civilly liable for performing an abortion if the “physician believes a medical emergency exists that prevents compliance” with the act. The physician must notate the medical condition in the patient record.

The Human Life Protection Act, also known as the “trigger ban,” prohibits abortions and includes criminal and civil penalties, including the revocation of the physician’s medical license.

Under that law, physicians are allowed to exercise their “reasonable medical judgment” to perform an abortion when the continued pregnancy puts the pregnant woman at “risk of death or poses a serious risk of substantial impairment of a major bodily function.”

Arguing for the OAG, attorney Beth Klusmann said that Mangrum rewrote and expanded the medical exceptions in the laws through her injunction. Klusmann argued that for 120 years prior to the U.S. Supreme Court’s decision in Roe v. Wade, Texas looked to the reasonable medical judgment of doctors and not to their good faith judgment.

The first is an objective standard, while the second is a subjective standard based on the belief of an individual doctor.

In her injunction, Mangrum chose the subjective standard, allowing a physician to perform an abortion based on the “treating physician’s good faith judgment and in consultation with the pregnant person.”

In response to the state’s argument, Center for Reproductive Rights attorney Molly Duane argued, ”While there is technically a medical exception to the ban, no one knows what it means and the state won’t tell us.” She claimed the state’s own expert witness at the trial court testified that physicians are “terrified” because of the laws and are providing substandard care.

In response, Klusmann said physicians providing substandard care is the doctor’s fault, not the state’s.

The justices pushed back against OAG’s claim that the plaintiffs in the case did not have standing. Justice Jeff Boyd asked Klusmann who could file suit seeking clarity about the language of the pro-life statutes and against whom.

Klusmann argued that this matter does not involve a specific case and controversy, as required by the rules of standing, but instead seeks an advisory opinion. In the end, however, Klusmann seemed to concede the standing argument.

Duane also argued that the case was only about a small minority of abortions, about one percent, that have always been performed in hospital settings. She pointed out that outpatient abortion clinics have moved out of Texas.

Justice Jimmy Blacklock pushed back, referring to the “capaciousness” of the injunction. In the trial court, testimony referred to common conditions in pregnancy like high blood pressure and obesity that might justify abortion under the view of medical exceptions propounded by Duane.

“It seems to me just looking at the case you presented and the injunction that was granted, this very well could open the door far more widely than you’re acknowledging,” Blacklock said.

“What the legislature has done is chosen to value unborn life and prohibit abortion in all circumstances unless that life is going to conflict with the life of the mother,” Klusmann said.

“The legislature has chosen to set the bar high, and there is nothing unconstitutional about that,” she added.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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