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Texas Supreme Court rejects abortion ban challenge

The Supreme Court of Texas (SCOTX) has issued an opinion in a long-debated case involving the constitutionality of when abortion is permitted in the case of a life-threatening physical condition.

Zurawski v. State of Texas was filed in March 2023 after a group of women claimed that Texas’s pro-life laws have “caused and [threaten] to cause irreparable injury.”

The Center for Reproductive Rights (CRR), representing the group of physicians and women who claim they faced severe pregnancy complications, sought to stop the enforcement of Texas laws restricting abortion.

They argued these laws should allow doctors to perform abortions for unsafe pregnancies or when the unborn child is unlikely to survive after birth. CRR claimed that without this interpretation, the laws violate the Texas Constitution's due course and equal protection provisions. The state tried to dismiss the case on grounds such as lack of standing and Texas’ sovereign immunity, but a trial court issued a temporary injunction to prevent enforcement of the laws in such cases.

Now, SCOTX has unanimously vacated the injunction, stating it went against Texas law, but allowed one physician's claims against the attorney general to proceed because she had been threatened with enforcement.

In the opinion by Justice Jane Bland, the court begins its explanation by stating that “Texas law permits a life-saving abortion.”

The opinion references Texas’ Human Life Protection Act and concludes: “A physician who tells a patient, ‘Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment.”

The court further explained that “the law does not require that a woman’s death be imminent or that she first suffer physical impairment,” adding, “Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk.”

Questions concerning “hypothetical future possibilities” are addressed in the opinion explaining that “A court does not strike down a law as unconstitutional based on a hypothetical situation.”

The opinion then goes on to explain that if a case is to proceed, “sufficient specificity” must be provided. “But the judiciary dwells in the house of the concrete past, assembled through the gradual accretion of judgments in specific cases.”

In Justice Debra Lehrmann’s concurring opinion, she wrote, “However, an abortion ban any more restrictive or narrowly construed would, in my view, be inherently violative of both the United States Constitution and the Texas Constitution.”

“Therefore, pursuant to our decision in this case, immediate and ongoing efforts to formulate applicable standards and best practices are essential to ensure that women in Texas receive the timely, quality medical care that they deserve and to which they are entitled,” Lehrmann added.

“The further the medical community goes in undertaking this sensitive task now, the better equipped courts will be to objectively evaluate a physician’s conduct in the future.”

Attorney General Ken Paxton previously filed an appeal to SCOTX following the previous lower court injunction on the grounds that there is “A moral principle enshrined in the law which states that an abortion may be performed under limited circumstances.”

The Bland opinion addresses a letter Paxton had issued to multiple Texas hospitals where he explained that performing an abortion could still result in criminal and civil penalties. The letter was in reference to the physician involved in the Zurawski lawsuit, Damala Karsan.

“We conclude that the Attorney General directly threatened enforcement against Dr. Karsan in response to her stated intent to engage in what she contends is constitutionally protected activity,” the opinion states. “A state official’s letter threatening enforcement of a specific law against a plaintiff seeking relief from such enforcement is a sufficient showing of a threat of enforcement to establish standing to sue.”

Paxton stated as a result of Friday’s SCOTX ruling that he “will continue to defend the laws enacted by the Legislature and uphold the values of the people of Texas by doing everything in my power to protect mothers and babies.”

The Texas Medical Board has recently reviewed a petition asking to “clarify exceptions to the prohibition on abortion in Texas,” requesting the board make a rulemaking decision under the Texas Administrative Procedure Act.

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