Amanda Zurawski, one of the plaintiffs in Zurawski v. State of Texas,
spoke in March 2023 at the Texas State Capitol in Austin.

On May 31, the Supreme Court of Texas issued a unanimous decision in Zurawski v. State of Texas upholding the constitutionality of the Texas abortion ban.

The Court ruled that the language of Texas law is clear in its protection of both unborn children and their mothers.

(See Texas Supreme Court Zurawski Opinion HERE)


The Zurawski Case

After the U.S. Supreme Court overturned Roe v. Wade on June 24, 2022, Texas enacted the Human Life Protection Act  (HB 1280)The Human Life Protection Act prohibits abortion from conception until birth and imposes civil and criminal liability against abortion providers who violate it. Texas’ abortion ban permits a statutory medical exception when a physician believes an abortion procedure is necessary to save the life of the mother. (See HB 1280 HERE)

Exceptions for Medical Emergencies Posing Risk to Life of Mother

“The [abortion] prohibition under Subsection (a) does not apply if…in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted 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 March 2023, the Center for Reproductive Rights filed the lawsuit challenging the Texas abortion ban in Travis County District Court in Austin. The suit was on behalf of women claiming their abortions were denied or delayed because the medical exception language in place under Texas law is “vague”. The women claimed lack of clarity in our state law results in doctors’ reticence to perform abortions for fear of prosecution or potential lawsuits.

District Court Judge Jessica Mangrum found the Texas abortion ban law unconstitutional and issued an injunction last August to prevent enforcement. She ordered that the law be expanded to permit abortions for anyone with a medically complicated pregnancy, including “a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth” even if the condition does not present a life-threatening risk to the mother.

Texas Attorney General Ken Paxton immediately appealed to the Texas Supreme Court, staying the District Court’s injunction pending a final decision.

(See Council for Life News HERE and HERE)

Key Takaways from Texas High Court’s Decision

The Texas High Court’s May 31st decision in Zurawski vacated the District Court injunction and:

  • Upheld the constitutionality of the Human Life Protection Act.
  • Noted the “plaintiffs include women who suffered serious complications during their pregnancies— situations filled with immense personal heartbreak.”
  • Reminded that the Texas Legislature in its last regular session amended Texas law to expressly permit abortion for two relatively common medically complicated pregnancies and “one of the pregnancy complications presented in this case.” These exceptions are ectopic pregnancy and a previable premature rupture of membranes (See HB 3058 HERE)
  • Affirmed the availability and clarity of the medical exception language that allows a doctors to perform abortion “to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent.”
  • Stated this Court recently held “the law does not require that a woman’s death be imminent or that she first suffer physical impairment” for the exception to apply. “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.”
  • Struck down the District Court order that the law permit abortions for “a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.” 
  • Stressed the “current law…plainly does not permit abortion based solely on a diagnosis that an unborn child has an abnormal condition, even a life-limiting one.”
  • Asserted the “history of abortion regulation in Texas demonstrates the Legislature’s unmistakable commitment to protecting the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life.”
  • Stated: “As painful as such circumstances are, that the law does not authorize abortions for diagnosed fetal conditions absent a life-threatening complication to the mother does not render it unconstitutional.”
  • Acknowledged the long-standing legitimate interests recognized by the courts to balance “preservation of prenatal life at all stages of development” and the “protection of maternal health and safety.

 

Texas Attorney General Ken Paxton Responds to High Court’s Ruling

Texas Attorney General Ken Paxton released a statement celebrating the ruling.

“Today, the Supreme Court of Texas unanimously upheld the Human Life Protection Act, one of our state’s pro-life laws. I 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.”

(See Texas Attorney General Press Release HERE)


Texas Supreme Court Calls on Texas Medical Board to Provide Guidance to Doctors

Last December, Dallas mother Kate Cox, filed a lawsuit against the State of Texas to abort her 20-week-old baby girl with Trisomy 18. The Texas Supreme Court ruled that Cox did not qualify for an abortion under the medical exception of our state’s abortion ban. Cox traveled to New Mexico to abort her baby.

In a footnote to its opinion in the Cox case, the Court called on the Texas Medical Board to offer more guidance to physicians, reminding the agency that it can “assess various hypothetical circumstances, provide best practices, identify red lines, and the like” as it has done for COVID-19 protocols and similar circumstances. (See Texas Supreme Court Kate Cox Opinion HERECouncil for Life News article HERE and Life News article HERE)

The Texas Medical Board met in March and released draft rules (Rule 165) to provide guidance on the state’s abortion banThe rules “do not regulate or prohibit abortion but are promulgated to clarify the regulatory analysis to be utilized by the Board in the event that the agency receives a complaint and must determine what is, if any, an appropriate disciplinary action against a physician who violates other laws that regulate or prohibit abortion.” (See Proposed Rule 165 HERE)

The Texas Medical Board accepted comments and on May 20 held public “Stakeholder Meeting” hearings for five hours providing physicians, lawyers and patients the opportunity to provide feedback on the draft rules. The rules as currently proposed were largely decried as providing little clarification on the medical exception. 

No decisions were made as a result of the May hearings. The Board will take the public comments under consideration at its meeting this month in deciding whether to amend the guidance or vote on the rules.

(See Dallas Morning News articles HERE and HERE)


Prayer Request for Mothers, Unborn Babies and Two Imminent, High-Stakes SCOTUS Abortion Decisions

Please join Council for Life in our continued prayers for the safety and protection of the life of every pregnant woman and the life of every unborn child.

Further prayers are needed. The U.S. Supreme Court will issue rulings in two high-stakes abortion cases any day now on: (i) whether the FDA unlawfully lifted critical safeguards for the use of chemical abortion pills to protect women’s health and (ii) whether the Federal Emergency Medical Treatment and Active Labor Actpreempts Idaho’s abortion ban, forcing emergency room doctors to perform abortions.

Please also join Council for Life in our continued prayers that our U.S. Supreme Court Justices will rule in these pending opinions on the side of the sanctity and protection of human life, including every pregnant mother and her unborn child.