Texas AG’s office argues women should sue doctors — not state — over lack of abortion access

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Texas AG’s office argues women should sue doctors — not state — over lack of abortion access​

BY SAUL ELBEIN - 11/28/23 2:13 PM ET

Lawyers in the Texas attorney general’s office said Tuesday that women should sue their doctors, not the state, over a lack of access to abortion in defending the state’s strict law.

Beth Klusmann of the Texas Attorney General’s Office made that point in oral arguments before the state Supreme Court in a case challenging Texas’s abortion ban, which bars doctors from providing abortions after a fetal heartbeat is detected — typically around six weeks into pregnancy — with exceptions only for cases in which the life of the mother is at risk.

“If a woman is bleeding, if she has amniotic fluid running down her legs — then the problem is not with the law,” Klusmann said. “It is with the doctors.”

Klusmann was responding to plaintiffs in the case, who had charged the legislation had plunged the state into a “health care crisis.”

The lawsuit in Zurawski v. Texas was brought by 22 women who said that state law had forced them to carry nonviable and dangerous pregnancies to term — in other words, to go through the ordeal of pregnancy with a fetus that would not survive, and that in many cases was putting them at serious risk.

The suit brought by the Center for Reproductive Freedom charges that many of the 22 women were denied care because, despite the severity of the damage that the nonviable pregnancy was doing their body, doctors told them they weren’t quite sick enough for it to be clearly life threatening.

Forty businesses have also signed a brief in support of the suit — arguing that ambiguities in the law have incurred a substantial financial cost: nearly $15 billion in lost revenues, and businesses and employees leaving the state.

The plaintiffs argued that the 2021 law flew in the face of a long history of doctors being allowed to determine when abortion was necessary to preserve the health of the mother under state law — even when the procedure, in general, was not legal.

They contended that while the legislation included language intended to allow abortions in life-threatening cases, it was so vaguely worded — and its penalties so harsh — that it amounted to a total ban that threatened the lives of mothers already carrying babies who would not survive.

“The last two years are an aberration from a centuries-long practice in Texas that allowed physicians broad discretion over when abortion was necessary to preserve their patient’s lives,” said Molly Duane, an attorney for the Center for Reproductive Rights.

For most of Texas history, Duane argued to the court, doctors in the state were allowed to perform abortions if they had a “good faith” belief that they were necessary to save the life of the mother.

That changed in 2021, when the state Legislature passed Senate Bill 8, which exposed Texas doctors to harsh penalties — potential life in prison, loss of their medical license and hundreds of thousands of dollars in fines — if they perform an abortion on a fetus with a heartbeat.

“The abortion bans, as they exist today, subject physicians like my clients to the most penalties imaginable,” Duane said.

That ban holds even for complicated pregnancies where the fetus would not survive birth — something that in August caused a district judge to block the prosecution of doctors who performed abortions in those cases.

The same day that ruling came down, the office of Attorney General Ken Paxton (R) appealed it to the state Supreme Court — effectively keeping the ban in place.

Paxton’s office argued the suit was unnecessary, because the language in the ban allowed abortions in the case of “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that put the mother at risk of death or serious physical impairment.

In court, the state argued that the 22 women suing the state were the wrong plaintiffs going after the wrong target.

First, Klusmann argued that the women had no standing to challenge the 2021 law — because it targeted doctors, not pregnant women themselves.

Second, she argued that women with complicated and dangerous pregnancies should have no problem obtaining abortions under the law, and that they should be taking up their grievances with the doctors who had denied them the procedures they now argued were medically necessary rather than the state.

A woman risking death if she doesn’t get an abortion, Klusmann argued, would clearly “qualify for a medical emergency exemption. And so, if she has to come to court to make that happen, that is not the state’s fault.”

Judges honed in on that point, which opened the door to the broader argument that the women have no standing to bring a suit against the state because the people who injured them are their doctors.

In the case of a woman denied a medically necessary abortion, “why isn’t she suing her doctors? That sounds like medical negligence to me?” Justice Brett Busby asked.

“I disagree, Your Honor, because, as all of our patient-plaintiffs have testified, their doctors didn’t know what to do. Their hands are tied. The law acknowledges that physicians should not be waiting until death is imminent — and yet they are,” Duane said.

She gave the example of Amanda Zurawski, the woman who gave her name to the wider legal challenge — one of three dozen with similar cases who joined the suit.

In August 2022, Zurawski’s doctors told her that because of a problem with her cervix, her pregnancy — then at nearly 18 weeks — was no longer viable.

Because doctors could not perform an abortion, they sent her home, where her water broke. She rushed back to the emergency room — and, according to the legal complaint, found herself in a terrible limbo.

Because the fetus still had a heartbeat, and because she was not yet showing the signs of acute infection that would soon almost kill her, the doctors told her they had no option but to send her home, the complaint said.

“At this point, absent Texas’s abortion bans, a patient in [Zurawski’s] situation would have been offered an abortion or transferred to a facility that could offer the procedure,” the complaint read.

“But [Zurawski] was offered neither because the hospital was concerned that providing an abortion without signs of acute infection may not fall within the Emergent Medical Condition Exception in Texas’s abortion bans.”

So, according to the complaint, Zurawski spent nearly a week at home, growing gradually sicker, until her husband finally brought her back to the emergency room, where she was diagnosed with sepsis — a life-threatening chain reaction of infection cascading through the body.

By the time the baby — who didn’t survive — was delivered, and the series of infections had run its course, her uterus was so severely scarred that it threatened her ability to have future children, the complaint said.

Another woman, Cristina Nunez, said she nearly died of kidney failure while her hospital waited for her to become sick enough to legally justify an abortion.

Other plaintiffs described having to travel out of state to get abortions that would once have been uncontroversial in Texas — or, in some cases, being unable to do so because in-state delays had kept them waiting so long that out-of-state doctors wouldn’t perform an abortion either

For the state, Klusmann argued that these cases — which the Legislature sought to avert with its language about protecting the life of the mother — did not rise to the level of a constitutional issue.

“The Legislature decided to value unborn life and prohibit abortion in all circumstances unless that life is going to conflict with the life of the mother — we’re just trying to identify when it’s, when it’s appropriate to end the life of an unborn child,” she said.

“The Legislature has set the bar high, and there’s nothing unconstitutional about their decision to do so,” she added.

“What is your response to [Duane’s] argument that she, that these plaintiffs do not want to sue their doctor because they feel their doctor has done nothing wrong?” asked Justice Debra Lehrmann.

“That is their choice,” Klusmann said. “They don’t have to actually obtain damages [from the doctors] if they don’t want to. But if they wish to gain clarity of law through perhaps a medical malpractice claim, that’s their choice.”

“But we can’t force them to do it,” she added.
 

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If they were really serious about demystifying the law, they should hire a board of maga doctors to both define on case-by-case basis whether an abortion is medically necessary and to also take the blame when it goes wrong.

Give a hotline to each ER , or and gyno office in Texas.

Such a board will eliminate the abortion by choice argument which they are obviously trying to weed out, while allowing leeway for emergencies. The board Would also create more jobs for maga people. Such an organization sounds like a huge slam dunk for the shrewd republican congressman who both suggests it and brings the thousands of jobs it would create to their red district.
 
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If they were really serious about demystifying the law, they should hire a board of maga doctors to both define on case-by-case basis whether an abortion is medically necessary and to also take the blame when it goes wrong.

Give a hotline to each ER , or and gyno office in Texas.

Such a board will eliminate the abortion by choice argument which they are obviously trying to weed out, while allowing leeway for emergencies. The board Would also create more jobs for maga people. Such an organization sounds like a huge slam dunk for the shrewd republican congressman who both suggests it and brings the thousands of jobs it would create to their red district.
Yeah, let's pretend their conscious efforts to repeal a 50+year federally-conferred right to women, and active, concentrated efforts to stop a specific pregnant woman who has been medically deemed to be at serious risk for future infertility, and potentially die herself-is a legitimate good-faith reflection of valuing "life" of her, or a fetus that the vic here has been told by doctors is going to watch live, then die shortly afterwards. Oh and any doctor who tried to do the right fukking thing by sparing this woman of *some* of this utter tragedy will be prosecuted.



The Texas attorney general, Ken Paxton, has threatened to prosecute any doctor who provides an abortion to Kate Cox, a woman with a non-viable pregnancy, advising hospitals to ignore a court order issued on Thursday allowing her to get the procedure.

 
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Texas Woman Who Sued for Emergency Abortion Flees State to Get Care​

Kate Cox's saga proves "exceptions don't work," her lawyer said on Monday

BY TESSA STUART
DECEMBER 11, 2023

AUSTIN, TX - MAY 29: Pro choice protesters march down Congress Avenue at a protest outside the Texas state capitol on May 29, 2021 in Austin, Texas. Thousands of protesters came out in response to a new bill outlawing abortions after a fetal heartbeat is detected signed on Wednesday by Texas Governor Greg Abbot. (Photo by Sergio Flores/Getty Images)

Pro-choice protesters march down Congress Avenue at a protest outside the Texas state capitol on May 29, 2021 in Austin, Texas. SERGIO FLORES/GETTY IMAGES


KATE COX, THE Texas mother who sought permission to obtain an abortion, has been forced to flee the state to get medical care, her lawyers said on Monday.

“This past week of legal limbo has been hellish for Kate,” said Nancy Northup, president and CEO at the Center for Reproductive Rights, which represents Cox. “She’s been in and out of the emergency room and she couldn’t wait any longer.”

Cox, who lives in the Dallas area, was 20 weeks pregnant with her third child when the baby was diagnosed with trisomy 18, a fatal condition. Her baby will not survive, and her doctors advised Cox that with her medical history — including two previous C-sections — continuing the pregnancy could risk her life or her ability to have children in the future.

Last week, Cox petitioned for, and was granted, a temporary restraining order that would have allowed her to obtain an abortion under the ban’s narrow exceptions.

But immediately after Judge Maya Guerra Gamble issued her ruling, Texas Attorney General Ken Paxton dispatched letters to the three Houston-area hospitals where Cox’s doctor has admitting privileges, threatening to prosecute “anyone” who aided Cox. On Friday, the Texas Supreme Court issued an administrative stay, blocking Cox from obtaining an abortion.

On Monday, her legal team notified the court that Cox had fled the state. “Due to the ongoing deterioration of Ms. Cox’s health condition, and in light of the administrative stay entered by the Court on December 8 and the Attorney General’s ongoing threats to enforce Texas’s abortion bans against the Plaintiffs in this case, Ms. Cox is now forced to seek medical care outside of Texas,” lawyer Molly Duane wrote.

Cox’s legal team, Duane added, intends to proceed with its case challenging the ban.

Northrup said in a statement Monday that Cox’s case proved one thing: “Exceptions don’t work.”

“She desperately wanted to be able to get care where she lives and recover at home surrounded by family. While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence,” she said.
 

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Texas woman who sought court permission for abortion leaves state for the procedure, attorneys say​



A Texas judge has given a pregnant woman whose fetus had a fatal diagnosis permission to get an abortion in an unprecedented challenge to the state’s ban that took effect after Roe v. Wade was overturned last year. (Dec. 7)

Photos

BY PAUL J. WEBER
Updated 2:46 PM EST, December 11, 2023



AUSTIN, Texas (AP) — A pregnant Texas woman who sought court permission for an abortion in an unprecedented challenge to one of the most restrictive bans in the U.S. has left the state to obtain the procedure, her attorneys said Monday.

The announcement came as Kate Cox, 31, was awaiting a ruling from the Texas Supreme Court over whether she could legally obtain an abortion under narrow exceptions to the state’s ban. A judge gave Cox, a mother of two from the Dallas area, permission last week but that decision was put on hold by the state’s all-Republican high court.

“Her health is on the line. She’s been in and out of the emergency room and she couldn’t wait any longer,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which was representing Cox.

The organization did not disclose where Cox went. On Monday, she was 20 weeks and six days pregnant.

Cox was believed to be the first woman in the U.S. to ask a court for permission for an abortion since Roe v. Wade was overturned last year. Her lawsuit quickly became a high-profile test of bans in Texas and a dozen other GOP-controlled states, where abortion is prohibited at nearly all stages of pregnancy.



Days after Cox filed her lawsuit, a pregnant woman in Kentucky also asked a court to allow an abortion. There has been no ruling yet in that case.

Earlier Monday, two medical groups in the U.S. urged the Texas Supreme Court to rule in favor of Cox. Her attorneys said she had been to the emergency at least four times since becoming pregnant again in August.

“The pervasive ‘climate of fear’ among the Texas medical community is certain to be made worse by this case and the State’s actions in opposing the abortion Ms. Cox needs,” read the brief, which was filed by the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine.

Texas’ abortion ban makes narrow exceptions when the life of the mother is in danger but not for fetal anomalies.

Republican Texas Attorney General Ken Paxton, who has defended the state’s strict anti-abortion laws for nearly a decade, argued that Cox did not demonstrate that the pregnancy had put her life in danger.

“The Texas Legislature did not intend for courts to become revolving doors of permission slips to obtain abortions,” Paxton’s office wrote in a filing to the state Supreme Court last week.

Doctors told Cox that her fetus has a condition known as trisomy 18, which has a very high likelihood of miscarriage or stillbirth, and low survival rates, according to her lawsuit filed last week in Austin. They also told Cox that inducing labor or carrying the baby to term could jeopardize her ability to have another child.

Trisomy 18 occurs in approximately 1 in 2,500 diagnosed pregnancies, doctors told the court in the brief filed Monday. There is no live birth in about 70% of pregnancies involving the diagnosis that proceed past 12 weeks gestational age, according to the brief.

The termination of pregnancies because of fetal anomalies or other often-fatal medical problems is seldom discussed in national debates over abortion. There are no recent statistics on the frequency of terminations for fetal anomalies in the U.S. but experts say it’s a small percentage of total procedures.
 
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