First, some background
Texas currently has three near-total abortion bans: (1) a trigger ban, (2) a pre-Roe criminal ban, and (3) S.B. 8, also known as the "vigilante" or "heartbeat" law. Each contains an exception purportedly allowing abortions in emergencies or to save the life of the pregnant person, but the exceptions are inconsistent, conflicting, and use non-medical terminology, making it unclear to physicians when they are permitted to provide abortion care under Texas law. Texas has not provided clarifying guidance to physicians on this issue. Physicians found to violate these laws face stiff penalties of at least $100,000, up to 99 years in prison, and revocation of their medical license.
Earlier this year, fifteen women sued the state of Texas, seeking to clarify the scope of these exceptions. The plaintiffs are comprised of women who claim they were denied medically necessary abortions, as well as several physicians who say they are not able to provide medically necessary care to their pregnant patients. Denial of abortion care during several of the plaintiffs' medical emergencies forced some to experience life-threatening complications (including sepsis and admission to the ICU) and caused others to flee the state to seek medically necessary care elsewhere. Several of these plaintiffs testified in a recent hearing about their harrowing experiences.
Their lawsuit seeks an injunction barring Texas's abortion bans from being enforced in situations like theirs, as well as clarity on what types of medical emergencies qualify for legal abortion care under the laws' existing exceptions.
Trial court granted plaintiffs' request for a temporary injunction
Late on Friday August 4, Travis County District Court Judge Jessica Mangrum granted plaintiffs' request for a temporary injunction blocking the state's abortion bans as they apply to patients experiencing pregnancy complications that pose a risk to their health (including to their future ability to have children), or whose fetuses are unlikely to survive after birth. Specifically, the Court agreed with plaintiffs that "there is uncertainty regarding whether the medical exception to Texas’s abortion bans . . . permits a physician to provide abortion care where, in the physician’s good faith judgment and in consultation with the pregnant person, a pregnant person has a physical emergent medical condition." The Court then ordered:
Defendants are restrained from enforcing Texas’s abortion bans against physicians who provide abortion care and those that aid or abet in the provision of abortion care for any pregnant person who, in the treating physician’s good faith judgment and in consultation with the pregnant person, has: (1) a complication of pregnancy that poses a risk of infection or otherwise makes continuing a pregnancy unsafe for the pregnant person; (2) a condition exacerbated by pregnancy, that cannot be effectively treated during pregnancy, or that requires recurrent invasive intervention; and/or (3) a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.
To deny abortion care in these circumstances, the Court held, would violate the Texas Constitution. Specifically, "enforcement of Texas’s abortion bans as applied to a pregnant person with an emergent medical condition for whom an abortion would prevent or alleviate a risk of death or risk to their health (including their fertility)," or enforcement of the bans against physicians who provide abortions to such pregnant people, "would be inconsistent with the rights afforded to pregnant people under Article I, §§ 3, 3a, and/or 19 of the Texas Constitution and therefore would be ultra vires."
As to the individual plaintiffs, the Court found that "each experienced emergent medical conditions during their pregnancies that risked [their] lives and/or health (including their fertility) and required abortion care, but that [they] were delayed or denied access to abortion care because of the widespread uncertainty regarding physicians’ level of discretion under the medical exception to Texas’s abortion bans." Further, the Court found that there was a risk that this would happen again and that all pregnant people and physicians in Texas face a "probable, irreparable and imminent injury for which they will have no adequate remedy," and thus issued the temporary injunction.
The State's appeal automatically stays the injunction
However, the temporary injunction was short-lived and ultimately only lasted a few hours.
Almost immediately after the ruling was issued, late on Friday evening, the State Defendants appealed the trial court's temporary injunction to the Texas Supreme Court. According to the State's Notice of Accelerated Interlocutory Appeal filed in the trial court, this appeal automatically stays all further proceedings in the trial court, which had set a trial on the merits for March 25, 2024. In other words, a stay of the temporary injunction means the state's abortion bans remain in full effect without the clarifications and limitations discussed above, and we return to the status quo that existed prior to the trial court's Friday evening order, at least until the Texas Supreme Court takes action.
Pregnancies are complicated. The laws restricting reproductive medical care in Texas, as well as other states, often leave more questions than answers, and exceptions for "medical emergencies" are not always clear in practice. And when physicians face criminal penalties if the state ultimately disagrees with their interpretation of an ambiguous law, the result may be a chilling effect – the denial of medically necessary and even life-saving care for pregnant people, as the plaintiffs allege (and the court agreed) happened to them.
This case is the first lawsuit brought on behalf of women denied abortions since the Supreme Court struck down Roe v. Wade last summer, according to the Center for Reproductive Rights, who represents the plaintiffs. It is also one of the first to demand clarification on the scope of "medical emergency" exceptions, which exist not only in Texas but also in the statutes passed by many other states banning or restricting reproductive medical care since the Supreme Court's ruling in Dobbs. While the fate of Judge Mangrum's decision may temporarily be up in the air, the case provides an important framework for evaluating how abortion bans might be applied in medical emergencies. It is a critical case to watch.