Five women sue Texas over state’s abortion ban

The suit asks the court to affirm that physicians can make exceptions to the state's abortion ban. However, its greater power may lie in appealing to public opinion

Five women who say they were denied abortions despite grave risks to their lives or their fetuses sued the state of Texas on Monday, apparently the first time that pregnant women themselves have taken legal action against the bans that have shut down access to abortion across the country since the US Supreme Court overturned Roe v. Wade.

The women — two visibly pregnant — plan to tell their stories on the steps of the Texas Capitol on Tuesday. Their often harrowing experiences will put faces to what their 91-page complaint calls “catastrophic harms” to women since the court’s decision in June, which eliminated the constitutional right to abortion after five decades.

Their accounts may resonate with public opinion, which generally supports legalized abortion and does so overwhelmingly when a pregnancy endangers the woman’s life. The lawsuit, backed by the Center for Reproductive Rights, comes as the country grapples with the fallout from overturning Roe, with abortion banned in at least 13 states.

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Texas, like most states with bans, allows exceptions when a physician determines there is a risk of “substantial” harm to the mother, or in cases of rape or incest, or if the fetus has a fatal diagnosis. Yet the potential for prison sentences of up to 99 years, $100,000 fines and the loss of medical licenses has scared doctors into not providing abortions even in cases where the law would seem to allow them.

The suit asks the court to affirm that physicians can make exceptions, and to clarify under what conditions. But its greater power may be in appealing to public opinion on abortion. Similar lawsuits over exceptions, focusing public attention on stories of women who were denied abortions despite medical dangers, helped build momentum for legalized abortion in heavily Catholic Ireland and in South America.

The women bringing the suit contradict stereotypes about who receives abortions and why. Married, and some with children already, the women rejoiced at their pregnancies, only to discover that their fetuses had no chance of survival — two had no skulls, and two others were threatening the lives of their twins.

Though they faced the risk of haemorrhage or life-threatening infection from carrying those fetuses, the women were told they could not have abortions, the suit says. Some doctors refused even to suggest the option, or to forward medical records to another provider.

The women found themselves furtively crossing state borders to seek medical treatment outside Texas, worried that family and neighbours might report them to state authorities. In some cases, the women became so ill that they were hospitalized. One plaintiff, Amanda Zurawski, was told she was not yet sick enough to receive an abortion, then twice became septic, and was left with so much scar tissue that one of her fallopian tubes is permanently closed.

“You don’t think you’re somebody who’s going to need an abortion, let alone an abortion to save my life,” Zurawski, 35, said. “If anybody reads my story, I don’t care where they are on the political spectrum, very few people would agree there is anything pro-life about this.”

Anti-abortion groups argue that restrictions on abortion do not harm women’s health, that doctors can provide lifesaving care without needing to perform an abortion, and that the laws prevent only what the groups call “elective” abortions, or those that are intended to end an unwanted pregnancy. That is different, they argue, from the management of a miscarriage or ectopic pregnancy, situations that are often allowed under the exceptions in state abortion bans.

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Abortion opponents have also been sceptical about exceptions to the bans. Texas Attorney General Ken Paxton, who is named as a defendant in the suit along with the state medical board and its director, sued the Biden administration last year over its guidance reminding doctors that federal law requires them to provide an abortion if it is necessary in emergency care.

“We’re not going to allow left-wing bureaucrats in Washington to transform our hospitals and emergency rooms into walk-in abortion clinics,” Paxton said at the time.

In response to a request for comment Monday night, Paxton’s office sent a copy of a memo he issued in July affirming that the overturning of Roe would automatically trigger an abortion ban in the state.

It quoted the Texas statute banning abortion unless there is “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that places the pregnant woman “at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”

Paxton’s memo concluded: “Now that the Supreme Court has finally overturned Roe, I will do everything in my power to protect mothers, families and unborn children, and to uphold the state laws duly enacted by the Texas Legislature.”

Data suggests that very few women have been allowed to receive abortions under exceptions. Medical associations have joined in lawsuits, saying that the bans have caused “chaos” for hospitals and providers in emergency situations.

“I don’t think we’ve ever seen anything like this in the nation, having people with pregnancy complications having to sue the state,” said Nancy Northup, president of the Center for Reproductive Rights, which is acting as legal counsel for the women. “It puts a face on the reality of what it means when you criminalize abortion care. It shows that abortion care is health care.”

Unlike other suits from abortion rights groups, the Texas suit does not seek to overturn the state bans on abortion. Instead, it asks the court to confirm that Texas law allows physicians to offer abortion if, in their good-faith judgment, the procedure is necessary because the woman has a “physical emergent medical condition” that cannot be treated during pregnancy or that makes continuing the pregnancy unsafe, or the fetus has a condition “where the pregnancy is unlikely to result in the birth of a living child with sustained life.”

The women are not suing the medical providers who denied abortions, and the providers are not named in the suit; in most cases, the women say the providers were doing the best they could, but had their hands tied.

The Texas Medical Association has appealed to state authorities to offer more clarity on what exceptions are allowed. The author of one of the bans wrote to the state medical board in August, concerned that hospitals “may be wrongfully prohibiting or seriously delaying physicians from providing medically appropriate and possibly lifesaving services to patients who have various pregnancy complications.” He underscored that under the exceptions, hospitals had to protect the “mother’s life and major bodily function.”

The lawsuit says the five plaintiffs “represent only the tip of the iceberg,” and that “millions” of people across the country have been “denied dignified treatment as equal human beings.”

Few states have been more aggressively anti-abortion than Texas, the home of the original Roe case. Even before the Supreme Court overturned Roe, Texas passed a law allowing civilians to sue anyone who provided or aided and abetted an abortion, with rewards of at least $10,000 for successful suits.

Zurawski became pregnant in early 2022 after 18 months of fertility treatments. In her 17th week of pregnancy, and the day after she made the guest list for her baby shower, a scan found that her cervical membranes had begun to prolapse. Specialists told her that her fetus, which she had begun thinking of as her baby, would not survive.

Doctors told Zurawski they could perform an abortion only if she became acutely ill or went into labor naturally, or if the fetus’ heartbeat stopped. That night at home, her water broke, but when she went to the emergency room, doctors said she was not in labor. Without amniotic fluid, the fetus would die, but it still had a heartbeat. And because Zurawski’s vital signs were stable, they said, she did not qualify for an exception. The hospital sent her home.

Zurawski and her husband, Josh Zurawski, considered driving 11 hours to New Mexico, but had been told to stay within a 20 minutes’ drive of the hospital in Texas in case she went into labor. She was so worried about being prosecuted, “I didn’t even feel safe Googling options,” Zurawski said. “I didn’t know what they could and couldn’t search.”

Three days later, doctors again told the Zurawskis they could not legally abort the fetus because it still had a heartbeat. At home that night, Zurawski developed a fever, and her husband called the obstetrician to ask to go to the hospital. “We were in this mindset of, ‘Surely now you’ll accept us,’ ” Zurawski said. A nurse told them, he said, that doctors would have to receive approval from the hospital’s ethics board.

He finally rushed his wife to the emergency room later that night. There her fever spiked to 103.2 degrees. Doctors confirmed that she had a blood infection and said her life was now in danger, so they could induce delivery without violating Texas’ abortion ban.

Later that night, she developed a secondary infection. Doctors told Zurawski that they had to give his wife a blood transfusion to stabilize her enough to move her to the intensive care unit. The couple’s families flew in, fearing that she would die.

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Zurawski left intensive care after three days, and the hospital after a week. Two months later, she had an operation to remove scar tissue from her uterus and fallopian tubes, but the doctors were unable to clear one.

Now receiving IVF treatments again, Zurawski said she was left with emotional scarring, as well. “Every ultrasound is going to be terrifying — not just scary, but traumatic,” she said. “Last time I heard a heartbeat inside of me, I was wishing for it to stop.”

Another plaintiff, Lauren Miller, had to travel to Colorado for an abortion.

When she was six weeks pregnant, she suffered such bad nausea and vomiting that she went to the emergency room, where she discovered she was carrying twins. At 12 weeks, a scan revealed that the fetus identified as Baby B was not growing as fast as its twin, and tests revealed that it had a genetic defect called Trisomy 18 and several abnormalities, including a malformed brain and an incomplete abdominal wall and heart.

A specialist told her that she needed to seek an abortion out of state to save her own life and the life of Baby A. A few days later, Miller, 35, was hospitalized with chills and severe dehydration. She and her husband went to Colorado at 15 weeks to abort Baby B. She is scheduled to deliver the surviving twin later this month.

“The feeling of packing was almost like we were fleeing Texas, which was such a strange feeling,” she said. “I’m from Texas, I have generations of Texans — here we’re fleeing Texas.”

Lauren Hall, another plaintiff, was 18 weeks pregnant and had set up a crib and bought clothes for the baby girl she had named Amelia when scans revealed that the fetus had no skull and an undeveloped brain.

A specialist urged her to go out of state, but to tell no one where she was going or why, lest someone report her to a hotline that anti-abortion groups set up.

Hall, 28, said many of her relatives and neighbours considered themselves “pro-life” and believed there was a “loophole” if the fetus had a fatal condition. And many of her friends did not understand that the procedure she obtained at a clinic outside Seattle, dilation and curettage, was the same as an abortion.

“A lot of them are in support of this ban, but they don’t understand the scale of it,” she said. “They had this very narrow idea of what somebody who seeks an abortion looks like. They think it’s somebody who’s loose, who doesn’t want to take birth control.”