Texas Abortion Ban Viewed as Virtually Untouchable. A Lawsuit Aiming to Change That Has Problems.

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In an era of increasing litigation over state abortion bans since the U.S. Supreme Court overturned Roe v. Wade, one ban in Texas so far has avoided a post-Roe legal challenge.

Texas’ Heartbeat Act, also known as SB8, bans abortions performed after a fetal heartbeat can be detected (at around six weeks’ gestation). The law includes a one-of-a-kind enforcement mechanism that shields officials usually tasked with enforcing state law from being sued at all.

Now, five women have sued Texas in state court, challenging both the Heartbeat Act and another Texas abortion ban. In the lawsuit filed Monday, the women claim various doctors denied them abortions that were “medically necessary” and potentially “lifesaving,” because the doctors feared liability (such as fines, imprisonment, or loss of medical licenses) under the two Texas laws.

The plaintiffs—Amanda Zurawski, Lauren Miller, Lauren Hall, Anna Zargarian, and Ashley Brandt—say they each faced a medical emergency during their pregnancies.

Miller and Brandt say they faced complicated twin pregnancies in which doctors told them that terminating one twin would offer the best chance to preserve the life and health of the other.

Zargarian’s water ruptured prematurely before the point of viability of the baby, and she went into sepsis. Hall’s unborn baby was diagnosed with anencephaly and given no chance of survival. And one of Brandt’s twins was diagnosed with the same condition, putting the second twin at risk of death.

Four of the five women ultimately left the Lone Star State to seek abortions in other states.

In addition to prohibiting most abortions in Texas after detection of a fetal heartbeat, the Heartbeat Act also prohibits individuals from assisting a person in obtaining an illegal abortion. As the law is written, state officials are prevented from enforcing the law and also are granted sovereign immunity against anyone who sues them to challenge enforcement.

Instead, under the law, private citizens both in and outside Texas may bring a civil enforcement action against someone who performs a prohibited abortion in the state. Each prohibited abortion is subject to a $10,000 penalty.

That civil enforcement mechanism—criticized by abortion advocates as “vigilantism”—had, even before the fall of Roe, flummoxed opponents and resulted in two trips to the U.S. Supreme Court. If a challenger wanted to block the law, who would she sue if any citizen conceivably could enforce the law, but Texas state officials couldn’t?

On the second trip to the U.S. Supreme Court, the justices determined that the only state entity or official with even the potential authority to enforce the Heartbeat Act would have been the Texas Medical Board or its director. That makes Stephen Brint Carlton, executive director of the Texas Medical Board and one of the named defendants in this new lawsuit, the only state official who legally may be sued in a challenge to the Heartbeat Act.

The other named defendants in the suit—the state of Texas and Texas Attorney General Ken Paxton—have no authority to enforce the Heartbeat Act. That means a claim against them is possible only under the state’s “trigger ban,” an old state law banning abortion that went back into effect after the Supreme Court’s Dobbs v. Jackson Women’s Health decision overturning Roe v. Wade.

The trigger ban lacks the Heartbeat Act’s civil enforcement mechanism, but provides that violators may be charged with a first- or second-degree felony. It also permits the state’s attorney general, currently Paxton, to file an action to levy a civil penalty of $100,000 for each prohibited abortion performed.

But the five women who sued in state court will have to overcome a significant weakness: Both the Heartbeat Act and the trigger ban provide an abortion exception for medical emergencies, and permit doctors to use their “best medical judgment” when determining what those emergency medical situations are.

The plaintiffs claim that certain terms in each law are ambiguous—for example, what constitutes a “risk” versus a “serious risk” of substantial harm to the pregnant woman?

Among other claims, they argue that the language of the laws differs on standards for a physician’s medical judgment and has resulted in confusion among doctors who must grapple with whether certain emergencies qualify under the specified exceptions.

Joining the women in the lawsuit are two female doctors who are suing in their individual capacities as well as on behalf of their patients. This appears to be yet another problem with the lawsuit.

In any lawsuit, claimants must prove they have standing—an injury that is redressable by a court. Although the Supreme Court has spoken on what standing requires in federal court, state courts are guided by state statutes establishing those conditions.

In Texas, the general test for standing is whether there is a real controversy between the parties that actually would be solved by the judgment sought. If a plaintiff can’t demonstrate a real injury, one that is “fixable” by the court, the claim will be dismissed.

It is not readily obvious that the two doctors here—who either waited until the final minutes to intervene in these emergency situations or sent their patients out of state to have treatment performed elsewhere—were themselves harmed by the operation of either Texas law. How the court will rule on the standing (or lack thereof) of the two doctors remains a significant question.

The lawsuit is long on anecdotes and hypotheticals but short on law. In addition to the tired trope that abortion is “health care,” the complaint uses a particularly strange choice of words by stating that pregnant “people” are being harmed by both Texas laws.

Happy Women’s History Month.

In all, the lawsuit requests a declaration from the Texas court on what is allowed by the medical emergency exceptions and a clarification of the rights and obligations of the parties to the lawsuit.

The women also request a finding that the equal rights of “pregnant people” under the Texas Constitution have been violated. They seek a permanent injunction preventing Carlton, Paxton, and the state from enforcing either abortion ban.

In an effort to blur the lines between elective abortion and true medical emergencies that require intervention, The New York Times reports that doctors are having to “think like lawyers” when patients arrive with ectopic pregnancies, miscarriages, or hemorrhaging.

The Times recently quoted Dr. Alison Haddock, an emergency physician in Houston, who callously inquired: “Do we wait until the fetus is definitely dead, or is mostly dead good enough? … If they’re telling us to wait for the condition to be fully emergent, how much bleeding is too much?”

Of course, if something is “dead,” that means it was once alive. And the presence of that unborn life is the moral conundrum that abortion advocates can’t seem to overcome.

Meanwhile, in another part of Texas, court watchers and parties on both sides of the abortion debate wait anxiously for an outcome that could alter future litigation over abortion. In federal court in Amarillo, a lawsuit filed by the Alliance for Hippocratic Medicine against the U.S. Food and Drug Administration claims that the agency’s approval in 2000 of the abortion drug mifepristone was unlawful.

A decision in that lawsuit is expected any day now.

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