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June 23, 2024 FEATURED ARTICLE

Two Years After Dobbs: Pregnant Peoples’ Lives are Still on the Line and the Texas Supreme Court Looks Away

by Diana Kasdan

Two years ago today, in Dobbs v. Jackson Women’s Health Organization, the United Supreme Court overruled Roe v. Wade and held that the right to abortion is not a fundamental liberty under the federal constitution. As hostile states quickly began enforcing abortion bans, state courts became a primary venue for lawsuits seeking to protect pregnant people’s access to abortion care. Just last month, the Texas Supreme Court issued a decision in a case raising state constitutional claims on behalf of 20 individual women who suffered obstetrical complications and were denied or delayed abortions under Texas’s abortion bans. The court concluded that plaintiffs had not “demonstrated that the part of the [abortion ban] that permits life-saving abortion is narrower than the Texas Constitution allows.” Adding insult to injury, the court’s threadbare opinion fails to grapple with the devastating physical and emotional harms plaintiffs and their families suffered at the hands of Texas’s abortion bans. Ironically, despite Dobbs’s claim that it was giving states the final word on their abortion laws, the Texas Supreme Court declined to critically examine what its state constitution requires when the health, future fertility, and lives of pregnant people are on the line. With several pending cases raising similar claims, and new ones sure to develop in the coming years, other state high courts have an opportunity, and obligation, to do better.  

In Dobbs, a majority of the Court held that the Fourteenth Amendment’s guarantee of liberty does not encompass the right to abortion. It went as far as suggesting in dicta (since no party raised the claim), that abortion bans do not implicate the Equal Protection Clause protections against gender discrimination. While the analytical, doctrinal, and historical errors in the majority’s liberty and equality analysis have been thoroughly contested and debunked, the decision severely limits the near-term prospects for challenging abortion bans in federal courts. However, in purporting to return authority to regulate abortion for any “legitimate reasons” to the states, one issue the majority did not opine on was whether this included authority to prohibit abortion when medically indicated to preserve a pregnant person’s life, health, or future fertility.  As the Dobbs joint dissent queried: “Must a state law allow abortions when necessary to protect a woman’s life and health? And if so, exactly when? How much risk to a woman’s life can a State force her to incur… short of death, how much illness or injury can the State require her to accept consistent with the [Fourteenth] Amendment’s protection of liberty and equality?” Now courts in states around the country are being asked to resolve this question as a matter of state constitutional law.

In states where both the legislature and courts are inhospitable to full decriminalization of abortion, cases challenging unworkable medical exceptions seek a limited but critical intervention. By clarifying the scope of the state’s medical exceptions, courts can, at a minimum, ensure physicians are able to provide abortion care in dire situations without fear of harsh criminal, financial, and professional penalties. And when physicians are not allowed the discretion to provide abortion care to treat complications during pregnancy, courts must take a hard look at the constitutionality of the bans that tie their hands and put the health and lives of pregnant people on the line.

The Center for Reproductive Rights filed the first of these legal challenges, Zurawski v. Texas, on March 6, 2023. Originally, the plaintiffs were five women, who experienced severe health crises during their pregnancies, and two physicians. As news of the case spread, more women stepped forward with similar accounts of suffering life-threatening health complications and emotional trauma while being denied or delayed urgent abortion care. For example, after Kiersten Hogan’s water broke prematurely, not only did a hospital deny her an emergency abortion, but she was told that she could face legal penalties if she sought abortion care elsewhere. Ultimately, 20 patient plaintiffs shared their harrowing experiences in court filings, four of who bravely gave testimony at a two-day hearing before the trial court. Samantha Casiano shared her experience of learning at 20 weeks that her daughter had anencephaly, a condition where the fetus develops without a skull. She recounted how she was denied an abortion and forced to continue her pregnancy to term, then watch her daughter suffocate to death for the four short hours of her life. While the trial court granted plaintiffs’ request for temporary injunctive relief, an appeal by the state automatically stayed the injunction and sent the case directly to the Texas Supreme Court.

In a May 31, 2024, decision, the Texas Supreme Court refused to meaningfully clarify the unworkable medical exceptions and rejected the constitutional claims of the 20 Texans denied, or delayed, abortion care necessary to treat dire pregnancy complications.

In some respects this decision was not wholly surprising: In a related emergency case brought by the Center on behalf of Kate Cox when she was 20 weeks pregnant with a fetal diagnosis of full Trisomy 18, this same court stepped in to block her from receiving urgent abortion care -- despite her lethal fetal diagnosis and her repeated emergency room visits for pregnancy complications. And the novel claims raised in both cases and fully briefed in the Zurawski appeal were not ones the court had shown receptivity to or considered previously. As Professor Martha Davis documents in a comprehensive new Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life”, prior to Dobbs the question of a pregnant person’s constitutional right to life and health had been little explored by federal courts or state courts looking at independent protections under state constitutions.

Thus, while not unexpected, the opinion was deeply disappointing in its failure to fully weigh the extensive evidence plaintiffs presented, and in its cursory consideration of the important constitutional questions at the heart of their case.

In a terse 38-page opinion, the high court repeatedly refers to plaintiffs’ claims and arguments as those of “the Center” (the legal organization representing plaintiffs) – a pointed and dehumanizing rhetorical device. Aside from a passing mention of the pregnancy diagnoses of the four plaintiffs who testified in the lower court – -including lead plaintiff Amanda Zurawski, whose pain and injuries the court claims were “not the results the law commands” – the opinion focused almost exclusively on the claims of one of two physician plaintiffs. The opinion fails to analyze the patient plaintiffs’ constitutional rights and wholly ignores the devastating harms each one of them suffered as documented in their 135-page verified petition.  On the heels of this virtual erasure of the plaintiffs’ experiences, the court prefaces its brief consideration of their constitutional claims with the wholly inapt reminder: “Courts do not issue injunctions, however, based on lists of hypothetical future possibilities. . . . A court does not strike down a law as unconstitutional based on hypotheticals situations.”

The lived (not hypothetical) experiences of the plaintiffs were not all the court ignored.  Dozens of experts, impacted communities, and affected individuals filed a total of 13 amicus briefs in support of plaintiffs. In deeply personal detail, family members of the plaintiffs shared the stress, anguish, and terror they experienced as their loved ones were denied urgently needed health care. Leading medical societies documented how the Texas abortion bans are preventing clinicians from providing the standard of care to pregnant Texans and diminishing the availability of obstetrical care in a state already facing a shortage of OB-GYN physicians. Faith groups discussed how the bans deprive people of diverse faiths of their moral authority and right to access medically necessary abortion care consistent with their religious traditions. Constitutional scholars addressed the meaning and scope of the Texas constitution’s right to life and the protections it affords pregnant people. Historians documented Texas’s deeply rooted tradition of recognizing a right to abortion to preserve life and health. Abortion funds explained how structural, financial, and logistical barriers prevent Texans from accessing abortion out of state, and the disproportionate and dire impacts this has on people from oppressed communities, including those who need life and health preserving care.  And in a brief arguing that the bans’ unworkable medical exceptions are exacerbating poor maternal health outcomes for Black women, amici NAACP LDF documents how abortion bans also perpetuate a legacy of reproductive oppression of black women dating back to state sanctioned chattel slavery, rape, and forced pregnancy and childbearing.  All of these briefs were part of the record before the court-- but it did not acknowledge or respond to a single one.

By ignoring Plaintiffs’ experiences as well as the supportive data, history, and scholarship presented by amici, the court evaded the overwhelming weight of evidence in the record before it. For example, citing nothing more than the text of Texas’s past abortion bans, the court concludes that 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. Throughout the decades, no settled formulation of the scope of that protection existed.”  In contrast, the deeply researched amicus brief from expert scholars in the history of abortion medicine, law, and regulation analyzes dozens of medical journals and state court cases dating back to the mid-1800s when Texas was admitted to the Union and first criminalized abortion. The brief documents the shared understanding among Texas physicians, law enforcement, legislators, and courts that governing law and medical standards afforded physicians broad discretion and gave “pregnant women and physicians in Texas the freedom to seek or perform abortions when appropriate to preserve their health.”

The opinion is equally evasive when considering application of the state constitution’s “due course of law” provision – which includes an explicit right to life and liberty for all Texans – to the circumstances presented in the case.  An amicus brief submitted by preeminent legal scholars in the history, development, and interpretation of state constitutions argues, as did plaintiffs, that the right to life guaranteed by the Texas Bill of Rights is an affirmative one that necessarily encompasses a pregnant person’s right to protect their health, safety, and wellbeing. The brief provides a careful analysis of the language and structure of key constitutional provisions, legal and philosophical authorities influential to the Texas framers, relevant state jurisprudence and scholarship, and instructive decisions by sister courts. Rather than consider and independently interpret these sources, the court opted to assume that if the due-course clause does protect substantive rights, then “the right to life would be found among them” and, “in the abstract,” agrees that a constitutional  “guarantee of ‘life’ covers more than ‘biological existence.’”  Nonetheless, considering only the testimony of one obstetrician plaintiff, the court concludes she failed to present evidence “sufficient to show that the right to life requires more than what the law currently affords.” Further, in so doing, the court offered no guidance on what the Texas constitution protects beyond mere “biological existence,” and gives no consideration of how this constitutional right applies to the 20 women denied life and health preserving medical care. While the court purports to not foreclose future cases, it is difficult to imagine a case with more direct evidence of the drastic harms Texans and their families are enduring under these extreme bans.

Thus, while the Zurawski decision has immediate and serious ongoing repercussions for the lives of pregnant people in Texas, it is unlikely to have far-reaching jurisprudential value for other state courts. And with legal challenges to medical exceptions pending in Tennessee and Idaho, and now in a federal court case too, the Texas Supreme Court will not be the last word on this issue. 

Importantly, there is already a persuasive body of state court jurisprudence that can lead the way for future decisions. For decades, state courts have decided challenges to abortion bans and restrictions by interpreting the meaning of their own, independent state constitutional provisions, including rights of liberty, privacy, equality, and autonomy.  And in doing so, many of these courts have engaged in robust consideration of state constitutional text, meaning, history, and purpose to build foundational judicial precedent.  For example, in a 2019 decision grounded in an expansive historical analysis of its state constitution, the Kansas Supreme Court held that the right of “personal autonomy” protects the right to “control one’s own bodies, to assert bodily integrity, and to exercise self-determination,” including the decision to have an abortion. And this year, in a groundbreaking decision running over 200 pages, the Supreme Court of Pennsylvania held that laws uniquely burdening pregnancy or abortion constitute sex discrimination and are presumptively unconstitutional under the state Equal Rights Amendment. As more and more cases seeking protection for abortion and reproductive autonomy work their way through the state courts, other high courts can take a page from these exemplars for developing state constitutionalism and stepping up as guardians of individual rights and liberties.  

Diana Kasdan

Director U.S. Judicial Strategy, Center for Reproductive Rights

Diana Kasdan serves as the Director for Judicial Strategy in U.S. Programs. Diana leads a team of lawyers and researchers producing original legal analysis and content; authoring and organizing amicus briefs and campaigns; engaging legal, academic, and progressive allies in our work; and developing strategies to expand protections for reproductive rights and advance positive constitutional change over the long term.

Diana brings over 15 years of experience as a public interest lawyer and a decade advocating for reproductive rights and justice. As a senior staff attorney with the ACLU Reproductive Freedom Project, Diana worked on a range of reproductive rights litigation and amici curiae efforts in federal and state courts and developed advocacy campaigns to improve the conditions and care of pregnant women who are incarcerated.

Immediately prior to joining the Center, Diana was at the Brennan Center for Justice. While serving as senior counsel in the Democracy Program, Diana focused on litigation and advocacy to prevent voter disenfranchisement and authored several publications examining the laws and policies impacting voter participation. In her role as Director of Foundation Relations, Diana led all aspects of foundation fundraising strategy and partnerships.

Diana clerked for the Honorable Nicholas G. Garaufis of the United States District Court for the Eastern District of New York. She graduated magna cum laude and Order of the Coif from New York University School of Law where she served as a notes editor for the NYU Law Review and was a Hays Civil Liberties Fellow. She received her B.A. from Washington University.

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