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Last week, in a widely watched case, the Texas Supreme Court rejected the claims of Amanda Zurawski and her fellow plaintiffs that they had suffered injuries after being denied emergency access to abortion due to lack of clarity in the state’s abortion ban. Zurawski v. State of Texas has offered an important model for lawyers seeking to chip away at sweeping state bans and even eventually undermine Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overturned Roe v. Wade. Now the state Supreme Court’s decision offers a preview of conservatives’ response to the medical tragedies that have been all too common after Dobbs: to blame physicians and hint that the life of the fetus ultimately counts as much as or more than that of the pregnant patient.
From the beginning, Zurawski had significance for patients outside Texas. Republicans have been increasingly hostile to abortion exceptions since 2022, demanding that sexual assault victims report to law enforcement when such exemptions do exist, dropping rape and incest exemptions altogether in many other states, and going so far as to require physicians to prove their innocence rather than necessitating that prosecutors prove their guilt. Nevertheless, exceptions are critical to the post-Dobbs regime: They are popular with voters and offer the hope—in reality the illusion—that abortion bans do not operate as harshly as we may expect.
The Zurawski litigation illuminated how exceptions fail patients in the real world. Physicians, afraid of harsh sentences up to life in prison, turn away even those they feel confident will qualify under exceptions. The exemptions, by their own terms, do not apply to any number of serious medical complications or fetal conditions incompatible with life. The Zurawski plaintiffs argued that Texas’ law should cover these circumstances and that if the opposite was true, it was unconstitutional.
Although this did not succeed in Texas, Zurawski created a blueprint for litigation in other states. It also kicked off a political nightmare for Republicans. Earlier this year, when Kate Cox, a Texas woman who learned that her fetus had trisomy 18, a condition that usually proves fatal within the first year, the state’s Supreme Court denied her petition for an abortion. In the aftermath, Republicans were flummoxed about how to respond.
The Texas Supreme Court offered Republicans one way to address the emergencies Dobbs has produced. The court began by limiting physicians’ discretion about when to intervene. The plaintiffs in Zurawski argued that physicians require protection when they believe in good faith that they need to protect the life or health of their patients. The court disagreed, suggesting that the standard was whether a reasonable physician would believe a particular procedure to be lifesaving.
On the surface, this doesn’t sound so bad. Who doesn’t want doctors to have to act reasonably? But determining how sick a patient must be is never straightforward—and is all the more complicated when the wrong answer will be determined after the fact by a prosecutor and the physicians with whom they consult, and when guessing wrong will result in a penalty of up to life in prison.
The court’s message was that physicians were the problem. They had misunderstood what the court portrayed as a perfectly clear law. Doctors were the ones who had refused to act reasonably and denied help to the patients that the court thought were deserving, like Amanda Zurawski herself. Texas had stressed the same argument throughout litigation in the case.
Republicans may well borrow the same strategy. If Americans don’t like the new reality that Dobbs has brought on, the party will argue, the GOP is not to blame. It is all the doctors’ fault. This allows conservatives to have it both ways: They frighten—or, in the case of Kate Cox’s doctor, block—physicians who might be willing to offer “reasonable” care, then blame the physicians for failing to care for their patients.
The court’s interpretation of the state constitution was just as revealing. The plaintiffs had argued that Texas’ ban discriminated on the basis of sex because only some persons are capable of pregnancy. The court rejected this argument, drawing both on Dobbs and on claims that have emerged in cases about transgender youth. Regulating abortion, the court reasoned, was no different from regulating gender-affirming care—it was a rule governing a specific medical procedure, not discrimination on the basis of sex.
What about the right to life? The Dobbs case held that U.S. citizens have 14th Amendment rights only when that liberty was deeply rooted in history and tradition. Is there a federal or state right to access abortion to avoid death or serious bodily harm? As Reva Siegel and I have written elsewhere, there seems to be historical evidence to support this argument. And the political case for such a right is strong too. If courts say that there is no constitutional limit on state abortion bans—even if patients bleed to death—that will raise yet more grave questions about what Dobbs permits.
The Texas Supreme Court did not rule out the idea that the state constitution recognizes a right to life for the patient—or deny that high courts in other conservative states had identified a right to lifesaving abortions. But if there was such a right, the court noted, it would account for “the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life.” In other words, the court suggested, fetuses too have rights to life, and that means that the state has every right to deny treatment to pregnant patients in an effort to prioritize the well-being of unborn ones. Texas may not yet have written fetal personhood—the idea that fetuses are rights-holding people—into its constitutional law in clear terms, but the idea of fetal rights has already affected the lives of pregnant patients in the state.
Voters don’t seem to like the idea that fetal rights trump patients’ rights. The Texas Supreme Court has suggested that judges, not voters, may be the ones who decide the question.
But even in dictating what happens to pregnant patients across the state, other Republicans will join the court in pointing the finger at the doctors charged with implementing draconian bans. “The law entrusts physicians,” the court explained, “with the profound weight of the recommendation to end the life of a child.”
The U.S. Supreme Court is likely to make things worse for pregnant patients later this month, when it hands down a ruling on whether the federal Emergency Medical Treatment and Labor Act preempts an Idaho ban with very narrow emergency exceptions. None of this makes Zurawski a waste. It may not have changed the reality on the ground for patients in Texas, but it did tell an important story about the kind of America Dobbs has created—and it delivered voters a reminder that they still have the power to change it.
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