Several women who say Texas’ abortion bans posed significant risks to their health have sued the state this week, opening a new front in the legal battles that have emerged since the Supreme Court overturned national abortion rights protections last year.
Five women allege in the lawsuit that uncertainty around when medical emergency exemptions in Texas’ abortion laws apply exacerbated medical emergencies that put their lives, health and fertility in danger.
“To the extent Texas’s abortion bans bar the provision of abortion to pregnant people to treat medical conditions that pose a risk to the pregnant person’s life or a significant risk to their health,” the lawsuit says, “the Bans violate pregnant people’s” rights under the state constitution’s provisions protecting fundamental rights and the right to equality.
The lawsuit is not seeking to block Texas’ abortion bans outright. Rather, the women – who are joined by two medical providers in the lawsuit – ask the court to clarify that abortions can be performed when a physician makes a “good faith judgment” that “the pregnant person has a physical emergent medical condition that poses a risk of death or a risk to their health (including their fertility).”
The women’s complaint details harrowing stories of being denied abortion care when they faced emergency complications in their pregnancies, which were all wanted. They filed the lawsuit Monday evening in state court in Austin, Texas.
Texas, its Attorney General Ken Paxton, the Texas Medical Board and its Executive Director Stephen Brint Carlton are listed as defendants in the lawsuit.
A spokesperson for Paxton said in a statement that he “is committed to doing everything in his power to protect mothers, families, and unborn children, and he will continue to defend and enforce the laws duly enacted by the Texas Legislature.”
The spokesperson, Paige Willey, also pointed to guidance Paxton issued after last year’s Supreme Court ruling that said the state’s trigger law “protects women facing life- threatening physical conditions resulting from pregnancy complications.”
A spokesperson for the state medical board did not respond to a request for comment from CNN. Gov. Greg Abbott’s office also did not immediately respond to CNN’s inquiry.
Texas a flashpoint in legal fight over abortion
Texas, which has arguably the most aggressive abortion restrictions in the country, has been the site of several legal battles over abortion since before the Supreme Court overturned Roe v. Wade last June.
A challenge that predated that ruling to Texas’ 2021 civil enforcement abortion ban – which allows private civil lawsuits against anyone accused of facilitating abortion after a fetal heartbeat is detected, which is around six weeks into the pregnancy – also went up to the Supreme Court. The justices allowed the law to stay in effect, even though at the time Roe was still on the books.
Texas also preemptively sued last year to block guidance from the Biden administration that instructed health care providers that federal law obligated them to provide abortion care in medical emergencies. A federal judge sided with Texas and halted enforcement of the guidance – which threatened civil penalties and conditioned federal funding on compliance – in the state.
The abortion laws in question in the new lawsuit are the six-week civil enforcement ban, a so-called “trigger ban” that went into effect after the Supreme Court’s ruling last year, and a pre-Roe abortion ban. The statutes contain language allowing exemptions for medical emergencies.
“Yet inconsistencies in the language of these provisions, the use of non-medical terminology, and sloppy legislative drafting have resulted in understandable confusion throughout the medical profession regarding the scope of the exception,” the lawsuit says.
The lawsuit also highlights a letter from the civil enforcement ban’s legislative sponsor to the head of the Texas Medical Board, raising concerns about reports that women facing dire health emergencies from their pregnancies were being denied care that the lawmaker said was covered by the exceptions in the state abortion code.
“Texas law makes it clear that a mother’s life and major bodily function should be protected. Any deviation, such as these allegations, should be investigated as potential malpractice and a non-physician (including hospitals) instructing a physician to act should be investigated as a prohibition on the corporate practice of medicine,” the August 2022 letter, from Republican state Sen. Bryan Hughes, said. He asked the board to issue guidance on the issue.
It remains to be seen what kind of success Monday’s lawsuit will have. The Texas State Supreme Court, which is typically the final arbiter of whether state laws comply with the Texas constitution, has ruled in favor of Texas abortion restrictions in previous disputes that went up to the state high court.
The women who brought the lawsuit, all Texas residents, say they experienced irreparable harm – including emotional trauma and risks to their physical health – because of the hoops they had to jump through to obtain the care they needed.
One plaintiff in the lawsuit, Amanda Zurawski, says she “was forced to wait until she was septic to receive abortion care, causing one of her fallopian tubes to become permanently closed.”
As Zurawski and her husband previously told CNN, she became pregnant after a year and a half of fertility treatments. But at 18 weeks into her pregnancy – well before the point of viability – her water broke, and she was told by her doctor that the baby would not survive, according to her account.
However, her doctors told her that they would not terminate her pregnancy until she was “considered sick enough that my life was at risk,” she recounted to CNN last year, adding that she was told that could take hours, days or even weeks.
Zurawski and her husband decided they could not risk the several hours it would take to travel to another state where abortion would available. When she fell under a fever that spiked up to 103 and began exhibiting signs of sepsis, her doctors felt that they could legally induce labor without violating Texas’ abortion laws, according to the lawsuit. However, she went on to develop a secondary infection and septic shock, and her family flew into Austin, Texas fearing she could die. While she eventually recovered, the infections caused damage to her reproductive organs.
Another plaintiff in the lawsuit, Lauren Miller, was pregnant with twins but learned through testing that one of the fetuses had multiple fetal abnormalities that made it highly unlikely that it would survive to birth, according to the lawsuit. Her specialists suggested she travel out of state, but evaded giving her and husband direct answers to their questions, the lawsuit says.
It “was apparent that their doctors, nurses, and counselors were all fearful of speaking directly and openly about abortion for fear of liability under Texas’s abortion bans,” the lawsuit states.
Miller ultimately traveled to Colorado to obtain a so-called selective reduction – a procedure to abort the likely non-viable fetus to preserve the health of the other fetus and the mother – and Miller is now due to deliver the other fetus this month.
A third plaintiff, Lauren Hall, traveled to Seattle for an abortion after being told at an 18 week scan that her fetus had a condition that gave it no chance of survival. She was told that the condition, according to the lawsuit, posed risks of hemorrhage and preterm birth, among other risks. But she says her specialist in Texas would not give her information about her options or even transfer her medical records to an abortion provider.
The fourth plaintiff, Anna Zargarian, says in the complaint that at 19-and-a-half weeks into a pregnancy her water broke. She was diagnosed with preterm premature rupture of membranes (PPROM) and told that her fetus would not survive to birth, according to the lawsuit.
But even as doctors said the recommended treatment was an abortion, they told Zargarian they were barred from performing one because the fetal heartbeat was still detectable, according to the lawsuit. Eventually she obtained the procedure in Colorado, but now faces fear about becoming pregnant in Texas again because she has been told she will be at high risk of developing conditions linked to PPROM, the lawsuit says.
The fifth plaintiff, Ashley Brandt, also says she faced complications in a pregnancy with twins, during which one fetus had conditions that were putting the other fetus at risk. Though she was ultimately able to obtain a selective abortion in Colorado, according to the lawsuit, she faced other complications that at one point sent her to the emergency room where she felt “a distinct uneasiness and confusion.”
“It appeared that the medical staff thought they were not supposed to know about Ashley’s abortion or discuss it with her,” the lawsuit said, adding that the remainder of her pregnancy “was plagued by fear and stress.” She ultimately delivered a healthy baby at 38 weeks into the pregnancy.
In a statement, Vice President Kamala Harris praised the lawsuit, saying it demonstrates that the fears about “the harm” patients “would experience as a result of Texas’ extreme laws” had turned into reality.
“The lawsuit includes devastating, first-hand accounts of women’s lives almost lost after they were denied the health care they needed, because of extreme efforts by Republican officials to control women’s bodies,” Harris said.
This story has been updated with additional details.
CNN’s Elizabeth Cohen and John Bonifield contributed to this report.