Texas wants to keep growing. As the George W. Bush Institute notes, “Texas is defying the trend [of declining population] by continuing to expand.” The state has the second-highest population and is on track to become larger than California. It also has one of the youngest populations, with a median age of 35, and one of the highest birth rates in the United States.
But many women of child-bearing age are reluctant to move to or stay in Texas. In recent years, more women have died giving birth in Texas than in any other state. From 2018 to 2022, the number of maternal deaths in Texas more than doubled that of the state with the second highest number of maternal deaths, Florida. Across roughly the same time span, the rate of maternal mortality in Texas increased 56 percent. These troubling statistics are in large part due to the ripple effects of changing laws regarding reproductive care.
Although Dobbs v. Jackson Women’s Health Organization ostensibly “return[ed] the issue of abortion to the people’s elected representatives,” courts have remained entangled in the Pandora’s box of questions triggered by the Supreme Court’s decision in Dobbs to overturn Roe v. Wade. Two 2024 court decisions — State v. Zurawski from the Texas Supreme Court and Texas v. Becerra from the Court of Appeals for the Fifth Circuit — sought to clarify what pregnant women should, and should not, expect from Texas hospitals if they present with pregnancy complications. But neither decision resolved the ripple effects of the abortion laws on women experiencing pregnancy complications.
Physicians’ fear of legal and criminal consequences to providing medically-necessary abortions in Texas has resulted in at least three pregnant women dying and many more experiencing severe health crises. Zurawski and Becerra further entrench the perceived binary in which providers feel trapped: protect oneself from legal liability or prioritize individualized patients’ needs. The Zurawski decision, in particular, is based on two legal fictions, the first concerning what constitutes a nonviable pregnancy and the second concerning the difference between health-threatening and life-threatening medical conditions. Rather than resolving or clarifying physicians’ duty to their patients, Zurawski and Becerra add to existing confusion and fear.
Jointly, Zurawski and Becerra determined that an abortion is not permissible in medical emergencies unless a woman is at risk of death. Both cases trace their origins to the 2021 passage of Texas Senate Bill 8 (S.B. 8) and the 2022 Dobbs decision. S.B. 8 gives all private citizens the right to bring an enforcement action against any individual who they believe “perform[ed]” or “aid[ed] and abet[ed]” an abortion. S.B. 8 eliminated non-mutual preclusion, meaning that even if a physician defeated one lawsuit accusing them of violating S.B. 8, they could be sued by anyone else in the State of Texas for the exact same thing — ad nauseum. As Justice Sotomayor explained, this legal mechanism is “uniquely punitive” because even if physicians succeed in defending themselves in one case, “they remain vulnerable to suit by any other plaintiff anywhere in the State for the same conduct.” In addition to monetary liability via S.B. 8, physicians face criminal penalties, including up to life in prison, for performing an illegal abortion.
Because the penalties are so high, S.B. 8 has had an immense chilling effect on physicians’ willingness to treat patients by terminating pregnancy, even when doing so is clinically indicated. The plaintiffs in State v. Zurawski included women who had been denied medically necessary emergency abortions while pregnant. Amanda Zurawski, the named plaintiff, experienced “preterm pre-labor rupture of membranes,” a dangerous condition that resulted in her pregnancy being nonviable. But because there was still a fetal heartbeat, she was denied an abortion, causing her to go into sepsis and nearly die. Kiersten Hogan, another one of the plaintiffs, delivered a stillborn baby at nineteen weeks after the hospital told her she was not “sick enough” to receive a medically necessary abortion. And Elizabeth Weller was told she could “either stay [at the hospital] and wait to get sick” or “wait ‘till [her] baby’s heartbeat stop[ped]” to get an abortion after she experienced a premature rupture of membranes. Seventeen other women with similar stories joined Zurawski, Hogan, and Weller as plaintiffs.
In Zurawski, the Texas Supreme Court announced a two-part test for physicians to determine whether an abortion is legal. The physician must first ask whether “the patient [has] a physical condition aggravated by, caused by, or arising from her pregnancy that could lead to her death.” If she does, then the physician must ask whether “the condition pose[s] a risk of death or serious risk of substantial impairment of a major bodily function unless an abortion is performed.” Because the second question is predicated on an affirmative response to the first, the two-part test essentially boils down to whether the patient risks dying if she does not receive an abortion. Plaintiffs argued that medically necessary abortions should be available to patients that are diagnosed with a “life- or health-threatening condition, without waiting for the condition to become imminently life-threatening.” The Texas Supreme Court rejected that argument. It determined that medically necessary abortions are only available in life-threatening situations, not when a woman faces the potential of severe health complications.
Before January 2024, the Zurawski state supreme court decision would have been preempted by federal law requiring hospitals to administer clinically indicated care under the Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA requires hospitals “to provide stabilizing treatment for patients with EMCs [emergency medical conditions].” In July 2022, in the wake of Dobbs, the Biden Administration’s Department of Health and Human Services (HHS) issued guidance reminding hospitals that they could not deny women medically necessary abortions during health emergencies. In the 2023 Term, the Supreme Court granted certiorari and then dismissed as improvidently granted Moyle v. United States. In Moyle, plaintiffs — the State of Idaho and the Idaho Speaker of the House of Representatives — challenged HHS’s authority under EMTALA to require hospitals to provide abortion if it is “necessary to prevent grave harms to the woman’s health.” Because the case was dismissed by the Supreme Court, EMTALA ostensibly remained the law of the land.
Less than four months after dismissing Moyle, though, the Court denied certiorari to Texas v. Becerra. In Becerra — handed down by the Fifth Circuit on January 2, 2024, and denied certiorari on October 7, 2024 — the Fifth Circuit rejected EMTALA’s preemption authority regarding medically necessary abortion. By denying certiorari, the Supreme Court allowed the Fifth Circuit’s interpretation to stand: The states within the Fifth Circuit’s jurisdiction could disregard EMTALA and come up with their own standards regarding pregnancy emergencies. The panel reasoned that HHS exceeded its statutory authority when it informed hospitals that, under EMTALA, they “must provide an abortion when that care is the necessary stabilizing treatment for an emergency medical condition.”
In Texas, where approximately 390,000 live births occurred in 2023, the combined effect of Zurawski and Becerra is that physicians no longer have any insulation from legal liability. They thus respond to pregnancy emergencies with the law — rather than their patient’s immediate health needs — front of mind. The Zurawski two-step test adds to what has already become a hodgepodge of statutes, case law, regulation, and guidance that physicians have been instructed to follow when emergency situations occur that previously could have been treated by removing fetal tissue.
A key problem with the Texas Supreme Court and Fifth Circuit’s decisions is that the lines that exist between legal categories do not mirror the complex health realities with which physicians must contend every day in their practice. The Texas Supreme Court wrote in Zurawski that S.B. 8 “plainly does not permit abortion based solely on a diagnosis that an unborn child has an abnormal condition, even a life-limiting one.” That being said, the Texas Health and Safety Code notes that removing a pregnancy is not an “abortion” if the purpose is to “remove a dead, unborn child whose death was caused by spontaneous abortion” — i.e., a miscarriage. Removal of miscarried pregnancies is acceptable; removal of nonviable pregnancies is not.
The Texas legislature designated “fetal heartbeat” as the arbiter for whether a physician can induce an abortion, stating that “[a] physician does not violate [S.B. 8] if the physician performed a test for a fetal heartbeat . . . and did not detect a fetal heartbeat.” In justifying its reliance on fetal heartbeat for miscarriage care, S.B. 8 notes, that “[a] fetal heartbeat has become a key medical predictor that an unborn child will reach live birth” and that “cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac.” But fetal heartbeat isn’t foolproof. Fetuses with delayed or irregular heartbeats may be viable, and fetuses with regular heartbeats may be nonviable. The fetal heartbeat binary is, like many legal frameworks, both under- and overinclusive.
Prior to S.B. 8, the difference between a nonviable pregnancy and a miscarriage was legally inconsequential; Treatment for each was based on what was clinically indicated and what the woman decided. Now, the line between the two conditions matters immensely. In Texas, dilation and curettage (D&C) is legal if there is no fetal cardiac activity. In contrast, if there is slowed cardiac activity, even if the fetus is otherwise nonviable, D&C is not legal. But, again, the line between “miscarriage” and “nonviability” is inherently flawed. The American College of Obstetricians and Gynecologists explains that there are “two contexts” in which the term “viability” is used: in assessing (a) whether a fetus can progress through pregnancy and (b) whether the fetus can survive outside the womb. Miscarriage, defined as “the loss of a pregnancy before 20 weeks of gestation,” is only one subset of nonviable pregnancies.
Anti-abortion groups argue that laws restricting abortion access do not implicate miscarriage care. “A straightforward reading of laws restricting abortion of a living fetus provide [sic] clear evidence that treatment of miscarriage is not prohibited by law (as the intent is to remove a deceased fetus),” writes the Charlotte Lozier Institute, the research and education arm of the Susan B. Anthony Pro-Life America organization. But the reality of using fetal heartbeat as the arbiter for whether a nonviable fetus can be removed is that many women, such as Kiersten Hogan — one of the plaintiffs in the Zurawski case — must risk their lives to carry fetuses that have no chance of survival. “A pregnancy in which the fetus no longer has a heartbeat” is only one of six categories of pregnancy that are considered “nonviable.” Ectopic pregnancy, for instance, is considered nonviable but cardiac activity is likely still present. Same with congenital defects that result in fetuses that will not survive outside the womb.
Texas officials have made good on their threats of civil suits and prosecution for terminating pregnancies that still have cardiac activity. In December 2023, a Dallas woman named Kate Cox asked a Travis County judge to permit her to receive an abortion due to her fetus having been diagnosed with full trisomy 18, a fatal chromosomal abnormality. The Travis County judge granted the request, but Texas Attorney General Ken Paxton challenged the ruling and the Texas Supreme Court halted the lower court’s order permitting Cox to receive the abortion. In addition to opposing Cox’s claim, Paxton also sent a warning letter to three hospitals, threatening suit if they provided Cox an abortion. Cox ultimately left the state to receive an abortion, determining that the health risks — including loss of fertility — were too high to wait to meet Texas’s threshold. Cox’s experience fits into the category of pregnancies that exhibit fetal cardiac activity, are nonviable, and are dangerous to the mother.
Pregnancy complications that result in nonviability are common. Studies show that at least one of every four known pregnancies ends in miscarriage. Risk factors, such as age, increase the likelihood of these conditions. Many cases of miscarriage and late-term pregnancy loss occur due to chromosomal abnormalities that result in fetuses that cannot survive outside the womb. As the Zurawski court recognized, these situations are “filled with immense personal heartbreak.” But the legal categorizations constructed by the Texas Legislature and Texas Supreme Court obfuscate physicians’ ability to provide care to patients struggling with that immense heartbreak.
The Zurawski court constructed a second legal fiction by drawing a line between what is health-threatening and what is “life-threatening” during pregnancy when, in practice, the categories are impossible to disentangle. According to the Texas Supreme Court, to receive a medically necessary abortion, a woman’s condition must have “the potential to kill [her] . . . but death need not be imminent.” Physicians could therefore be sued under S.B. 8 for providing an abortion for a medical condition perceived as only health-threatening, not “life-threatening.”
Reasonable minds may disagree about what is life-threatening and what is only health-threatening. S.B. 8 says that an abortion is not illegal “if a physician believes a medical emergency exists that prevents compliance” with S.B. 8. But, again, because “[a]ny person, other than an officer or employee of [the state of Texas], may bring a civil action against any person who . . . performs or induces an abortion in violation of” S.B. 8 or “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” the physician’s belief that a medical emergency existed can be challenged in court — again, and again, and again. As a result, many providers err on the side of less liability, which can be literally lethal to women experiencing pregnancy complications.
The Zurawski court recognized that “[a]ll pregnancies carry risks” and that “merely being pregnant may increase a mother’s risk of death or injury.” Indeed, pregnancy itself poses significant health risks. Every year, between 50,000 and 60,000 American women are affected by severe maternal morbidity, or “unexpected outcomes of labor and delivery that result in significant short- or long-term consequences to a woman’s health,” including “conditions or events that would have resulted in a maternal mortality during pregnancy, childbirth, or within 42 days after delivery if not for significant medical intervention.” In practice, compounded health vulnerabilities, which may be hard to pinpoint or identify as “life-threatening,” are often the cause of maternal mortality and morbidity.
Statutes and court decisions regarding reproductive care have impacted hundreds of thousands of pregnant women in Texas — not just those who elect to terminate a pregnancy. As long as threats of lifelong litigation continue to chill physicians’ discretion to provide care, pregnant women in Texas will continue to die. Legal categorizations, like what is a nonviable pregnancy and what is health- versus “life-threatening,” are imperfect at best. The problem, at its core, is that law is more rigid than health. The blunt instrument of the law is ill-suited to address complex health problems, especially during medical emergencies.
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